River City Federal Bank VS Glenn E. Johnston
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 0449 RIVER CITY FEDERAL SAVINGS BANK VERSUS GLENN E JOHNSTON Judgment Rendered November Appealed 2 2007 from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 340 834 Honorable Mark C Landry Kay Bates Judge Attorney for Plaintiff Appellant The Cadle Metairie LA Company Herschel C Adcock Sr Attorney for Baton Rouge LA Defendant Appellee Glenn E Johnston BEFORE II 0Qt 1 CARTER C J PETTIGREW AND WELCH JJ WELCH J In this appeal plaintiff The Cadle Company Cadle its lawsuit ruling dismissing E Johnston seeking to revive appeal challenges a trial court untimely We dismiss the as a judgment against defendant Glenn BACKGROUND On March 6 19th 1989 River Federal City Savings Bank filed Judicial District Court for the Parish of East Baton Johnston then promissory entered notes executed in against promissory On resident of Baton a Mr May 17 June 12 1999 Cadle filed this 1989 of the judgment a on Mr Johnston by 1989 to A default for the Mr enforce three judgment unpaid balance was of the notes revive the June 12 owner Johnston Rouge against Rouge Louisiana seeking its favor lawsuit in the a On October 5 In the judgment by virtue petition against of the Mr Johnston seeking to petition Cadle averred that it is the following transfers 1989 the Office of Thrift the Resolution Trust Supervision appointed City Federal City Federal the receiver including but not receiver for River result all of the assets of River Corporation as Savings Bank As a Savings Bank were transferred unto limited to the judgment sued upon herein b Resolution Trust Savings Bank did Corporation as transfer the said receiver of River judgment City Federal to Premier Financial Services Texas L P c Premier Financial Services Texas L P did transfer the said judgment to The Cadle Company all as evidenced by an Assignment of Judgment dated March 12 1999 but effective October 5 1998 a copy of which is attached hereto and made At the time the lawsuit May 24 1999 a The certified mail On 2003 Mr April to revive copy of the was 9 2001 on Cadle filed Johnston filed an was May 28 a part hereof filed Mr Johnston was petition delivered a sent to Mr was living Johnston by in Texas certified mail 1999 motion for summary judgment On affidavit in 2 On opposition to April 24 the motion for summary and judgment prescription also and no filed effectuate valid a At the 15 May a lawsuit revive the judgment valid at C C In oral assignment in addition as other to required by law reasons judgment for the filed was However the for ruling the assignment and thus Cadle court 10 year to prescriptive period be effective Cadle did was at the to have not the time the of the not receive required by La as against him The court concluded right of action against a no specifically owner found Mr Johnston did court of granted the exceptions court assignment of the underlying judgment did exist the lack of notice to the trial hearing assignment within the art 2643 that due 2006 the time notice of this Johnston asserted receive notice of the prescription found that to not Mr of assigmnent of action and right of action right theories that he did peremptory exception raIsmg the objections a Mr Johnston and therefore the lawsuit to revive the judgment had prescribed On June 29 2006 the trial court of no to amend the right makes no of action The written petition contains on July 14 no decretal assignments with the revive the Cadle asked the court to a motion for a new On October 26 judgment granting the on an opportunity the lawsuit and the a motion for leave judgment asserting May 28 1999 when he to file a that Mr was served judgment that specifically pled the allow it details of the transmittal of that notice filed afford Cadle language dismissing to revive Johnston received notice of the assignments not Cadle filed 2006 to judgment sustaining the exception exception supplemental and amending petition original petition a judgment does mention of the prescription Thereafter signed to amend the petition to Mr Johnston court rendered to set forth the In the alternative Cadle trial 2006 the trial exception of no right 2006 denied the motion for leave to file 3 a judgment confirming of action rendered supplemental and by it on May the 15 amending petition to the reVIve and judgment dismissed the lawsuit with denied the motion for a prejudice The judgment trial new The