Automated Summary
Key Facts
Plaintiff Percival Franklin appealed a judgment in a personal injury case involving injuries to his minor child, Shakavon Thomas, sustained in an automobile accident. The trial court, on March 29, 2010, sustained defendants' exceptions including lack of procedural capacity, prescription, and no cause of action. The notice of judgment was mailed April 7, 2010. Plaintiff's motion for new trial filed May 24, 2010 was untimely as it was filed more than seven days after the notice of judgment was mailed. With no timely motion for new trial, the 60-day appeal period expired June 15, 2010. Plaintiff's motion for appeal filed August 13, 2010 was untimely, and the appeal was dismissed.
Issues
The court addressed whether Plaintiff Percival Franklin's appeal was timely filed under Louisiana Code of Civil Procedure Articles 1974 and 2087, examining if the motion for new trial was timely and if the appeal was filed within the required 60-day period after the motion for new trial deadline expired.
Holdings
The Court dismissed the appeal as untimely. Plaintiff's motion for new trial was filed on May 24, 2010, more than seven days after the notice of judgment was mailed on April 7, 2010. Because the motion for new trial was untimely under La.Code Civ.P. art. 1974, it did not suspend the appeal delays. The 60-day appeal period expired on June 15, 2010, but Plaintiff filed the motion for appeal on August 13, 2010, well past the deadline.
Remedies
The court dismissed the appeal as untimely. The Plaintiff-Appellant filed the appeal more than 60 days after the expiration of the delay for applying for a new trial, which commenced to run on the day after the expiration of the delay for filing a motion for new trial. The court found the motion for new trial was untimely and therefore did not suspend the appeal delays.
Legal Principles
Louisiana Code of Civil Procedure Article 1974 provides that the delay for applying for a new trial is seven days, exclusive of legal holidays, commencing on the day after the clerk mails or sheriff serves the notice of judgment. Article 2087(A)(1) allows a devolutive appeal within sixty days after the expiration of the delay for applying for a new trial when no timely motion for new trial has been filed. The appeal delay is triggered by mailing of notice, not receipt.
Cited Statute
- La. Code Civ. Proc. Art. 1913
- La. Code Civ. Proc. Art. 1974
- La. Code Civ. Proc. Art. 2087
Judge Name
- Judge David Painter
- Judge John Saunders
- Judge David Chatelain
Passage Text
- With no timely motion for new trial having been filed, La.Code Civ.P. art. 2087 provides that the 60-day delay for filing a devolutive appeal commences to run on the day after the expiration of the delay for filing a motion for new trial. Thus, the delay for filing a motion and order for a devolutive appeal expired on June 15, 2010, i.e., 60 days after the April 16, 2010 expiration of the delay for filing a motion for new trial.
- Because Plaintiff's May 24, 2010 motion for new trial was filed more than seven days, exclusive of holidays, after the April 7, 2010 mailing of notice of judgment, we find that Plaintiff's motion for new trial was untimely under Article 1974.
- However, the record reflects that the motion and order for appeal were not filed into the trial court's record until August 13, 2010. Therefore, we hereby dismiss this appeal, at Plaintiff's cost, as untimely.