Hattie Young and Alfred Pitre v. Kim Bourgeois

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-465

HATTIE YOUNG AND ALFRED PITRE

VERSUS

KIM BOURGEOIS, ET AL

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 779,037-A (B)
HONORABLE CHUCK RANDALL WEST, DISTRICT JUDGE

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CANDYCE G. PERRET

JUDGE

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Court composed of Candyce G. Perret, Jonathan W. Perry, and Ledricka J. Thierry,
Judges.

MOTION TO DISMISS APPEAL DENIED.

Donald Lynn Mayeux
Attorney at Law
Post Office Drawer 1460
Eunice, LA 70535
(337) 457-9610
COUNSEL FOR PLAINTIFF/APPELLANT:
Hattie Young
Alfred Pitre

Anthony Craig Dupre
Attorney at Law
Post Office Drawer F
Ville Platte, LA 70586
(337) 363-3804
COUNSEL FOR DEFENDANT/APPELLEE:
Kim Bourgeois

Michael Fontenot
In Proper Person
1094 Dossman Lake Road
St. Landry, LA 71367
(000) 000-0000
COUNSEL FOR DEFENDANT/APPELLEE:
Michael Fontenot

PERRET, Judge.

Defendant-Appellee, Kim Bourgeois, has filed a Motion to Dismiss Appeal

on the basis that the brief filed by Plaintiffs-Appellants, Hattie Young and Alfred

Pitre, is deficient and noncompliant with Uniform Rules—Courts of Appeal, Rule

2-12.4. For the reasons set forth herein, we deny the motion.

On November 15, 2019, Defendant-Appellee, Michael Fontenot was cutting

branches from a tree allegedly owned by Defendant, Kim Bourgeois, on property

adjacent to a lot owned by Plaintiffs, Hattie Young and Alfred Pitre. The tree

extended over the property line and hung over a mobile home situated on Plaintiffs’

property. While Michael Fontenot was cutting the branches, the branches fell on

the mobile home causing damage to the home and injuring Hattie Young.

Plaintiffs filed suit on November 16, 2020, naming Michael Fontenot and

Kim Bourgeois as Defendants. Following a trial on the merits, judgment was

rendered in favor of Plaintiffs and against Defendant, Michael Fontenot. All

claims against Defendant, Kim Bourgeois, were dismissed. A final judgment was

signed on May 8, 2023. Plaintiffs filed a Motion for Devolutive Appeal on June 15,

2023, and an Order for Devolutive Appeal was signed by the trial court on June 19,

2023.

After the appeal was lodged in this court and after Plaintiffs filed their

appellate brief, Defendant, Kim Bourgeois, filed a Motion to Dismiss Appeal,

asserting therein that Plaintiffs’ brief is deficient and noncompliant with Uniform

Rules—Courts of Appeal, Rule 2-12.4 in that it does not contain the following:

A) a concise statement of the case, indicating the nature of the case, the
action of the trial court and the disposition;

B) assignment of alleged errors;

C) a list of issues presented for review;

D) a statement of facts relevant to the assignments of error and issues for
review with reference to specific page numbers of the record;

E) a valid certificate of service, since it does not delineate that a copy was
sent to Judge Chuck R. West, nor to what address it was sent; and

G) a copy of the Judgment or Order of the trial court which is being
appealed.

Bourgeois, also asserts that a copy of Plaintiffs’ Motion for Devolutive Appeal was

never sent to Defendant, Michael Fontenot, in proper person, as can be seen by

reference to the certificate of service and service instructions. Due to

noncompliance with Rule 2-12.4, Bourgeois maintains that it is impossible to

address Plaintiffs’ brief since there are no assignments of error or issues presented

for review to which he can respond. As such, Bourgeois moves this court to

dismiss Plaintiffs’ appeal, with prejudice and at Plaintiffs’ costs. Bourgeois also

prays that the deadline to file Appellee’s brief be extended and reset pending this

court’s ruling on the motion to dismiss the appeal.

In their Answer to Motion to Dismiss Appeal, Plaintiffs deny that their brief

is deficient and noncompliant with Rule 2-12.4. Plaintiffs state that their brief

contains a concise statement. Regarding the assignment of alleged errors,

Plaintiffs assert that the trial court erred in finding that Bourgeois was not liable.

A list of issues, Plaintiffs maintain, include the award of $2,500.00 to Hattie

Young and $1,800.00 to Alfred Pitre by Michael Fontenot who was never a part of

the claim. Plaintiffs state that the other error is that there was no money awarded

to Plaintiffs from Bourgeois. Further, Plaintiffs claim that the amount of their

trailer damage should have been a very high sum because the amount declared by

the witnesses totaled more than $41,540.00. Plaintiffs also state that the

assignments of error and issues for review are discussed on the pages of the brief.

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Next, Plaintiffs state that their appellate brief was attached to the original

brief, and a copy was sent to Judge Chuck West at the correct address, Evangeline

Parish Courthouse, P.O. Box 1017, Ville Platte, LA 70586. Also, a copy of the

trial court’s judgment or order was prepared and sent. Lastly, Plaintiffs confirm

that they did not send anything to Michael Fontenot because he has never been

located and his address is unknown despite a hard effort to find him. Plaintiffs

conclude that their brief and answer cover the assignments of error or issues for

review—that Bourgeois was not ordered to pay money to Plaintiffs. Plaintiffs have

no objection to Bourgeois’ request for an extension of time in which to file his

brief.

We note that Plaintiffs’ brief contains the following: table of contents, table

of authorities, affidavit of verification, statement of jurisdiction, statement of the

case and action of the trial court, argument, and conclusion. The format of the

brief does not comply with Rule 2-12.4 in that it does not contain several required

items, including an assignment of alleged errors, issues for review, and a statement

of facts relevant to the assignments of error and issues for review with reference to

specific page numbers of the record. Uniform Rules—Courts of Appeal, Rule 2-

12.13 provides that “[b]riefs not in compliance with these Rules may be stricken in

whole or in part by the court, and the delinquent party or counsel of record may be

ordered to file a new or amended brief.” Thus, the sanction to be imposed for a

nonconforming brief is left to the discretion of the court. Smith v. State through

Dept. of Transp. and Dev., 21-192 (La.App. 3 Cir. 3/3/22), 350 So.3d 879.

Rule 2-12.13 does not set forth the dismissal of the appeal as a penalty for

noncompliance with Rule 2-12.4. Although not a typical brief which conforms to

Rule 2-12.13, with the assignment of alleged errors, issues for review, and a

statement of facts relevant to the assignments of error and issues for review with
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reference to specific page numbers of the record, we find that the brief does set

forth the basic premise of Plaintiffs’ argument. Further, Plaintiffs clarify the

alleged errors and issues for review in their Answer to Motion to Dismiss Appeal.

Accordingly, we deny the motion to dismiss the appeal. Bourgeois is given until

October 23, 2023, to file an Appellee’s brief.

MOTION TO DISMISS APPEAL DENIED.

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

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