State of Louisiana in the Interest of B. R. C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
JAC 16-273

STATE OF LOUISIANA

IN THE INTEREST OF

B. R. C.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. JC-2014210
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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D. KENT SAVOIE

JUDGE

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

LIMITED REMAND ORDERED.

Lloyd Dangerfield
Attorney at Law
703 E. University Ave.
Lafayette, LA 70503
(337) 232-7041
COUNSEL FOR DEFENDANT/APPELLANT:
J. W. (Father)

Keith A. Stutes
Lafayette Parish DA
Post Office Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Leah Antoinette Beard
825 Kaliste Saloom Road
Brandywine Bldg 3, Room 150
Lafayette, LA 70508
(337) 262-1555
COUNSEL FOR APPELLEE:
Department of Social Services

Diane Elaine Cote
825 Kaliste Saloom Road
Brandywine III, Room 150
Lafayette, LA 70508
(337) 262-5913
COUNSEL FOR APPELLEE:
State of Louisiana, through the Deptpartment of Children & Family
Services

Franchesca L. Hamilton-Acker
Acadiana Legal Service Corp.
Post Office Box 4823
Lafayette, LA 70502-4823
(337) 237-4320
COUNSEL FOR APPELLEES:
B. R. C.
State of Louisiana

Laura Melancon
600 Jefferson Street
Suite 902
Lafayette, LA 70501
(337) 232-9345
COUNSEL FOR APPELLEE:
B. C.

Kimberly Latigue Arvie
Acadiana Legal Services
1020 Surrey St.
Lafayette, LA 70501
(337) 237-4320
COUNSEL FOR APPELLEE:
B. R. C.

SAVOIE, Judge.

Upon the lodging of the record in this appeal, this court issued, on its own

motion, a rule for the appellant to show cause, by brief only, why the appeal should

not be dismissed as untimely, citing La.Ch.Code art. 332. The appellant has filed a

brief in response to the rule asserting that the appeal is timely. For the reasons

discussed below, we remand this appeal for the limited purpose of having the trial

court conduct an evidentiary hearing and render a ruling as to the correct date on

which notice of judgment was mailed by the Office of Clerk of Court for the

Fifteenth Judicial District Court, Parish of Lafayette.

The record filed in this court indicates that the trial court signed its final

judgment on February 8, 2016. The certificate of the district court’s clerk’s office

indicates that the notice of judgment was mailed to the parties and/or their

attorneys of record on February 8, 2016. No motion for new trial was filed in this

suit. Appellant filed his Notice of Suspensive Appeal on February 25, 2016. The

order granting the appeal was signed by the trial court on February 29, 2016.

As this case is subject to the appeal delays set forth in La.Ch.Code art. 332,

this court issued its rule for the appellant to show cause why the appeal should not

be dismissed as untimely because more than fifteen days passed between the date

the clerk’s office indicates that notice of judgment was mailed and the date that the

appellant’s Notice of Suspensive Appeal was filed.

The appellant contends that the appeal is timely filed. In the brief filed in

this court, the appellant points out that the postage meter stamp of the envelope

which contained his notice of judgment bears the date of February 10, 2016.

Therefore, he contends that his motion for appeal was timely filed within fifteen

days of the mailing of the notice of judgment.

In Ventre v. Pacific Indem. Co., 391 So.2d 95 (La.App. 3 Cir. 1980), the

appellant filed a motion to remand her appeal in order to correct the record. This

court notes in its opinion that, on the face of the record, the appeal was filed

untimely. However, in granting the motion and ordering a remand of the case, this

court observed:

The plaintiff-appellant has filed this motion to remand for the
purpose of determining if notice of judgment was actually sent. The
appellant contends that the record is in error and no notice of
judgment was ever sent as required by LSA-C.C.P. 1913. The
appellant has attached to his motion to remand the affidavit of Dolores
A. Couvillion, the deputy clerk of court who prepared the record in
the instant matter. The affiant states that a certificate of notice of
judgment was not in the record and that she prepared a back-dated
notice which was filed in the record. While an appellate court cannot
accept such evidence for a decision on the merits, it may be
considered in determining whether or not the case should be remanded
to afford the appellant an opportunity to prove that the record is in
error in this respect.

The request for such a correction under LSA-R.S.C.C.P. Article
2132 could have been made to the trial court as the appeal did not
divest it of jurisdiction in this matter. LSA-C.C.P. Article 2088(4).
However, an appellate court may also remand a case to the trial court
for the purpose of correcting an error in the record. A clerk's
certificate is not conclusively presumed to be correct and may be
corrected on proper showing. Soileau v. Tri-State Mutual Insurance
Co., 206 So.2d 716 (La.App. 3 Cir. 1967).

In this interest of justice, we have decided to remand this case
to the trial court for the taking of evidence and a decision by the trial
judge on the factual issue of whether or not the clerk of court actually
mailed the notice in compliance with LSA-C.C.P. Article 1913. After
the trial court has ruled on this issue, the record will be returned to
this court for further proceedings herein.

391 So.2d at 95-6.

Similar to the facts presented in Ventre, this court cannot accept the

photocopy of an envelope as evidence to be used on a decision on the merits.

However, we can consider this photocopy for the purpose of deciding whether

justice requires a remand of this case for the conducting of a hearing before the

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trial court in order to obtain a ruling from the trial court on the question as to the

exact date on which notice of judgment was mailed. Thus, as this court did in

Ventre, we grant a limited remand of this appeal and order that the trial court

conduct an evidentiary hearing and render a decision as to the actual date on which

notice of judgment was mailed to the appellant’s counsel of record by no later than

July 25, 2016. Following this hearing and decision by the trial court, we order the

Office of the Clerk of Court for the Fifteenth Judicial District Court, Parish of

Lafayette, to supplement the record in this appeal, in duplicate, with the transcript

of the hearing, any evidence submitted at that hearing, and any pleadings filed and

the judgment rendered subsequent to this remand.

LIMITED REMAND ORDERED.

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