James L. Harrell, Et Ux. v. Shawqi Abdallah Ali

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 16-254

JAMES L. HARRELL, ET UX.

VERSUS

SHAWQI ABDALLAH, ET AL.

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APPEAL FROM THE
ALEXANDRIA CITY COURT
PARISH OF RAPIDES, NO. 124,717
HONORABLE RICHARD ERIC STARLING, JR., CITY COURT JUDGE

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ELIZABETH A. PICKETT

JUDGE

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Court composed of Judges Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis
M. Keaty.

APPEAL DISMISSED.

Steven Patrick Mansour
Attorney at Law
Post Office Box 13557
Alexandria, LA 71315
(318) 442-4855
COUNSEL FOR PLAINTIFFS/APPELLEES:
James L. Harrell
Delores Ann Harrell

Francis Edward Mouton, III
Mouton Law Firm
400 Travis St., Suite 1102
Shreveport, LA 71101-3144
(318) 221-5213
COUNSEL FOR DEFENDANTS/APPELLANTS:
Shawqi Ali
Shawqi Abdallah

PICKETT, Judge.

On April 28, 2016, the plaintiffs, James L. Harrell and Dolores Ann Harrell,

filed a Motion and Order to Dismiss Appeal, asserting therein that the motion for

appeal filed by the defendants, Shawqi Abdallah and Shawqi Ali, was filed

untimely.

The instant case arises from the sale of an automobile purchased by the

plaintiffs from the defendants. The plaintiffs filed suit against the defendants,

seeking recision of the sale on the basis of redhibitory defects and fraud. A trial on

the merits was held on July 1, 2015. On August 31, 2015, the trial court issued

Written Reasons for Judgment, awarding the plaintiffs $20,000.00 for recision of

the sale, plus legal interest from the date of the sale. The trial court also awarded

$1,167.99 for taxes and registration, $323.10 for repair costs incurred by the

plaintiffs, and attorney fees equaling one-third of all sums due. On September 16,

2015, a written judgment was signed by the lower court, and notice of judgment

was mailed to the parties on September 17, 2015.

The defendants filed a Motion for New Trial on September 30, 2015. On

November 12, 2015, the plaintiffs filed a Motion and Order to Dismiss Motion for

New Trial wherein they asserted that pursuant to La.Code Civ.P. art 4907, the

defendants’ motion for new trial was filed untimely.

Article 4907 reads:

A. After judgment is signed in the parish or city court, a party may
make a written request or motion for new trial for any of the grounds
provided by Articles 1972 and 1973.

B. The delay for applying for a new trial shall be seven days,
exclusive of legal holidays. Where notice of judgment is required, this delay
commences to run on the day after the clerk has mailed, or the sheriff has
served, the notice of judgment.

Because notice of judgment was mailed to counsel for the defendants on

September 17, 2015, the plaintiffs urged that the delay for filing a motion for a new

trial had expired days before the defendants filed their motion for new trial

September 30, 2015. On December 9, 2015, the trial court signed an Order

Dismissing Motion for New Trial, stating that there was no reason to grant the

motion. Notice of this judgment is not found in the record.

The defendants subsequently filed a motion for appeal on December 23,

2015, wherein they stated that they timely filed their motion for new trial on

September 16, 2015, that the motion was denied on December 9, 2015, and that

notice of judgment was mailed to the parties on December 9, 2015. The

defendants expressed their desire to take a suspensive appeal, or in the alternative,

a devolutive appeal, from the August 31, 2015 judgment, to the Ninth Judicial

District Court.

In a letter dated January 4, 2016, counsel for the plaintiffs notified the trial

court that an issue remained as to the timeliness of the defendants’ motion for new

trial. Counsel added (emphasis in original):

As a supplement to my Memorandum in Support of Motion to
Dismiss, I just determined from the suit record that counsel for defendants
had sent the Court a Fax Cover on November 13, 2015. In that
communication with the Court, Mr. Mouton faxed the Court a cover sheet
showing a faxed copy of his Motion for New Trial was sent to me on
September 16, 2015, however, there is no indication that a copy of the
Motion was fax filed with the Clerk. As the Court is aware, a faxed copy to
opposing counsel of a pleading does not suffice to meet the requirements of
a fax filing with the Clerk of Court. Counsel’s fax cover sheet of November
13, 2015 also states his attachments show the “mailing dates for the Motion
for New Trial on September 16, 2015”. As this Court is aware, the delay
for applying for new trial under La. C.C.P. Article 4907(B) is by filing of
their Motion within seven days after notice of judgment. The delays
commence to run until a party files their Motion, not from the day they
mailed their Motion.

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In an Order signed by the trial court on January 11, 2016, it found that the

defendants’ motion for new trial was filed untimely and dismissed the motion. In

response, the defendants filed a motion to amend their previously filed motion for

appeal, urging therein that a motion for new trial was placed in the United States

mail on September 16, 2015, and that they timely notified all parties of their intent

to file the motion by faxing a copy of the motion that same day. The defendants

added that the motion was later recorded by the Alexandria City Court Clerk on

September 30, 2015.

After the appeal was lodged in this court, the plaintiffs filed a Motion and

Order to Dismiss Appeal, arguing that the trial court found that the defendants’

motion for new trial was filed untimely and that the defendants have not appealed

the trial court’s ruling. Since the motion for a new trial was filed untimely, the

plaintiffs assert that the appeal delays were not suspended. Unlike district court, if

no motion for new trial is timely filed in an action in city court, the delays for

appeal begin to run from the date of the judgment or from the service of notice of

judgment. Southern Inspection and Testing, Inc. v. Skyline Steel Corp., 03-203

(La.App. 5 Cir. 5/28/03), 848 So.2d 132. Pursuant to La.Code Civ.P. art 5002(A),

in the instant case, the defendants had ten days from service of notice of judgment

within which to seek an appeal; thus, the plaintiffs conclude that the deadline to

appeal expired before the motion to appeal was filed.

The record shows that the defendants alleged in their amended motion for

appeal that the motion for new trial was mailed to the trial court on September 16,

2015, and recorded by the clerk of court on September 30, 2015. Further, the trial

court found that the defendants’ motion for new trial was filed untimely, and the

defendants did not seek review of the ruling. In the absence of a timely filed

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motion for new trial, we find that the ten-day appeal delay began to run on

September 17, 2015, when notice of judgment was served; thus, the motion for

appeal filed on December 23, 2015, was untimely. Accordingly, we hereby

dismiss the appeal at defendants’ cost.

APPEAL DISMISSED.

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

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