Mayo Whitton, Dea Whitton v. The Louisiana Housing Finance Agency, ASD Consultant, Inc.

STATE OF LOUISIANA

FIRST CIRCUIT

2025 CA 0057

MAYO WHITTON, DEA WHITTON, CHRIS WHITTON, CODY
WHITTON, SHIRAS WHITTON, INDIVIDUALLY, AND ON
BEHALF OF HIS MINOR CHILD RYLANCE C. WHITTON

VERSUS

THE LOUISIANA HOUSING FINANCE AGENCY, ASD
CONSULTANT, INC., LOUISIANA SYSTEMS BUILT HOME,,LLC

Judgment Rendered: SEE",

On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 591359 - Sec. 22

Honorable Beau M. Higginbotham, Judge Presiding

J. Arthur Smith, III Counsel for Appellants -Plaintiffs,
Seth M. Dornier Mayo Whitton, Dea Whitton, Chris
J. Arthur Smith, IV Whitton, Cody Whitton, Shiras
Baton Rouge, Louisiana Whitton, and Rylance C. Whitton

J. Wendell Clark Counsel for Appellee -Defendant,
David L. Guerry Louisiana Housing Corporation,
Sharon S. Whitlow formerly Louisiana Housing Finance
Mark L. Barbre Agency
Baton Rouge, Louisiana

Arthur W. Landry Counsel for Appellee -Defendant,
Jeanne A. Landry ASD Consultants, Inc.
New Orleans, Louisiana

Keely Y. Scott Counsel for Appellee -Defendant,
Christopher J. Bourgeois Bastoe Plumbing, LLC
Kaitlyn J. Dyer
Autumn M. Coe
Baton Rouge, Louisiana

BEFORE: LANIER, WOLFE, AND RESTER, JJ.

HESTER, J.

The plaintiffs appeal the trial court' s grant of the defendant' s motion for

partial summary judgment. For the following reasons, we dismiss the appeal as

untimely.

FACTS AND PROCEDURAL HISTORY

On June 7, 2010, the plaintiffs, Mayo Whitton', Dea Whitton, Chris Whitton,

Cody Whitton, and Shiras Whitton, individually and on behalf of his minor child,

Rylance C. Whitton ( collectively " the Whittons") filed a Petition for Damages,

naming defendants including the Louisiana Housing Finance Agency ( now

Louisiana Housing Corporation) (" LHC") and ASD Consultants, Inc. (" ASD"). In

their petition, the Whittons sought damages arising from their allegedly defective

modular home constructed by ASD and obtained via a grant through the Louisiana

Restore Share Grant Program administered by LHC. The Whittons contended that

there were several defects in the modular home including defects that caused water

intrusion that resulted in toxic mold. The Whittons alleged that the " defendants'

repeated negligence in failing to repair the home, mitigate the water damage, and

remediate the mold" resulted in the family suffering " coughing, sinus congestion,

chest pain, compromised immune system, neurological damage and fungal growth

in open sores."

On May 27, 2016, ASD filed a Motion for Summary Judgment, Alternatively,

Motion for Partial Summary Judgment contending that the Whittons' claims were

controlled by the New Home Warranty Act, La. R.S. 9: 3141 (" NHWA"). ASD

contended that the NHWA prevented the Whittons from recovering any damages

they sought in their petition except to the extent that they can prove a " major
structural defect" due to alleged defective workmanship. Specifically, ASD

Mayo Whitton died on October 23, 2019, and in an order signed on May 17, 2022, Dea Whitton
was substituted as plaintiff in the place of Mayo Whitton.

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contended that the Whittons were not able to recover " damages for bodily injury or

damage to personal property," " consequential damages," or " mold and mold

damage."

ASD' s motion came before the court for a hearing on November 21, 2016.

On May 5, 2017, the trial court signed a judgment ordering in pertinent part:

IT IS ORDERED that the Motion for Partial Summary Judgment
of ASD Consultants, Inc. is hereby GRANTED. All claims asserted by
all plaintiffs herein against ASD Consultants, Inc. for any damages
other than those allowed under the New Home Warranty Act ... and
specifically, all claims asserted by plaintiffs herein against ASD
Consultants, Inc., for any damages other than those representing " major
structural defects" in the subject premises ... are hereby DISMISSED
with prejudice.

IT IS FURTHER ORDERED that this Judgment is hereby
designated as a final judgment by the Court, having made the express
determination that there is no just reason for delay.

Notice of this judgment was mailed on May 9, 2017.

