Ma Raquel Morales v. Carniceria El Ranchito

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-273

MA RAQUEL MORALES AND
NICHOLAS MORALES

VERSUS

CARNICERIA EL RANCHITO, INC. AND
NAUTILUS INSURANCE COMPANY

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2018-1683
HONORABLE ROYALE L. COLBERT, JR., DISTRICT JUDGE
(HONORABLE EDWARD D. RUBIN, FORMERLY PRESIDING)

**********

CHARLES G. FITZGERALD
JUDGE

**********

Court composed of Shannon J. Gremillion, John E. Conery, and Charles G.
Fitzgerald, Judges.

MOTION TO DISMISS GRANTED.

Jeffery F. Speer
Doucet-Speer, APLC
617 Saint John Street
Lafayette, Louisiana 70502-4303
(337) 232-0405
Counsel for Plaintiffs/Appellants:
Ma Raquel Morales
Nicholas Morales

Robert D. Felder
James H. Domengeaux, Jr.
Davidson, Meaux, Sonnier, McElligott,
Fontenot, Gideon & Edwards
801 South Buchanan Street
Lafayette, Louisiana 70501
(337) 237-1660
Counsel for Defendants/Appellees:
Carniceria El Ranchito, Inc.
Nautilus Insurance Company

FITZGERALD, Judge.

In this appeal, Plaintiffs assert that the trial court’s grant of summary judgment

is an absolute nullity because of noncompliance with La.Code Civ.P. art. 966(C)(1).

Defendants, on the other hand, seek dismissal because the appeal was not timely

filed.

FACTS AND PROCEDURAL HISTORY

In March 2017, Ma Raquel Morales allegedly sustained injuries after tripping

and falling at a restaurant. Eleven months later, Ma Raquel and her husband,

Nicholas Morales, filed a petition for damages against the restaurant, Carniceria El

Ranchito, Inc., and its insurer, Nautilus Insurance Company.

In response, Defendants answered the petition. Then, eighteen months later,

Defendants filed a motion for summary judgment, seeking the dismissal of all claims.

The hearing on the motion for summary judgment was originally scheduled for April

6, 2020. But this hearing date was continued because of a court-closure order in

response to COVID-19.

The very next document in the record is the Judgment of June 22, 2020, which

granted summary judgment in favor of Defendants. However, there is nothing in the

record—no order, notice, or minute entry—that addresses the rescheduling of the

summary-judgment hearing. More precisely, there is nothing on the face of the

record showing that notice of the new hearing date was served on Plaintiffs in

accordance with law.

On August 13, 2020, Plaintiffs filed a motion for devolutive appeal. Then, on

January 14, 2021, Plaintiffs and Defendants filed in this court a joint motion to

dismiss the appeal without prejudice. The joint motion states that “all parties have

determined that the relief currently sought by Plaintiffs-Appellants should be sought

via motion in the 15th Judicial District Court rather than via an appeal at this time.”

The following day, on January 15, 2021, the Order dismissing Plaintiffs’ appeal in

docket number 20-530 was signed by this court.

Next, on March 22, 2021, Plaintiffs filed an ex parte motion to annul summary

judgment in the district court. The order accompanying the motion contained

language similar to this: the Judgment of June 22, 2020, is null and void. The trial

judge did not sign the order as presented. Rather, the judge stamped “DENIED” on

the face of the order, but then added the following language below his signature:

“THIS MATTER HAS BEEN FIXED FOR HEARING ON MAY 24, 2021[.]”

Importantly, the trial judge did not deny Plaintiffs’ motion to annul summary

judgment; the judge simply denied granting the motion by ex parte order, choosing

instead to set the matter for contradictory hearing.

Nevertheless, on April 13, 2021, Plaintiffs filed a second motion for

devolutive appeal. This is the appeal now before us. This appeal, like Plaintiffs’

first appeal, seeks review of the trial court’s grant of summary judgment.

To this end, Plaintiffs assert a single assignment of error: “The trial Court

erred in granting the defendants[’] Motion for Summary Judgment because a

judgment rendered without the required service is an absolute nullity.”

Defendants responded by filing an opposition brief along with a motion to

dismiss the appeal.

LAW AND ANALYSIS

At the outset, Defendants argue that Plaintiffs’ appeal should be dismissed

because it was not timely filed. We agree. The Judgment being appealed was signed

on June 22, 2020. Notice of signing of judgment was mailed the following day. This

appeal was initiated on April 13, 2021, when Plaintiffs filed a motion for devolutive

appeal. Our order dismissing Plaintiffs’ first appeal had no effect on the delay for

taking this appeal. Hence, Plaintiffs had just over sixty days from the Judgment of
2

June 22, 2020, to perfect this appeal. See La.Code Civ.P. art. 2087. Yet they waited

nearly ten months to do so. For these reasons, we grant Defendants’ motion to

dismiss.

Our ruling does not mean that Plaintiffs are without a remedy. Plaintiffs still

have a nullity action pending in the trial court. Thus, the hearing on Plaintiffs’

motion to annul summary judgment needs to be reset. If either party objects to the

trial court’s ruling on the motion to annul, that party can seek review by this court

by filing a timely appeal.

With this in mind, La.Code Civ.P. art. 966(C)(1) mandates how notice of the

summary-judgment hearing must be served. The notice requirements under Article

966(C)(1) are fundamental to procedural due process. Acadian Props. Northshore,

L.L.C. v. Fitzmorris, 17-424 (La.App. 1 Cir. 11/1/17), 234 So.3d 927. And notice

under Article 966(C)(1) applies to both originally scheduled hearings as well as

rescheduled hearings. Dehart v. Jones, 18-764 (La.App. 3 Cir. 3/27/19), 269 So.3d

801.

DECREE

Defendants’ motion to dismiss is granted, and Plaintiffs’ appeal is therefore

dismissed. Costs of the appeal are assessed to Plaintiffs, Ma Raquel Morales and

Nicholas Morales.

MOTION TO DISMISS GRANTED.

3