IN RE; INTERMENT OF CLEO SATTER LOCICERO
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*** NOT DESIGNATED FOR PUBLICATION *** IN RE: INTERMENT OF CLEO SATTER LOCICERO * NO. 2012-CA-0806 * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA ******* APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2004-01470, DIVISION “N-8” Honorable Ethel Simms Julien, Judge ****** PAUL A. BONIN JUDGE ****** (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Paul A. Bonin) Craig Henry Stewart STEWART LAW FIRM 627 School Street Houma, LA 70821 COUNSEL FOR PLAINTIFF/APPELLANT Thomas G. Buck BLUE WILLIAMS, L.L.C. Brett W. Tweedel BLUE WILLIAMS, L.L.P. 3421 North Causeway Boulevard Suite 900 Metairie, LA 70002 Chauntis Trenelle Jenkins PORTEOUS HAINKEL & JOHNSON, L.L.P. 704 Carondelet Street New Orleans, LA 70130--3774 Marianne S. Pensa FREDERICK A. MILLER & ASSOCIATES 3850 North Causeway Boulevard 1700 Lakeway II Metairie, LA 70002-8178 David H. Cliburn 2008-B Burnside Avenue Gonzales, LA 70737 Steven M. Lozes LOZES & LOZES 410 S. Rampart Street Second Floor New Orleans, LA 70112 COUNSEL FOR DEFENDANTS/APPELLEES APPEAL DISMISSED WITHOUT PREJUDICE JUNE 12, 2013 Ramona Hedrick sued her three sisters1 for defamation. The trial judge granted the sisters’ motion for a directed verdict, see La. C.C.P. art. 1810, and rendered judgment dismissing with prejudice Ms. Hedrick’s lawsuit. Ms. Hedrick timely filed a devolutive appeal and claimed to have designated the record.2 The record before us contains neither a transcript of the trial testimony nor an agreedupon narrative of the facts. As we explain in greater detail below, because we find that Ms. Hedrick did not timely designate portions of the trial court record, in order for her to obtain appellate review, it is necessary that we dismiss her appeal without prejudice. “[W]ithin three days, exclusive of holidays, after taking the appeal the appellant may designate in a writing filed with the trial court such portions of the record which he desires to constitute the record on appeal.” La. C.C.P. art. 2128. “The appellant has the duty to secure either a transcript of the testimony or a 1 The defendant-sisters are Donna Webre, Ava Marks and Pam Melancon. The other defendants are the liability insurers, Allstate Insurance Company and State Farm Fire and Casualty Company. 2 The appellate record does not contain the designation of record, but Ms. Hedrick in her brief references the portions of the record which she designated. 1 narrative of facts; and the inadequacy of the record, if any is imputable to the appellant.” Olson v. Olson, 04-1137, pp. 4-5 (La. App. 5 Cir. 3/1/05), 900 So. 2d 52, 54-55. “An appellate court is forbidden by the law and jurisprudence to consider evidence which is outside the record on appeal.” Id., 04-0037, p. 5, 900 So. 2d at 55. We gave Ms. Hedrick the opportunity to supplement the record with copies of any motions and orders to designate the record; however, she was unable to produce any such motion or order. Ms. Hedrick, therefore, has not shown that the record was timely designated in accordance with La. C.C.P. art. 2128. From the record before us, Ms. Hedrick has not established that she is entitled to relief. Ms. Hedrick has not provided us with evidence that she timely objected to the district court’s now challenged rulings; and Ms. Hedrick has not made, as far as we are concerned for they do not appear in the record, proffers of what her excluded witnesses would have said had they been allowed to testify. Without offers of proof of the testimonies these witnesses would have given, we have no basis for determining whether the district court erred in excluding them. And without a transcript of the proceedings below, we cannot know whether the issue was properly preserved for review. In light of the fact that there was no timely record designation, we find that the proper remedy is to dismiss this appeal without prejudice and afford the appellant, Ramona Hedrick, an additional twenty days from the finality of this judgment within which to pay the full estimated costs of the appeal so that the 2 clerk of the district court may prepare a complete record, including all pleadings and trial transcripts, of the proceedings below. See Bonner v. Goldberg, 11-0768, pp. 5-6 (La. App. 4 Cir. 11/2/11), 76 So. 3d 1284, 1287; Armstrong ex rel. R.D. v. Johnson, 11-1379, p. 9 (La. App. 4 Cir. 7/5/12), 97 So. 3d 548, 553. If Ms. Hedrick fails to timely pay the full estimated costs within the time specified, the trial court shall proceed under La. C.C.P. art. 2126 E. DECREE The instant appeal of Ramona Hedrick is hereby dismissed without prejudice. APPEAL DISMISSED WITHOUT PREJUDICE 3
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