James E. McCrory v. Can Do, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-982

JAMES E. McCRORY
VERSUS
CAN DO, INC., ET AL.

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 10-16413
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

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BILLY H. EZELL
JUDGE

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Court composed of Judges Elizabeth A. Pickett, Billy H. Ezell, and J. David
Painter.

MOTION TO DISMISS APPEAL DENIED;
CASE REMANDED WITH INSTRUCTIONS.

Andrew Robinson Johnson, IV
Plauche, Smith & Nieset
Post Office Box 1705
Lake Charles, LA 70629
(337) 436-0522
Counsel for Defendant/Appellee:
Lake Charles Pilots, Inc.

Lawrence N. Curtis
Attorney at Law
Post Office Box 80247
Lafayette, LA 70598-0247
(337) 235-1825
Counsel for Plaintiff/Appellant:
James E. McCrory

Clayton Arthur Larsh Davis
Samuel Bryan Gabb
Lundy & Davis
Post Office Box 3010
Lake Charles, LA 70602-3010
(337) 439-0707
Counsel for Defendants/Appellees:
Dockwise Shipping B.V.
Shelf Company Management Services, Ltd.
The Standard Club
Dockwise USA, Inc.

John B. Peuler
Anthony D'Alto, II
Elizabeth O. Clinton
Peuler & Ernst
701 Poydras Street, Ste 3845
New Orleans, LA 70139
(504) 587-7107
Counsel for Defendant/Appellee:
Can Do, Inc.

EZELL, Judge.

The Defendants-Appellees, Dockwise USA, Inc.; Dockwise Shipping B.V.;

Shelf Company Management Services, Ltd.; The Standard Club; Can Do., Inc.; and

Lake Charles Pilots, Inc., move to dismiss the appeal by the Plaintiff-Appellant,

James E. McCrory, as untimely. For the reasons assigned below, although we deny

the motion to dismiss the appeal, we remand this matter for further proceedings in

accordance with this court’s ruling herein.

The Plaintiff filed suit against the Defendants seeking damages which arose

from an incident in which the Plaintiff’s fishing boat was capsized. The matter was

tried before a jury, and on August 18, 2005, the jury returned a verdict finding the

Defendants free of fault. The trial court signed a written judgment in conformity with

the jury’s verdict on November 2, 2005; the clerk of the trial court sent the notice of

judgment five days later, on November 7, 2005.

On May 31, 2006, the Plaintiff filed, by facsimile, a motion and order for a

devolutive appeal. That facsimile filing was followed by another copy of the motion,

sent by mail, on June 2, 2006. Also on June 2, the trial court informed the Plaintiff,

by letter, that, in light of the Defendants’ opposition, the motion for appeal should be

resubmitted as a contradictory motion. Regardless, on June 16, 2006, the trial court

signed the order granting the appeal.

On June 19, 2006, the trial court issued a rule to show cause and set a hearing

on the Rule for July 26, 2006. However, on July 19, 2006, the trial court informed

all counsel that under La.Code Civ.P. art. 2088, the order of appeal, signed on June

16, divested the trial court of jurisdiction in the matter and that any remaining issues

related to the timeliness of the appeal should be addressed by the appellate court.

The instant motion to dismiss was filed in this court on August 3, 2006. The

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Defendants contend that the Plaintiff’s appeal should be dismissed as untimely. The

Plaintiff has filed a memorandum in opposition to the motion.

Initially, we note that the Plaintiff’s motion for a devolutive appeal was clearly

filed more than sixty-days after the mailing of the notice of judgment. The sixty day

delay for obtaining a devolutive appeal from the judgment of August 18, 2005, began

to run seven days, exclusive of holidays, from the mailing of the notice of this

judgment on November 7, 2005. La.Code Civ.P. art. 2087. However, the Plaintiff

requested, in the motion for appeal, an extension of the deadline for filing the appeal

pursuant to La.R.S. 9:5824, which statute was enacted in the wake of the destruction

wrought upon the state by Hurricane Katrina and Hurricane Rita, and which granted

a suspension or extension of legal deadlines, under certain circumstances, for parties

or attorneys located in some of the affected areas.

Louisiana Revised Statutes 9:5824(B)(1) provides:

(1) Notwithstanding the provisions of R.S. 9:2552 or 2553
[redesignated 9:5822 and 9:5823], a party who is domiciled within the
parishes of Cameron, Orleans, Plaquemines, St. Bernard, Jefferson, or
Vermilion, or whose cause of action arose within such parishes or whose
attorney is domiciled within or has a law office within such parishes,
may seek in any court of competent jurisdiction in this state a limited
suspension and/or extension of prescription or peremption periods or
other legal deadlines, beyond the termination dates provided in R.S.
[9:5822 and 5823], by contradictory motion or declaratory judgment.
The party seeking an additional suspension and/or extension, in
accordance with the provisions of this Section, shall bear the burden of
proving by a preponderance of the evidence that the motion was filed at
the earliest time practicable and but for the catastrophic effects of
Hurricane Katrina or Rita, the legal deadline would have been timely
met. If the court grants the motion, the prescription or peremptive
period or other legal deadline shall be suspended or extended for a
period not to exceed thirty days from the date of the granting of the
motion. This limited suspension or extension shall terminate on June 1,
2006, and any right, claim, or action which would have expired during
the time period of January 4, 2006, through May 31, 2006, shall lapse
on June 1, 2006.

In their brief to this court, the Defendants assert, in part, that the trial court

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erred by signing the order for appeal because the Plaintiff did not meet the

requirements expressed in the statute. We observe that La.R.S. 9:5824(B) requires

that a party seek a suspension or extension of the time delays “by contradictory

motion or declaratory judgment.” We note that the Plaintiff titled its filing in the trial

court a “Motion and Order for a Devolutive Appeal.” We also note that, on its face,

the motion for appeal appears untimely.

However, because the Plaintiff asserted a claim under La.R.S. 9:5824 in the

motion for appeal, we find that a contradictory hearing must be held at which Plaintiff

can be afforded the opportunity to meet the burden of proof imposed by La.R.S.

9:5824. Therefore, we deny the Defendants’ motion to dismiss the appeal, but we

remand the matter to the trial court for a contradictory hearing to determine whether

the Plaintiff was entitled to an extension of the delay for filing the instant appeal

pursuant to La.R.S. 9:5824.

MOTION TO DISMISS APPEAL DENIED; CASE REMANDED
WITH INSTRUCTIONS.

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