Fillmore Wright v. St. Landry Public Housing Corp.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-1241

FILLMORE WRIGHT, ET AL.

VERSUS

ST. LANDRY PUBLIC HOUSING CORP., ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 05-C-6203-A
HONORABLE JAMES PAUL DOHERTY, JR., DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Oswald A. Decuir, Glenn B. Gremillion, and Billy Howard Ezell,
Judges.

AFFIRMED.

Peter F. Caviness
Dauzat, Falgoust, Caviness & Bienvenu
P. O. Drawer 1450
Opelousas, LA 70571-1450
(337) 942-5811
Counsel for Defendant/Appellee:
St. Landry Public Housing Corporation

Brian K. Thompson
Attorney at Law
P. O. Box 13984
Alexandria, LA 71315
(318) 473-0052
Counsel for Plaintiffs/Appellants:
Fillmore Wright
Pearlie Wright

EZELL, JUDGE.

This appeal raises the issue of whether a facsimile filing pursuant to La.R.S.

13:850 is considered received by the clerk of court on a legal holiday or a regular

business day if the courthouse has been closed pursuant to a court order for the New

Year holiday. The trial court found that December 30, 2005, was a regular business

day, not a legal holiday and that the Plaintiffs failed to file the required documents

within five days after the fax transmission. The trial court dismissed the Plaintiffs’

case as prescribed. We affirm.

FACTS

Pearlie and Fillmore Wright filed a suit for damages for the wrongful death of

their son. In their petition they allege that their son was stabbed by Christopher

Edwards on December 30-31, 2004, while he was visiting at the LeBeau Housing

Project in St. Landry Parish.

On December 30, 2005, at approximately 4:05 p.m., the Wrights filed suit by

facsimile transmission. Subsequently, on January 10, 2006, a hard copy of the suit

was filed. Two pauper affidavits and an order requesting to proceed in forma

pauperis were attached. Pauper status was denied on January 11 for failing to

provide additional paperwork as required by Rule 6 of the Twenty-Seventh Judicial

District Court local rules.

On March 6, 2006, the St. Landry Public Housing Corporation filed an

exception of prescription alleging that the original petition was not filed until more

than five days after the facsimile filing in violation of La.R.S. 13:850. The trial court

granted the exception finding that the facsimile transmission was received by the

clerk’s office on December 30, 2005, and the original petition was filed more than

five days later.

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DISCUSSION

The Wrights claim that the clerk of court could not accept fax filings on

December 30, 2005, since the chief judge had ordered the closure of the courthouse

for the New Year holiday. The Wrights argue that due to the Chief Judge’s order,

December 30 became a legal holiday and the effective date of filing is actually

January 2, 2006. The Wrights further claim that pursuant to La.Code Civ.P. art. 288,

which provides for the functions which a district court clerk may exercise on a legal

holiday, the clerk of a district court could not accept a facsimile filing on that day.

They argue further that if December 30 is considered a legal holiday, then the

Wrights’ filing of the signed original and fees on January 10 would be timely. The

evidence shows that December 30, 2005 was a Friday. December 31, January 1, and

January 2 were legal holidays. January 3, 2006 was a Tuesday, and the following

weekend, January 7 and 8, were legal holidays. Therefore, January 10 is the fifth day

after January 3 for purposes of La.R.S. 13:850.

Legal holidays are provided for in La.R.S. 1:55. Section E specifically refers

to the closure of the clerk of courts’ offices as follows:

(1)(a)(i) Each clerk of a district court, parish court, and city court
shall close his office on the following days: New Year’s Day, January
first; Washington’s Birthday, the third Monday in February; Good
Friday; Memorial Day, the last Monday in May; the Fourth of July;
Labor Day, the first Monday in September; All Saints’ Day, November
first; Veterans’ Day, November eleventh; Thanksgiving Day, the fourth
Thursday in November, and the next day, Friday; Christmas Eve Day;
Christmas Day; and New Year’s Eve Day, December thirty-first.

(ii) Whenever New Year’s Day, the Fourth of July, or Christmas
Day falls on a Saturday, the preceding Friday shall be a holiday.
Whenever New Year’s Day, the Fourth of July, or Christmas Day falls
on a Sunday, the following Monday shall be a holiday.

(iii) In addition, in the city courts of Hammond and Sulphur,
Ward Four, Mardi Gras and the day on which the national observance
of Martin Luther King, Jr.’s birthday is celebrated shall be legal holidays
and the clerk of court shall close his office on those days. In addition,

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in the city court of Sulphur, the second Monday in October, Christopher
Columbus Day shall be a legal holiday and the clerk of city court shall
close his office on that day. Notwithstanding any other law to the
contrary, Mardi Gras shall be a legal holiday for the clerks of court for
the parishes of East and West Feliciana, East Baton Rouge, Iberville,
Pointe Coupee, West Baton Rouge, St. John the Baptist, St. Charles,
Lafourche, St. Mary, Assumption, Terrebonne, St. Martin, Ascension,
St. James, St. Tammany, St. Bernard, Jefferson Davis, Livingston,
Acadia, Vermilion, Calcasieu, Orleans, Allen, and Tangipahoa.

