George L. Bruce v. Ford Motor Company

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 13-179

GEORGE L. BRUCE

VERSUS

FORD MOTOR COMPANY, ET AL.

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APPEAL FROM THE
PINEVILLE CITY COURT
PARISH OF RAPIDES, NO. 2010CV00236
HONORABLE JESSE PHILLIP TERRELL, JR., CITY COURT JUDGE

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SHANNON J. GREMILLION

JUDGE

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Court composed of James T. Genovese, Shannon J. Gremillion, and John E.
Conery, Judges.

MOTION TO DISMISS APPEAL DENIED.

Fred Andrew Pharis
Pharis & Pharis
831 DeSoto Street
Alexandria, LA 71301
(318) 445-8266
COUNSEL FOR PLAINTIFF/APPELLEE:
George L. Bruce

Carl Joseph Giffin, Jr.
Bernard, Cassisa, Elliot & Davis, A.P.L.C.
3838 N. Causeway Boulevard, #3050
Metairie, LA 70002
(504) 834-2612
COUNSEL FOR DEFENDANTS/APPELLANTS:
Ford Motor Company
Marler Ford Co., Inc.

GREMILLION, Judge.

The Plaintiff-Appellee, George L. Bruce, moves to dismiss this appeal on

the ground that the appeal was not filed timely. For the reasons given herein, we

deny the motion.

Plaintiff sued Defendants, Ford Motor Company and Marler Ford Company,

Inc., in Pineville City Court seeking damages and rescission of the sale of a truck.

Following a bench trial, a judgment was rendered in Plaintiff’s favor. Thereafter,

Defendants filed a motion for new trial, and the motion was heard on April 13,

2012. After having taken the matter under advisement, the trial court signed a

judgment denying the motion for new trial on August 10, 2012. On September 7,

2012, Defendants filed a motion for suspensive appeal, and the order of appeal was

signed on October 5, 2012. Defendants subsequently posted an appeal bond, and

the appeal was lodged in this court on February 21, 2012.

Plaintiff seeks to have this court dismiss this appeal for having been filed

untimely. Plaintiff notes that the time delay for the appeal in this case is governed

by La.Code Civ.P. art. 5002. Pursuant to La.Code Civ.P. art. 5002(A), an appeal

from a judgment rendered by a city court must be taken “within ten days . . . from

the service of the notice of judgment.” Also, La.Code Civ.P. art. 5002(B)

provides that “[w]hen an application for new trial is timely filed . . . the delay for

appeal commences on the day after the motion is denied, or from service of notice

of the order denying a new trial, when such notice is necessary.” Plaintiff

acknowledges that the Louisiana Supreme Court has held that “the 10-day appeal

delay provided for in La.Code Civ.Proc. art. 5002 commences to run upon receipt

of notice of judgment rather than upon the mere mailing of said notice.” Myles v.

Turner, 612 So.2d 32, 35 (La.1993).

In the instant case, we note that the appeal record contains two notices of the

mailing of judgment for the trial court’s ruling of August 10, 2012, which denied

Defendants’ motion for new trial. The first notice of judgment indicates that the

notice was sent by regular mail to all parties on August 14, 2012. A second notice

of judgment indicates that a notice of judgment was sent by certified mail to

Defendants on August 28, 2012.

Plaintiff asserts that unless Defendants can show that they did not receive

the first notice of judgment, this court lacks jurisdiction to consider the appeal.

Noting that the first notice of judgment was mailed on August 14, 2012, and that

Defendants’ motion for appeal was not filed until September 7, 2012, Plaintiff

argues that it is highly unlikely that it took Defendants 24 days to receive the first

notice of judgment which was sent from Pineville, Louisiana, to Metairie,

Louisiana. Further, Plaintiff contends that there is nothing in the record to show

that Plaintiff did not receive that first notice of judgment. According to Plaintiff,

the second notice of judgment did not abrogate the effects of the first notice of

judgment. Also, Plaintiff contends that there is no requirement that a notice of

judgment be sent by certified mail, as was the case with the second notice of

judgment sent in this case.

