Joseph J. Bazile, Jr. and Barbara B. Mire Versus Charles E. Zetzmann and Anne Zetzmann

JOSEPH J. BAZILE, JR. AND BARBARA B. NO. 22-CA-273
MIRE
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
CHARLES E. ZETZMANN AND ANNE
ZETZMANN STATE OF LOUISIANA

ON APPEAL FROM THE FIRST PARISH COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 155-981, DIVISION "B"
HONORABLE JOHN J. LEE, JR., JUDGE PRESIDING

November 16, 2022

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Robert A. Chaisson,
Stephen J. Windhorst, and Hans J. Liljeberg

APPEAL DISMISSED
SJW
RAC
HJL

COUNSEL FOR PLAINTIFF/APPELLEE,
JOSEPH J. BAZILE, JR. AND BARBARA B. MIRE
Robert W. Drouant

COUNSEL FOR DEFENDANT/APPELLANT,
CHARLES E. ZETZMANN AND ANNE ZETZMANN
David J. Halpern
Jill A. Gautreaux

WINDHORST, J.

Appellants/defendants, Charles E. Zetzmann and Ann Zetzmann, appeal the

trial court’s February 18, 2022 judgment.1 For the following reasons, we find this

court lacks jurisdiction to consider the merits of the appeal and dismiss appellants’

appeal as untimely.

PROCEDURAL HISTORY

Appellees/plaintiffs, Joseph J. Bazile, Jr. and Barbara B. Mire, filed a Petition

for Damages and to Enforce Lease in the First Parish Court for the Parish of

Jefferson. In response, appellants/defendants filed an answer and reconventional

demand seeking return of their security deposit.

Trial on the merits of plaintiffs’ petition occurred on September 22, 2020. The

trial court took the matter under advisement and issued a judgment on October 15,

2020. The judgment awarded plaintiffs $11,000.00 for property damage and

unauthorized removal of materials, attorney’s fees in the amount of $1,100.00, legal

interest from the date of judicial demand, and all costs of the proceedings.

Defendants appealed. This court dismissed defendants’ appeal on the grounds that

the October 15, 2020 judgment only disposed of plaintiffs’ claims in their petition

and did not address the reconventional demand filed by defendants.

On January 18, 2022, after a hearing on defendants’ reconventional demand,

the trial court took the matter under advisement and allowed the parties to submit

post-trial briefs. On February 18, 2022, the trial court rendered judgment denying

defendants’ reconventional demand. On February 23, 2022, defendants filed a

request for reasons for judgment. On February 25, 2022, the Clerk of Court issued

notice of judgment to the parties and filed into the record a certification that the

judgment had been mailed on February 25, 2022. On April 22, 2022, defendants

filed this motion for appeal.

1 Defendants also seek review of the trial court’s October 15, 2020 judgment.

22-CA-273 1

LAW and ANALYSIS

On July 28, 2022, this court issued an order, sua sponte, directing defendants

to show cause why this appeal, filed over two months after the judgment, should not

be dismissed on the basis that it was untimely. In their response to this court, 2

defendants contend that the delay in filing is due to this court’s failure to timely issue

a rule to show cause within the requisite time period set forth in La. C.C.P. art. 2161,

and/or is “imputable to the First Parish Court Judge’s delay in issuing reasons for

judgment” as to the February 18, 2022 judgment. Defendants acknowledged that

the February 18, 2022 judgment was issued on February 25, 2022 and that counsel

“saw the minutes of the Judge’s ruling prior to the issuance” of the notice of the

February 18, 2022 judgment. Notably, defendants did not claim that notice of the

February 18, 2022 judgment was not received. Instead, defendants argue that the

written reasons for judgment was issued April 5, 2022, received by defendants on

April 8, 2022, and the trial court stated defendants would have an extension of time

to file an appeal from the written reasons for judgment. Thus, defendants contend

that the motion for appeal was timely filed on April 22, 2022, following receipt of

the reasons for judgment.

When an appellant fails to timely take and perfect an appeal, the appellate

court lacks jurisdiction to consider the appeal. Louisiana jurisprudence is clear that

timeliness of an appeal is jurisdictional, and neither the trial court nor the appellate

court has the authority to extend this delay. Dew v. Blankenship, 14-649 (La. App.

