Katherine A. Richey O/B/O John Coogan Richey, Sr. v. Tlc Properties, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CM 11-1304

KATHERINE A. RICHEY O/B/O
JOHN COOGAN RICHEY, SR.

VERSUS

TLC PROPERTIES, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-5383
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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OSWALD A. DECUIR

JUDGE

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Court composed of Oswald A. Decuir, Billy H. Ezell, and J. David Painter, Judges.

MOTION TO REMAND GRANTED.

James Edward Burks
Attorney at Law
Post Office Box 16067
Lake Charles, LA 70616
(337) 474-6106
COUNSEL FOR PLAINTIFF/APPELLANT:
Katherine A. Richey o/b/o John C. Richey, Sr.

Joseph Richard Pousson, Jr.
Plauche', Smith & Nieset
Post Office Box 1705
Lake Charles, LA 70602
(337) 436-0522
COUNSEL FOR DEFENDANT APPELLEE:
TLC Properties, Inc.

DECUIR, Judge.

The Defendant-Appellee, TLC Properties, Inc., moves to remand and dismiss

this unlodged devolutive appeal, on the ground that the Appellant is without the right,

standing or capacity to proceed with this appeal. For the reasons given herein, we

grant the motion to remand and pretermit discussion of the motion to dismiss.

Trial in this matter was held on August 2, 2011. The trial court issued a

judgment in favor of the Defendant, dismissing all of Plaintiff’s claims with prejudice.

The trial court signed a written judgment on August 19, 2011. The Plaintiff filed her

motion and order for appeal, and the order granting a devolutive appeal was signed by

the trial court on October 3, 2011.

In the Defendant’s motion to remand/dismiss the Plaintiff’s unlodged

devolutive appeal, the Defendant claims that Plaintiff’s power of attorney was

rescinded on August 1, 2011, by John C. Richey, Sr. Therefore, the Defendant

contends that the Plaintiff is not the proper party to proceed with this appeal on behalf

of John C. Richey, Sr. The Defendant moves this court to remand this matter to the

trial court and, following an evidentiary hearing, to dismiss this appeal pursuant to

La.Code Civ.P. art. 2162.

We find that this matter should be remanded to the trial court because the

consideration of the merits of this motion requires evidence which cannot be received

by this court. Thus, in accordance with La.Code Civ.P. art. 2164, this court hereby

remands this matter in order for the trial court to hold a contradictory evidentiary

hearing regarding the Plaintiff’s right to proceed with this appeal. We further

pretermit discussion of the Defendant’s motion to dismiss appeal at this time.

MOTION TO REMAND GRANTED.