Calvin Everett VS Baton Rouge Student Housing, L.L.C., Century Campus Housing Management, L.P., d/b/a Campus Living Villages and Admiral Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0856 CALVIN EVERETT VERSUS BATON ROUGE STUDENT HOUSING L C CENTURY CAMPUS HOUSING MANAGEMENT L P D BA CAMPUS LIVING VILLAGES ADMIRAL INSURANCE COMPANY On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 563 Section 27 176 Honorable Todd W Hernandez Judge Presiding Edward Moses Jr Baton Rouge LA Attorney for Plaintiff Appellant Calvin Everett Michael P Mentz Brad D Ferrand Attorneys for Defendant Appellee Hailey McNamara Hall Baton Rouge Student Housing L C Larmann Papale L P Metairie LA Brent M Maggio Attorney for Allen Defendant Appellee Century Campus Housing Management L d b a Campus P Living Villages Gooch Metairie LA Melvin A Eiden Attorney for Defendant Appellee Admiral Insurance Company Lafayette LA BEFORE PARRO GUIDRY AND HUGHES JJ Judgment rendered May 6 2011 V cc r A A A PARRO J Calvin Everett appeals a judgment granting motions for summary judgment filed by the defendants Baton Rouge Student Housing L Century Campus Housing C Management L dba Campus Living Villages and Admiral Insurance Company and P dismissing his lawsuit For the following reasons we dismiss the appeal RULE TO SHOW CAUSE On August 31 2010 this court ex proprio motu issued an order for the parties to show cause by briefs on or before September 15 2010 whether the appeal should be dismissed as untimely All parties timely filed briefs concerning this issue The rule to show cause was referred to the panel to which the appeal was assigned Everett v Baton Rouge Student Housing L 100856 La App 1st Cir 12 unpublished C 10 3 writ action Accordingly we shall address this motion in order to determine whether the appeal should be dismissed The record shows the following information On April 24 2009 Judge Todd W Hernandez signed a judgment granting the motions for summary judgment filed by all defendants in this matter and dismissing Everett lawsuit with prejudice at his costs s A certificate at the bottom of the judgment signed by the deputy clerk of court states I hereby certify that on this day a notice of the above judgment was mailed by me with sufficient postage affixed to Michael Mentz Melvin Eiden Brent Maggio Edward Moses Jeff Valliere Done and signed on April 30 2009 Louisiana Code of Civil Procedure article 1974 provides that t delay for applying for he a new trial shall be seven days exclusive of legal holidays The delay run on the day after the clerk has mailed Article 1913 commences to the notice of judgment as required by April 30 2009 fell on a Thursday Counting from the following day Friday May 1 2009 and excluding the weekends which are legal holidays the seventh day was May 11 2009 Everett filed his motion for new trial on May 18 2009 This motion was untimely According to LSAC art 2087 a devolutive appeal must be filed within P C 1 A 1 Edward Moses was Everett attorney of record s 2 Despite the untimely application the court heard the motion for new trial on August 24 2009 and denied the motion A judgment denying the motion for new trial was signed November 12 2009 2 sixty days of the expiration of the delay for applying for a new trial if no application has been filed timely Since Everett motion for a new trial was untimely the time for filing s a devolutive appeal in this case expired July 10 2009 which was the last day within sixty days after May 11 2009 However Everett did not file a devolutive appeal he filed an application for supervisory writs on September 15 2009 This court denied the writ with an order stating WRIT DENIED WITH ORDER The April 29 2009 judgment granting defendants motions for summary judgment and dismissing plaintiffs suit with prejudice is a final appealable judgment Therefore it is hereby ordered that this case be remanded to the district court with instructions to grant relator an appeal pursuant to his September 15 2009 pleading notifying the court of relator intention to seek review of the denial of his s motion for new trial See In re Howard 541 So 195 La 1989 2d However we note that there is no order for appeal Therefore in the event relator seeks to appeal the judgment he shall submit an order for appeal to the district court within fourteen days of this Court order s A copy of this Court action is to be included in the appellate record s Everett v Baton Rouge Student HousingL 10 0095 La App 1st Cir 3 C L 10 15 unpublished writ action Everett then filed a motion and order for appeal in the district court on March 31 2010 and the order permitting his appeal was signed on April 6 2010 When an application for writs is sought further proceedings may be stayed at the trial court discretion Any request for a stay of proceedings should be presented s first to the trial court The filing of or the granting of a writ application does not stay further proceedings unless the trial court or appellate court expressly orders otherwise Rule 44 Uniform Rules of Louisiana Courts of Appeal The record in this case does A not show that a request for a stay in connection with the writ application was presented to the trial court or this court or that a stay was granted by either court Therefore the delay for filing for a devolutive appeal was not suspended interrupted or stayed by the filing of Everett application for supervisory writs Accordingly neither the filing of s his application for supervisory writs on September 15 2009 or the filing of a motion and order for appeal on March 31 2010 was timely An appeal is taken by obtaining an order therefor within the delay allowed 3 We note that when this court denied Everett application for supervisory writs on March 15 2010 and s remanded with instructions to grant Everett an appeal pursuant to his September 15 2009 pleading there was no determination made as to whether the motion for new trial had been timely filed Since there had been no such determination on December 3 2010 this court referred to this panel the rule to show cause why the appeal should not be dismissed 3 from the court which rendered the judgment LSAC art 2121 The appeal delays P C found in LSAC P C art 2087 are not prescriptive periods that are subject to interruption these time limits are jurisdictional An appellant failure to file a s 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 See Jim Enterprises Inc v Alcoholic Beverage Control Bd for the Ci Lu of Baton Rouge and East Baton Rouge Parish 992907 La App 1st Cir 12 778 So 75 78 citin 00 22 2d Baton Rouge Bank Trust Co v Coleman 582 So 191 192 La 1991 2d An application for new trial does not interrupt the delay for applying for a new trial or the delays for appealing unless the application is timely Carona v Webster 270 So 2d 609 611 La App 1st Cir 1972 see also Main Electronics Inc v Toddler Academy Inc 041348 La App 5th Cir 3 900 So 103 105 06 writ denied 050829 05 1 2d La 5 902 So 1025 05 13 2d A court lack of jurisdiction can be noticed by the court on its own motion at any s time LSAC art 2162 see Strickland v Layrisson 96 1280 La App 1st Cir P C 97 20 6 696 So 621 624 writ denied 971940 La 11 704 So 228 In 2d 97 14 2d this case because of the lack of a timely motion for new trial the delays for filing a motion and order of appeal were not interrupted and the appeal was not timely filed Therefore we find that this court has no jurisdiction over the appeal of the April 24 2009 judgment CONCLUSION For the above reasons the appeal of the April 24 2009 judgment is dismissed at Calvin Everett cost s APPEAL DISMISSED 4 However Paragraph E of Article 2087 provides a specific exception for situations in which a case is removed to a federal court This exception is clearly not applicable to this case 4
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