Succession of Edward A. Horrell, Sr. .

• Court: Louisiana Court of Appeal
• Decided: May 3, 2022
• Docket: 2021-CA-0168
• Status: Published

Opinion

SUCCESSION OF EDWARD A. * NO. 2021-CA-0168 HORRELL, SR. * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

CONSOLIDATED WITH: CONSOLIDATED WITH:

SUCCESSION OF EDWARD A. NO. 2021-CA-0285 HORRELL, SR.

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 1993-11275 C\W 1993-11701, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge ****** Judge Tiffany Gautier Chase ****** On Application for Rehearing (Court composed of Judge Tiffany Gautier Chase, Judge Dale N. Atkins, Judge Pro Tempore Lynn M. Luker1)

Walter J. Horrell P.O. Box 1244 Covington, LA 70434 COUNSEL FOR APPELLANT

Maria I. O’Byrne Stephenson STEPHENSON, CHAVARRI & DAWSON, LLC 400 Poydras Street, Suite 1990 New Orleans, LA 70130

Jack M. Alltmont SESSIONS, FISHMAN & NATHAN, LLC 400 Poydras Street, Suite 2550 New Orleans, LA 70130 COUNSEL FOR APPELLEES

REHEARING GRANTED; RELIEF DENIED MAY 03, 2022

1 Pro Tempore Judge Lynn M. Luker was appointed by the Louisiana Supreme Court after the

retirement of former Chief Judge James F. McKay, III. 1

TG C DN A Appellant, Walter Horrell, Sr. (hereinafter “Appellant”), in proper person,

LM petitions this Court for rehearing of our November 17, 2021 decision, which L affirmed the trial court’s December 10, 2020 and February 12, 2021 judgments.

Appellant contends that this Court’s decision is contrary to law and questions

whether this Court has jurisdiction to consider his application for rehearing.

On September 22, 2021, the matter was deemed submitted to this Court. By

correspondence dated September 27, 2021, the Court was notified that Appellees,

Edward A. Horrell, Jr. and Gaye Horrell Coffer, were recently deceased. An order

was issued by the panel on October 6, 2021, instructing counsel for the deceased

Appellees to file the respective substitution of parties with this Court on or before

November 8, 2021.2 On November 17, 2021, the opinion was rendered and

transmitted by email only to the parties. The record of this Court indicates that

Appellant had not provided this Court with an email address and the opinion was

not sent to him by regular or certified mail.

2 Proof of substitution of parties was not filed into the record of this Court and as the matter had

been submitted for nearly sixty days, this Court rendered its decision.

1 On December 8, 2021, Cole T. Coffer filed a motion to substitute as

succession representative for Appellee Gaye Horrell Coffer. The following day,

this Court denied the motion as moot noting that the opinion was rendered on

November 17, 2021 and all legal delays for rehearing had elapsed.3

On April 14, 2022, Appellant contacted the Court of Appeal, Fourth Circuit

Clerk’s Office to inquire about the opinion. He maintains that he was unaware that

a decision had been rendered by the Court on November 17, 2021. The Deputy

Clerk mailed a copy of the November 17, 2021 opinion to Appellant by certified

mail.

The judgment of this Court does not become final until all legal delays have

elapsed. See La. C.C.P. art. 2166. Due to a clerical error, Appellant was not

provided with notice of this Court’s decision when it was rendered on November

17, 2021. La. C.C.P. art. 2166(A) provides, in pertinent part, that “[w]ithin

fourteen days of the transmission of the notice of the judgment of the court of

appeal, a party may apply to the court of appeal for a rehearing.” See also Uniform

Rules, Courts of Appeal, Rule 2-18.2(B). “For the purposes of [La. C.C.P. art.

2166], ‘transmission of the notice’ means the sending of the notice via the United

States Postal Service, electronic mail, or facsimile.” La. C.C.P. art. 2166(F). The

delay for filing an application for rehearing does not commence until the day after

notice of the opinion has been given by the Court. State v. Bennett, 610 So.2d 120,

123 (La. 1992). Appellant’s right to seek review of this Court’s decision to the

Louisiana Supreme Court should not be affected by a clerical error of this Court.

The opinion was mailed, by certified mail to Appellant on April 14, 2022, thus,

Appellant had fourteen days from April 15, 2022 to file his application for

3 The order was emailed to the parties on December 9, 2021.

2 rehearing.4 Accordingly, the application for rehearing was timely filed on April 28,

2022.

Furthermore, we find no merit to the arguments raised in Appellant’s

application for rehearing and affirm this Court’s original opinion.

REHEARING GRANTED; RELIEF DENIED

4 April 15, 2022 was Good Friday, a legal holiday, and is not included in the computation of time

for Appellant to file the application for rehearing. La. C.C.P. art. 5059(C)(1).