The Independent Weekly, LLC v. Lafayette City Marshall Brian Pope

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CM 16-160

THE INDEPENDENT WEEKLY, LLC

VERSUS

LAFAYETTE CITY MARSHAL BRIAN POPE

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2015-5737
HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

**********

D. KENT SAVOIE

JUDGE

**********

Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.

MOTION TO DISMISS UNLODGED APPEAL DENIED.

Stephen Gary McGoffin
Durio, McGoffin, Stagg & Ackermann, P.C.
Post Office Box 51308
Lafayette, LA 70505
(337) 233-0300
COUNSEL FOR PLAINTIFF/APPELLEE:
The Independent Weekly, LLC

Charles Kirkland Middleton
Attorney at Law
109 Stewart Street
Lafayette, LA 70501
(337) 234-0701
COUNSEL FOR DEFENDANT/APPELLANT:
Brian Pope, Lafayette City Marshal

John Kevin Stockstill
Attorney at Law
300 Stewart Street
Lafayette, La 70501
(337) 262-0203
COUNSEL FOR DEFENDANT/APPELLANT:
Brian Pope, Lafayette City Marshal

SAVOIE, Judge.

The plaintiff-appellee, The Independent, L.L.C., filed a motion seeking the

dismissal of the unlodged appeal taken by the defendant-appellant, Lafayette City

Marshal Brian Pope. For the reasons discussed below, we deny the motion.

From the statements made by the parties to this action in the filings with this

court, is appears that the instant action arises out of a public records request. The

appellant has taken a suspensive appeal from a judgment signed by the trial court

on January 14, 2016. The appellee contends in its motion to dismiss the appeal

that the appealed judgment is a partial judgment which has not been designated as

final and appealable pursuant to La.Code Civ.P. art. 1915(B). Therefore, the

appellee seeks the dismissal of the appeal.

In opposition to the motion to dismiss, the appellant argues in brief that the

judgment appealed is appealable as a matter of right pursuant to La.Code Civ.P. art.

3612. Furthermore, the appellant contends that the appellee acquiesced in the

suspensive appeal by filing an affidavit in the trial court.

In the appellee’s response to the appellant’s opposition, the appellee

contends that the actual judgment on the injunctive relief was signed by the trial

court on December 17, 2015, and that the appellant failed to file a timely

suspensive appeal from that judgment. Additionally, the appellee asserts that the

filing of the affidavit by its counsel did not serve as acquiescence in the suspensive

appeal.

Appellate courts are courts of record, and we must render
judgment based on the record on appeal. La.Code Civ.P. art. 2164;
Willis v. Letulle, 597 So.2d 456 (La.App. 1 Cir.1992). We may not
review evidence that is not in the record, and we may not receive new
evidence. Willis, 597 So.2d 456. Moreover, we may not even consider
exhibits filed in the record if those exhibits were not also filed into
evidence, unless we are otherwise authorized by law to do so (as in

summary judgment procedure). Id. (quoting State ex rel. Guste v.
Thompson, 532 So.2d 524, 527 n. 2 (La.App. 1 Cir.1988)).

Sutton’s Steel & Sup. v. BellSouth Mobility, 00-511, 00-898, p. 4 (La.App. 3 Cir.

12/13/00), 776 So.2d 589, 592, writ denied, 01-152 (La. 3/16/01), 787 So.2d 316.

Obvious from the arguments set forth by the appellee and the appellant is

that this court needs the entire appellate record to be able to know if the appeal of

the January 14, 2016 judgment is premature. For instance, appellee directs this

court’s attention to a purported judgment of December 17, 2015, but no judgment

bearing that date has been provided to this court. Additionally, since this court

does not have the original petition or any supplemental petition and cannot know

what judgments may have already been rendered in this suit, this court has no

record on which to base a finding as to what issues remain to be decided. Pursuant

to La.Code Civ.P. art. 1915, if a partial judgment has been rendered but not

designated as final and appealable for express reasons given, the trial court retains

jurisdiction to revise the partial judgment and, thereby, can designate that judgment

as final and immediately appealable; however, without the complete record, this

court cannot know whether such a judgment has been entered into the record.

Finally, this court notes that should the trial court proceed to issue a final judgment

adjudicating all the rights and liabilities and all the claims remaining between these

parties, any prematurity in the current appeal would be cured pursuant to Article

1915.

Therefore, this court denies the motion to dismiss the unlodged appeal at

appellee’s cost.

MOTION TO DISMISS UNLODGED APPEAL DENIED.

2