Automated Summary
Key Facts
This appeal involves a fatal vehicle accident between Destiny Gordon and Michael Dyson that occurred on May 12, 2017. Destiny's parents, Arnold and Angelia Gordon, filed suit in 2018 against Vanessa Williams as succession representative of Michael Dyson's estate. The petition was amended on March 22, 2021 to name Michael Dyson as succession representative. The trial court sustained exceptions of insufficiency of service and prescription on December 28, 2021, but notice was not sent until October 30, 2024. The sixty-day appeal deadline expired on January 13, 2025, but the Gordons filed their motion for appeal on January 17, 2025, rendering the appeal untimely. The appellate court dismissed the appeal for lack of jurisdiction.
Deceased Name
Michael Dyson
Issues
- Whether the appellate court has subject matter jurisdiction over the appeal. The court determined that appellate courts do not acquire jurisdiction of an appeal that is not timely perfected, and the appellant's failure to file a devolutive appeal timely is a jurisdictional defect.
- Whether the appeal filed by Arnold and Angelia Gordon was timely under Louisiana Code of Civil Procedure articles 1974, 2087, and 2123. The appeal was dismissed because the motion for appeal was filed on January 17, 2025, after the sixty-day deadline expired on January 13, 2025, following the expiration of the seven-day period for applying for a new trial that ended on November 13, 2024.
Date of Death
2017 May 12
Holdings
The Court of Appeal dismissed the appeal as untimely because the motion for appeal was filed after the statutory deadline expired. The court found that the sixty-day time for filing a motion for devolutive appeal began on November 14, 2024 and expired on January 13, 2025, but the Gordons did not file until January 17, 2025. The motion to dismiss and exception of lack of subject matter jurisdiction were denied as moot.
Remedies
- All costs of this appeal were assessed against the plaintiffs, Arnold and Angelia Gordon.
- The Court of Appeal dismissed the appeal as untimely, finding the motion for appeal was filed after the statutory deadline expired. The motion to dismiss and exception of lack of subject matter jurisdiction were denied as moot.
Legal Principles
Louisiana Code of Civil Procedure articles 1974, 2087, and 2123 govern statutory delays for appeals. Article 1918 requires final judgments to contain appropriate decretal language, but the court did not remand for amendment because the appeal was untimely. Untimely filing of a devolutive appeal is a jurisdictional defect—neither the court of appeal nor any other court has authority to reverse, revise, or modify a final judgment after the time for filing has elapsed. The six-month period for filing an appeal begins after the seven-day new trial period expires, and appellate courts cannot acquire jurisdiction over untimely appeals.
Precedent Name
- State in Interest of Kirkland v. Kirkland
- Nelson v. Teachers' Retirement System of Louisiana
- Louka v. Board of Supervisors for University of Louisiana System
Cited Statute
- Code of Civil Procedure article 1974
- Louisiana Revised Statutes 13:850
- Code of Civil Procedure article 1918
- Code of Civil Procedure article 2123
- Code of Civil Procedure article 2087
Judge Name
- Judge Penzato
- Judge Balfour
- Judge Theriot
Passage Text
- Here, the Gordons did not file a motion for new trial challenging the December 28, 2021 judgment, for which notice was issued on October 30, 2024; therefore, the sixty-day time for filing a motion for devolutive appeal began on November 14, 2024 and expired on January 13, 2025. The record reflects the Gordons did not fax file the motion for appeal until January 17, 2025, after the delay for filing an appeal expired.
- After reviewing the record, we conclude the appeal is untimely and must be dismissed.
- Appellate courts do not acquire jurisdiction of an appeal that is not timely perfected. An appellant's failure to file a devolutive appeal timely is a jurisdictional defect, in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse, revise, or modify a final judgment after the time for filing a devolutive appeal has elapsed.