(b) In addition, each clerk of a district court, parish court, and city
court shall close his office on all of the legal holidays provided in R.S.
1:55(B)(1)(a) and on any day that the governor has proclaimed a legal
holiday pursuant to R.S. 1:55(B)(3). Notwithstanding the provisions of
Paragraph (2) of this Subsection, each clerk of a district court, parish
court, and city court shall close his office on any day an emergency
situation has been declared by the governor or the local governing
authority and governmental entities, including the courthouse, have been
ordered to close.

(c) In addition, each clerk of a city court or parish court, with the
approval of the chief judge of the court, may close his office on the day
proclaimed by the governor or the local governing authority as a holiday
in honor of Dr. Martin Luther King, Jr.’s birthday.

(d) In addition, each clerk of court in the parishes of St. James and
St. John the Baptist shall close his office on any day upon which the
governor has proclaimed a legal holiday. The provisions of this Section
shall not apply to Inauguration Day once every four years or General
Election Day every two years.

(e) In addition, the clerk of court of the Fifteenth Judicial District
Court and the clerk of court of the City Court of Abbeville, in the parish
of Vermilion, shall close their offices on the Friday before the first
weekend in October, in observance of the Cattle Festival in Abbeville,
unless there is an election on the first Saturday in October in Vermilion
Parish.

(2) If an emergency situation develops which, in the judgment of
the clerk of court, renders it hazardous or otherwise unsafe for
employees of the office of the clerk to continue in the performance of
their official duties or for the general public to conduct business with the
clerk’s office, the clerk, with prior approval from the clerk’s chief judge
or other person authorized to exercise his authority, may order the
closing of his office for the duration of the hazardous or unsafe
condition. No such closure shall be effective nor shall such period of
closing be considered a legal holiday unless prior written approval or
written confirmation from such chief judge or person acting on his
behalf is received by the clerk of court. When the office is reopened, the
clerk shall have published as soon as possible a legal notice in all of the

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official parish journals of the parishes within the district setting forth the
dates of closure, the hour of closure if applicable, the reasons for
closure, and a statement that, pursuant to R.S. 1:55(E)(3), these days or
parts of days were legal holidays. The clerk shall attach a similar
statement to every document, petition, or pleading filed in the office of
the clerk on the first day or part of a day his office is open after being
closed under the provisions of this Paragraph, whenever the petition or
document relates to a cause of action, right of appeal, or other matter
against which prescription could have run or time periods imposed by
law could have expired.

(3) Only the enumerated holidays in Paragraph (1) of this
Subsection, days of closure under Paragraph (2) of this Subsection,
Mardi Gras only in those parishes in which the governing authority of
the parish declares a holiday under authority of Subsection A(3) of this
Section, and all Saturdays and Sundays shall be considered as legal
holidays for the purposes of Article 5059 of the Louisiana Code of Civil
Procedure.

(4) The Municipal Court of New Orleans and the Traffic Court of
New Orleans shall have the same legal holidays as the Civil District
Court for the parish of Orleans and the Criminal District Court for the
parish of Orleans.

Subsection b in this section does allow the governor to declare additional legal

holidays and provides that the chief judge can declare a legal holiday when an

emergency situation exists. However, there is no authority for the chief judge to

simply declare a legal holiday for the clerk of court’s office.

Therefore, while the clerk of court’s office was closed, it was not a legal

holiday. Granted, no party would have been able to physically file petitions, but the

Wrights chose to file their petition by facsimile filing. Pursuant to Antoine v.

McDonald’s Restaurant, 98-1736 (La.App. 3 Cir. 5/5/99), 734 So.2d 1257, this court

has held that the facsimile transmission does not have to be received during the

regular office hours of the clerk’s office. The court noted that “[t]he purpose of the

statute is carried out by looking to the fax filing as complete for prescription purposes

upon receipt of the transmission by the clerk’s office, while the filing of a receipt by

the clerk of court serves only as an acknowledgment and proof of the time of the fax

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filing.” Id. at 1260.

Since the Wrights filed their petition by facsimile transmission, they were

obligated to follow the mandates of La.R.S. 13:850(B), which required them to

submit the original signed document and filing fees within five days, exclusive of

legal holidays. Counting legal holidays, the fifth day fell on January 9, 2005, and the

Wrights did not file their documents until January 10, 2005. Pursuant to

La.R.S.13:850(C), the facsimile filing had no effect because the Wrights failed to

submit the required documents within five days. The trial court was correct in

granting the exception of prescription filed by the St. Landry Public Housing

Corporation.

For these reasons, the judgment of trial court granting the exception of

prescription filed by the St. Landry Public Housing Corporation is affirmed. All costs

of this appeal are assessed to Pearlie and Fillmore Wright.

AFFIRMED.

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