Tamika Gotch v. Odel P. Robin

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 09-191

TAMIKA GOTCH

VERSUS

ODEL P. ROBIN, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 02-0675
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Sylvia R. Cooks, J. David Painter, and James T. Genovese,
Judges.

APPEAL DISMISSED. CASE REMANDED.

John B. Scofield
Phillip W. De Vilbiss
Scofield, Gerard, Singletary & Pohorelsky
901 Lakeshore Drive, 9th Floor
Lake Charles, LA 70601
(337) 433-9436
COUNSEL FOR DEFENDANTS/APPELLANTS:
ODEL P. ROBIN, ET AL.

R. Edward Blanchard
Sidney W. Degan, III
Travis L. Bourgeois
Christopher J. Stahulak
John W. Strange
Degan, Blanchard & Nash
400 Poydras Street, Suite 2600
New Orleans, LA 70130
(504) 529-3333
COUNSEL FOR DEFENDANTS/APPELLANTS:
ODEL P. ROBIN, ET AL.

Marcus A. Allen, Sr.
Attorney at Law
840 South Washington Street
Lafayette, LA 70501
(337) 289-1762
COUNSEL FOR PLAINTIFF/APPELLEE:
Tamika Gotch

Robert R. Broussard
Attorney at Law
Post Office Drawer 80827
Lafayette, LA 70598-0827
(337) 232-3333
COUNSEL FOR PLAINTIFF/APPELLEE:
Tamika Gotch

PAINTER, Judge.

Upon the lodging of the record in the instant appeal, this court issued, sua

sponte, a rule ordering the Defendants-Appellants, Odel P. Robin, Acadiana Cajun

Wrecker & Towing, and Certain Lloyd’s Underwriters (hereinafter “defendants”), to

show cause, by brief only, why the appeal in this matter should not be dismissed as

premature. On June 4, 2009, this court received the defendants’ response to the rule.

For the reasons given below, we hereby dismiss the appeal.

This case arises out of an automobile accident. Following a bench trial, the

trial court found in favor of the plaintiff and awarded damages. The judgment was

signed on October 10, 2008. Notice of the signing of the judgment was sent on

October 17, 2008. The defendants filed a motion for new trial on October 16, 2008.

On October 20, 2008, the trial court struck through and wrote the word “denied”

diagonally across the proposed order to show cause. No hearing was held on the

motion.

The defendants filed their motion for suspensive appeal on November 7, 2008,

and the order granting the appeal was signed on November 13, 2008. The record in

this case was lodged with this court on February 17, 2009.

Louisiana Code of Civil Procedure Article 1918 provides, in pertinent part, that

“[a] final judgment shall be identified as such by appropriate language.” In the case

at bar, the only language on the purported judgement is the word “denied” written

across the rule to show cause order.

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

previously considered the issue of whether the notation “Denied” written across a rule

to show cause order is sufficient to constitute a judgment on a motion for new trial.

The Egle case was factually similar to the instant case in that no hearing had been

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held on the motion for new trial, and the trial judge simply wrote the notation

“Denied” diagonally across the face of the rule. The court in Egle found such a

notation to be insufficient to satisfy the statutory requirement that a final judgment

be “identified as such by appropriate language.” See La.Code Civ.P. art. 1918. In

Egle, the court looked to La.Code Civ.P. art. 2087(D), which provides that “[a]n order

for appeal is premature if granted before the court disposes of all timely filed motions

for new trial or judgment notwithstanding the verdict.” Since the trial court had not

held a hearing and no valid judgment had been rendered with regard to the motion for

new trial, this court held in Egle that the appeal order was premature. Having found

the appeal order to be premature, this court concluded that it lacked jurisdiction over

the appeal pursuant to La.Code Civ.P. art. 2088.

Likewise, in the instant case, we find that the notation “denied” written on the

rule to show cause order does not constitute a valid judgment on the motion for new

trial. Since the trial court failed to properly dispose of the motion for new trial, we

find that the appeal order signed on November 13, 2008, was premature and that the

trial court was not divested of its jurisdiction. Having concluded that we lack

jurisdiction over this appeal, we find that the appeal must be dismissed and remanded

to the trial court for proper disposition on the defendants’ motion for new trial.

APPEAL DISMISSED. CASE REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.

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