State of Louisiana v. Patrick Landry

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1013

STATE OF LOUISIANA
VERSUS
PATRICK LANDRY

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 02J128
HONORABLE KEITH J. COMEAUX, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, J. David Painter, and James T. Genovese,
Judges.

RULE RECALLED. APPEAL MAINTAINED.

Katie Boudreaux
105 Janice Avenue
New Iberia, LA 70563
(337) 383-8900
PLAINTIFF/APPELLANT:
IN PROPER PERSON

Kenneth Martinez
State of Louisiana
Support Enforcement Services
Post Office Box 119
Ville Platte, LA 70586
(337) 363-6639
COUNSEL FOR PLAINTIFF:
State of Louisiana

Glenda Huddleston
Attorney at Law
214 E. Washington Street
New Iberia, LA 70563
(337) 365-2336
COUNSEL FOR DEFENDANT/APPELLEE:
Patrick Landry

AMY, Judge.

This court issued, sua sponte, a rule ordering the Plaintiff-Appellant,

Katie Boudreaux, to show cause, by brief only, why the appeal in this matter

should not be dismissed as premature. On September 4, 2007, this court

received Appellant’s response to the rule. For the reasons given herein, we

hereby recall the rule and maintain the appeal.

On November 2, 2006, the trial court held a child support modification

hearing. The judgment was signed on March 8, 2007. Appellant filed a

motion for new trial on March 20, 2007. On March 27, 2007, the trial court

wrote the words “denied without hearing” across the proposed order to show

cause. On March 30, 2007, Appellant filed a motion for devolutive appeal

which was granted by order signed on April 3, 2007. On April 4, 2007, a

motion for new trial on behalf of the State of Louisiana was filed into the court

record to which motion was attached an order reflecting that on April 3, 2007,

the trial court had written “denied w/out hearing” across the order to show

cause.

In Egle v. Egle, 05-0531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780, this

court held that the notation “Denied” written across a rule to show cause order

which had been attached to a motion for new trial was insufficient to satisfy the

statutory requirement that a final judgment be “identified as such by

appropriate language.” See La.Code Civ.P. art. 1918. Further, this court found

that the appeal in Egle was premature under La.Code Civ.P. art. 2087(D)

because it was granted before the trial court had sufficiently disposed of the

motion for new trial.

In the instant case, when the appeal was lodged in this court on August

16, 2007, it appeared that the appeal was premature because the trial court had

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addressed the parties’ motions for new trial by simply writing “denied without

a hearing” across the show cause orders. However, Appellant submitted two

judgments to this court when responding to this court’s order that Appellant

show cause why her appeal should not be dismissed as premature. These

judgments reflect that on August 29, 2007, the trial court issued two new

judgments denying the two motions for new trial. The judgments are each

entitled “Final Judgment of Denial on Motion for New Trial.” A supplemental

record containing these judgments has been filed in this court. We find that the

judgments of August 29, 2007 are in the appropriate form to constitute a proper

judgment disposing of the motions for new trial.

Louisiana Code of Civil Procedure Article 2123(C) provides:

An order of appeal is premature if granted before the court
disposes of all timely filed motions for new trial or judgment
notwithstanding the verdict. The order becomes effective upon
the denial of such motions.

“The second sentence of this provision . . . makes it clear that the trial court’s

denial of a motion for new trial during the pendency of an appeal cures the

defect of prematurity.” Sullivan v. Franicevich, 04-0321 (La.App. 4 Cir.

3/9/05), 899 So.2d 602, 604 (citation omitted), writ denied, 05-0880 (La.

5/20/05), 902 So.2d 1051, writ denied, 05-0920 (La. 5/20/05), 902 So.2d 1055.

The Louisiana Supreme Court has held that once a previously existing defect

has been cured, there is no useful purpose in dismissing an otherwise valid

appeal. Overmier v. Traylor, 475 So.2d 1094 (La.1985).

Accordingly, in the instant case, we find that the appeal order was

granted prematurely because the trial court had not yet issued valid judgments

regarding the motions for new trial, and therefore, we did not have jurisdiction

over the appeal. However, we find that the trial court’s subsequent issuance

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of valid judgments denying the motions for new trial cured the jurisdictional

defect of prematurity. As such, we find that although the appeal was premature

at the time it was lodged in this court, the appeal has since been perfected and

should be maintained.

RULE RECALLED. APPEAL MAINTAINED.

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