On September 19, 2017, the Whittons filed a Motion to Modify the May 5,

2017 judgment, asserting that they did not receive notice of the judgment until

August 1, 2017, and asking the trial court to " clarify and confirm the prospective

appealability of this judgment and to preserve the plaintiffs' right to appeal this

judgment." ASD opposed the motion, contending that the new trial and appeal

delays had run and that the Whittons were attempting to extend the appeal delays.

The trial court denied the motion on December 22, 2017. The Whittons applied for

supervisory writs with this court as well as with the supreme court. On November

14, 2018, the supreme court denied the Whittons' writ application.

On October 25, 2022, ASD filed another Motion for Summary Judgment,

seeking to dismiss all of the Whittons' claims against it with prejudice. On March

15, 2023, the trial court signed a judgment, granting ASD' s Motion for Summary

Judgment and dismissing the Whittons' claims against ASD in their entirety. On

November 15, 2022, LHC filed a Motion for Summary Judgment, seeking dismissal

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of all the Whittons' claims against it. On February 27, 2023, the trial court signed a

judgment, granting LHC' s Motion for Summary Judgment and dismissing the

Whittons' claims against LHC.

On March 21, 2023, the Whittons filed a Petition for Devolutive Appeal,

seeking to appeal: the judgment signed on May 5, 2017, as to ASD; the judgment

signed on February 27, 2023, as to LHC; and the judgment signed on March 15,

2023, as to ASD. On March 29, 2023, the trial court signed an order granting a

devolutive appeal from the foregoing three judgments. This appeal is of the

judgment signed on May 5, 2017.

On January 15, 2025, ASD filed with this court an Answer and Objection to

the Petition for Devolutive Appeal citing no objection to the appeal of the judgments

signed in 2023, but contending that the Whittons' appeal from the May 5, 2017

judgment granting partial summary judgment in favor of ASD was untimely.

Additionally, this court issued a Rule to Show Cause Order ordering the parties to

show cause whether this appeal should or should not be dismissed as untimely. This

court' s rule to show cause was referred to the panel to which this appeal was

assigned. Mayo Whitton, et al. v. The Louisiana Housing Finance Agency, ASD

Consultant, Inc., Louisiana Systems Built Home, LLC, 2025 CA 0057 ( La. App.

1st Cir. 5/ 19/ 25)( unpublished).

LAW AND ANALYSIS

Louisiana Code of Civil Procedure article 2087( A)( 1) provides that an appeal

which does not suspend the effect or the execution of an appealable order or

judgment may be taken within sixty days of the expiration of the delay for applying

for a new trial or judgment notwithstanding the verdict, as provided by La. Code

Civ. P. arts. 1974 and 1811, if no application has been filed timely. Louisiana Code

of Civil Procedure article 1974 states that "[ a] party may file a motion for a new trial

not later than seven days, exclusive of legal holidays, after the clerk has mailed or

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delivered in open court, or the sheriff has served, the notice ofjudgment as required

by Article 1913."

Appellate courts do not acquire jurisdiction of an appeal that is not timely

perfected. See Bridges v. Baton Rouge General Medical Center, 2020- 0270 ( La.

App. 1st Cir. 12/ 30/ 20), 317 So. 3d 662, 684, writ denied, 2021- 00144 ( La. 4/ 7/ 21),

313 So. 3d 985. The appeal delays found in La. Code Civ. P. art. 2087 are not

prescriptive periods that are subject to interruption; these time limits are

jurisdictional. 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 lapsed. Phillips v. Exxon Chemical

Louisiana, LLC, 2022- 1290 ( La. App. 1st Cir. 6/ 23/ 23), 370 So. 3d 738, 741, writ

denied, 2023- 01122 ( La. 11/ 21/ 23), 373 So. 3d 451.

Herein, notice of the May 5, 2017 judgment designated as final was mailed

on May 9, 2017. As such, the delay for filing a motion for new trial expired on May

16, 2017, and the Whittons did not file a timely motion for new trial. Thus, the delay

for filing a devolutive appeal expired on Monday, July 17, 2017. The Whittons'

petition for appeal of the May 5, 2017 judgment was not filed until nearly six years

later, on March 21, 2023. As the Whitton' s appeal was not timely filed, this court is

without jurisdiction to hear this appeal and must dismiss it as untimely.

CONCLUSION

For the foregoing reasons, the rule to show cause is granted, and the appeal of

the May 5, 2017 judgment is dismissed. All costs of this appeal are assessed to the

plaintiffs/ appellees, Dea Whitton, Chris Whitton, Cody Whitton, and Shiras

Whitton, individually and on behalf of his minor child, Rylance C. Whitton.

APPEAL DISMISSED.

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