mailed was to judgment the parties on October 27 2006 On refusal 5 2007 January than 60 more to grant the application for appeal of the trial court motion days after the mailing of the trial trial Cadle filed motion for court s 8 2007 on January a new October 26 2006 s a judgment The trial devolutive a granted the court TIMELINESS OF THE APPEAL After the record and found Accordingly briefs appeal that the April on whether the timeliness of the lodged this was 24 to proprio have 2007 this court ordered the appeal should appeal ex appeared appeal court was or should referred not this to motu been parties panel filed to be dismissed examined the untimely show cause by The issue of the after the appeal had been assigned On this issue On June 29 right 2006 the trial court of action The petition and does judgment a new was Seven days later a judgment granting the filed the lawsuit with a new on trial trial was was January 5 actions judgment granting the exception of language on July on On opportunity July to no amend the 7 2006 notice of the a denied the motion for motion for a new trial right of action and prescription exceptions Notice of the October 27 2006 more the motion for an 14 2006 Cadle filed court prejudice mailed 2007 no following pertinent dates and give Cadle not not contain any decretal judgment denying new judgment does mailed dismissing motion for was signed trial On October 26 2006 the trial and entered and the record reflects the than 60 a new days judgment denying the Cadle s motion for appeal after the trial court entered trial and notice of the refusal to grant a mailed Louisiana Code of Civil Procedure 4 article 2087 A provides that a devolutive may be taken within 60 appeal days of the following l The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict as provided by Article 1974 and Article 1811 if 2 a The date of the of notice of the mailing timely application as provided under Article for a new trial verdict Mr Johnston urges that under the clear 60 has been filed application no or timely court refusal s to grant judgment notwithstanding the 1914 language of La C C P art 2087 Cadle had days from the date that notice of the judgment denying the motion for trial was delay mailed on he submits motion for October 27 2006 expired devolutive a on to file its motion for an The appeal appeal not file its December 27 2006 however Cadle did appeal until January 5 2007 about 10 a new days after the appeal delay had run Cadle contends however that its 60 days of the judgment granting for a new not was the trial from that judgment entitled to is 2006 file final a judgment motion for not trial actually file expired on 7 within 60 or 8 days did not to 2007 of the not a trial after the June 29 final 2006 judgment to run an file its motion for to a new 1974 trial the until the days seven delay Cadle s of the of the time for 5 mailing appeal delay under La for for applying a new calculations it had 60 appeal which expired either filing a of Cadle contends that Therefore Cadle maintains because its motion expiration of appeal lies and from which it art a new According trigger the running not Cadle argues that the October 26 C CP motion for begin did trial within to La November 7 2006 days from that date January 2 a 2 from which a new because it did 2087 A was filed within was a new posits that the right of action no 2087 A art judgment pursuant art It interlocutory judgment La C C P a motion for a it litigation and maintains that the filing of that motion notice of the C C P timely because judgment exception of dismiss the prescription under 2006 is expiration of the time for filing rendition of the October 26 because it did appeal motion for on was filed a new trial pursuant to La C C P We and does v A disagree not judgment allow time for City of Port Allen decretal art 2087 A this 1 that sustains June 29 2006 judgment So 2d appeal the Ball 5 4 07 26 2006 this court 961 June 29 trial from new See In a 2006 judgment question in this 2006 2087 A 1 time for filing a so as When a new a new App trial Palmer 1st Cir 1971 11 6 98 v a the trial a new a App 1st Cir new 9 14 07 2006 1379 not a attempt s potential motion for the trial after v denied a defect in a new a new court La trial C C P art expiration of the trial that judgment becomes to entertain a a second 689 Corp 257 Associates Inc s 151 97 2413 637 writ denied 99 0644 La 4 23 99 612 1972 La not motion for 255 So 2d 611 