In their opposition to Plaintiff’s motion to dismiss the appeal, Defendants

contend that the first notice of judgment, dated August 14, 2012, was insufficient.

Defendants contend that on June 29, 2012, Defendants’ counsel’s law firm had

relocated its offices from 1615 Metairie Road to 3838 N. Causeway, Suite 3050, in

Metairie, Louisiana. Defendants note that the address listed on the first notice of

judgment was Defense counsel’s old office address. Defendants maintain that the

clerk of court’s office was verbally notified of defense counsel’s new office

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address and that defense counsel periodically called the clerk of court’s office to

see if a judgment had been rendered. Defendants argue that a notice of judgment

mailed to the wrong address is insufficient. Defendants also argue that the August

14, 2012, notice of judgment was insufficient because it does not contain a

certification signed by the deputy clerk.

Defendants assert that their motion for appeal was timely filed once they

received the second notice of judgment which contained a signed certification.

Defendants note that although the second notice of judgment indicates that the

notice of judgment was mailed on August 28, 2012, the envelope that contained the

notice was postmarked August 29, 2012. Defendants also note that the second

notice of judgment was sent to the correct address for Defendants’ counsel.

Defendants also contend that due to the occurrence of Hurricane Isaac, a

declaration of emergency was declared for Louisiana from August 27, 2012 to

September 3, 2012, and that defense counsel’s office was without power and

closed from August 28, 2012 to September 3, 2012. At any rate, Defendants assert

that their motion for appeal, which was filed on September 7, 2012, was filed

within 10 days of their receipt of the second notice of judgment.

We note that after a judgment on the merits was rendered in favor of

Plaintiff, Defendants filed a motion for new trial. We also note that a hearing was

held on the motion for new trial and that the trial court took the matter under

advisement. Under these circumstances, we find that a mailing of notice of

judgment was necessary. Thus, pursuant to La.Code Civ.P. art. 5002(B),

Defendants were required to file their motion for appeal within 10 days of the

service of the notice of judgment. The Louisiana Supreme Court has interpreted

the “service of notice” language used in Article 5002 to mean “receipt of notice.”

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See Myles, 612 So.2d 32. Therefore, in the instant case, we find that the 10-day

appeal delay set forth in La.Code Civ.P. art. 5002(B) did not commence to run

until Defendants received the notice of the judgment denying their motion for new

trial.

Thus, the question regarding the timeliness of the instant appeal hinges upon

a determination of the date on which Defendants received the notice of judgment.

While the judgment denying Defendants’ motion for new trial was signed on

August 10, 2012, and the first notice of judgment was sent on August 14, 2012,

Defendants did not file their motion for appeal until September 7, 2012. We find

that Defendants have offered a plausible explanation as why they did not receive

the first notice of judgment. In that regard, we note that Defendants contend that

although Defendants’ counsel’s office had been relocated, the first notice of

judgment was addressed to the defense counsel’s old address. We find that even if

that first notice of judgment had been mailed to the correct address, the first notice

of judgment was still lacking because, as pointed out by Defendants, the

certification on that notice of judgment was not signed by the deputy clerk. Under

the factual circumstances of this case, we find that the mailing of a second notice

of judgment was warranted and that the 10-day appeal delay commenced to run

upon Defendants’ receipt of the second notice of judgment which was mailed on

August 29, 2012. Since the motion for appeal, which was filed on September 7,

2012, was filed nine days after the mailing of the notice of judgment, we find that

the appeal was filed within 10 days of Defendants’ receipt of the mailing of the

notice of judgment. Therefore, we find the appeal to be timely filed under La.Code

Civ.P. art. 5002.

For the foregoing reasons, we deny Plaintiff’s motion to dismiss the appeal.

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MOTION TO DISMISS APPEAL DENIED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.

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