5 Cir. 09/30/14), 150 So.3d 934, 935; Brown v. Schreiner, 05-255 (La. App. 4 Cir.

04/05/06), 929 So.2d 773, 775; Seaman v. Seaman, 10-1295 (La. App. 3 Cir.

12/15/10), 54 So.3d 756, 760; State ex rel. E.A., 02-996 (La. App. 3 Cir. 10/02/02),

827 So.2d 594, 596. Further, the provision in La. C.C.P. art. 2161 that an appeal

2 Defendants brief was not timely filed per this court’s order.

22-CA-273 2

should not be dismissed because of any irregularity, error, or defect unless it is

imputable to the appellant does not include the failure to bring an appeal within the

requisite period. Martin v. Freiberger, 02-188 (La. App. 5 Cir. 06/26/02), 822 So.2d

810, 811. Under such circumstances, the appellate court may, on its own motion,

recognize its lack of jurisdiction and dismiss the appeal as untimely. Hamilton v.

Lefevre, 06-729 (La. App. 5 Cir. 01/30/07), 951 So.2d 1223, 1224; State Farm Mut.

Auto. Ins. Co. ex rel. Robinson v. Jimenez, 98-1057 (La. App. 5 Cir. 01/26/99), 726

So.2d 465, 466.

A judgment and reasons for judgment are two separate and distinct legal

documents and appeals are taken from the judgment, not the reasons for judgment.

Alexander v. Maki, 15-517 (La. App. 5 Cir. 01/04/16), 183 So.3d 821, 822; Jimenez,

726 So.2d at 466. The appealable judgment in this case is the February 18, 2022

judgment, not the written reasons for judgment rendered on April 5, 2022.

La. C.C.P. art. 5002 A provides:
A. An appeal from a judgment rendered by a city court or a
parish court may be taken only within ten days from the date
of the judgment or from the service of notice of judgment,
when such notice is necessary. [Emphasis added.]

When service of notice of judgment is necessary, the Louisiana Supreme Court has

held that this time period to file an appeal under La. C.C.P. art. 5002 commences

upon receipt of notice of judgment rather than upon mailing of said notice. Myles

v. Turner, 612 So.2d 32, 35 (La. 1993). Notice of any final judgment rendered in

parish court is required and such notice shall be mailed by the clerk of court to

counsel of record for each party in accordance with La. C.C.P. art. 1913. La. C.C.P.

art. 4905. Notice of final judgment was required in this case.

Here, the trial court heard the reconventional demand on January 18, 2022,

and after post-trial memoranda and 31 days, the trial court rendered its decision and

signed the judgment on February 18, 2022. Three business days later, appellants

filed a request for written reasons for the judgment.

22-CA-273 3

The record shows that the Clerk of Court mailed notice of judgment as

required on February 25, 2022. Despite our request, defendants have not shown or

alleged that the motion for appeal was filed within 10 days of their receipt of the

notice of judgment. Smith v. Winn-Dixie Louisiana, Inc., 626 So.2d 750 (La. App.

5 Cir. 1993).

It is therefore reasonable for this court to assume that defendants received

notice of the February 18, 2022 judgment more than 10 days prior to the filing of the

motion for appeal. Id. Considering the facts of this case, we find defendants’ appeal

filed on April 22, 2022 is untimely.

DECREE

Accordingly, this court lacks jurisdiction to consider the merits of defendants’

appeal and therefore, we dismiss this appeal as untimely.

APPEAL DISMISSED

22-CA-273 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 16, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-CA-273
E-NOTIFIED
FIRST PARISH COURT (CLERK)
HONORABLE JOHN J. LEE, JR. (DISTRICT JUDGE)
JILL A. GAUTREAUX (APPELLANT)

MAILED
DAVID J. HALPERN (APPELLANT) ROBERT W. DROUANT (APPELLEE)
ATTORNEY AT LAW ATTORNEY AT LAW
909 POYDRAS STREET POST OFFICE BOX 24994
SUITE 3600 NEW ORLEANS, LA 70184
NEW ORLEANS, LA 70112