So 2d 525 party may has denied that party United Inv 6 the not It is well settled that 260 La a language in the appeal delay under to to The October judgment by including is without jurisdiction Cir 1988 La motion for its lawsuit it cured any June 29 2006 appeal of the HCA Health Services of Louisiana Inc Milton J Womack 744 So 2d 635 ending 1 motion for court v Palmer app over an Instead it filed it denied Cadle 2 The absence of Cadle did running of the 60 day delay App 5th La second motion for Central Bell the trial Correa So 2d 1206 1207 court trial We conclude it did court and a new However things judgment triggered to extend Cir 1992 is whether the inclusion of decretal trial court denies final in the trial a case and See Shahla judgment Manor of Mandeville this appellate jurisdiction over the s October 26 file two final 2007 0992 La 415 to a jurisdiction s that had the effect of judgment accomplished motion for C E F So 2d 414 judgment exception of no right of action judgment sustaining the exception of no court Heritage v appropriate decretal language The real re timely App 1st 601 So 2d 746 750 La right of action would have affected this App 1st Cir an the petition is amending from the June 29 2006 language is appeal App La South 1 st Cir 742 So 2d 889 In Palmer denied for on procured taking a an not denied motion for was This under La C C P denied on the not court June 1 trial until the date on on triggered art 2087 The trial from a new appealing began to denying the motion holiday motion to filed until second motion March 26 1971 The plaintiff day delay for C P art 2087 in effect at that which the second motion for a new trial an the of the 90 running reason for the rule this unsuccessful party to day delay for stated is court appealing simple interminably delay to the effect Palmer 257 So 2d at 612 triggered the appeal delay a a 1971 asserted that the 90 In accordance with the above authorities motion for but filed appeal court disagreed holding that that the first judgment denying the rule otherwise would allow ofajudgment by trial which the trial a new appeal under the version of La C court new motion for a The plaintiff did order of appeal commence a filed 22 1971 devolutive time did was January plaintiff trial which a new who a The run for next in La January 5 2007 trial was appeal December CC P art October 27 a new day find that the denial of Cadle s judgment granting the exception of no right of action a on we 27 was also a 2006 2087 A 2006 the mailed and 2 The 60 day notice expired holiday making on appeal is untimely and is hereby dismissed plaintiff River City Federal Savings Banle APPEAL DISMISSED 7 60 of the judgment December 25 2006 the final Plaintiff s motion for clearly outside the day delay for day for filing an appeal was a not day appeal delay Therefore this All costs of this appeal are assessed to RIVER CITY FEDERAL NUMBER 2007 CA 0449 SAVINGS BANK FIRST CIRCUIT VERSUS COURT OF APPEAL GLENN E JOHNSTON CJ The Cadle judgment not have taken not an DISSENTS FROM the June 29 2006 DISMISSAL judgment it contains decretal celiain or petition OF THE 26 2006 final judgment The Cadle Company could June 29 2006 appeal from the s THE Company Cadle is appealing the October precise definite dismiss Cadle STATE OF LOUISIANA no See LSA C C P Pilgrim Baptist Church 05 0337 La art App 1918 that as judgment Johnson is it did not language 1 Cir 3 24 06 not Mount v 934 So 2d 66 67 On and July 14 2006 Cadle filed amending petition alternative and 0 as provided to the June 29 2006 for in LSA C C P for a new judgment Cadle is entitled 2006 final C C P mi judgment 1974 law that the law appeals are clearly requires 283 So 2d 212 217 mi favored a La 1973 right appeal 2087 A 1 to was 934 and in the might filed in response as a motion for a Thurman v for in the Louisiana appeal the October timely filed It is the Appeals should dismissal supplemental judgment its and its motion for LSA C C P was delays provided exercising a and to the extent it and should not be construed to the full time Code of Civil Procedure in art trial This motion trial from the October 26 2006 final new Inc motion for leave to file Jut of an abundance of caution be considered necessary our a See LSA longstanding not 26 tenet of be dismissed unless Star Electric Supply For the the foregoing reasons I respectfully dissent appeal 2 from the dismissal of
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