Summary
dismissing appeal and observing that "[o]nce a final appealable judgment is rendered, a new appeal may be filed with this Court"
Summary of this case from Ohle v. UhaltOpinion
No. 2015–CA–0962.
02-17-2016
Cassandra SMITH v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
William R. Mustian, III, Stanga & Mustian, APLC, Metairie, LA, Counsel for Plaintiff/Appellant. Jeffrey A. Renshaw, Assistant Attorney General, Kate Campbell Casanova, Assistant Attorney General, LA Dept. of Justice, Lit. Div., New Orleans, LA, Counsel for Defendant/Appellee.
William R. Mustian, III, Stanga & Mustian, APLC, Metairie, LA, Counsel for Plaintiff/Appellant.
Jeffrey A. Renshaw, Assistant Attorney General, Kate Campbell Casanova, Assistant Attorney General, LA Dept. of Justice, Lit. Div., New Orleans, LA, Counsel for Defendant/Appellee.
Opinion
DANIEL L. DYSART, Judge.
Cassandra Smith timely appealed from a summary judgment rendered on June 16, 2015. Upon inspection, this Court noted that the judgment from which the appeal is taken does not contain the proper decretal language to consider it a final appealable judgment. Because we cannot exercise our appellate jurisdiction unless it has been properly invoked, this Court issued, sua sponte, a rule ordering the parties to show cause why this appeal should not be dismissed.
“A final judgment shall be identified as such by appropriate language.” La.Code Civ. Proc. art.1918. “A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.”
In response to the show cause order, appellant, Cassandra Smith, and appellee, the State of Louisiana, Department of Transportation and Development, individually informed the Court that the parties agreed to submit an amended judgment to the trial court, and would supplement the record with the amended judgment once signed. However, we cannot allow the record to be supplemented as such, despite the parties' agreement to do so, as an amended judgment is an entirely new judgment, which must be appealed in due course according to the rules of procedure.
Thus, because the appeal as lodged does not contain a valid final judgment, this Court lacks jurisdiction to consider the merits of the appeal. Accordingly, the appeal is dismissed, without prejudice, and the matter is remanded to the trial court for further proceedings. Once a final appealable judgment is rendered, a new appeal may be filed with this Court.
APPEAL DISMISSED, WITHOUT PREJUDICE; REMANDED
LOBRANO, J., concurs with reasons.
LOBRANO, J., concurs with reasons.
I agree with the majority's opinion that the appeal should be dismissed because the June 4, 2015 judgment does not contain the proper decretal language to consider it a final appealable judgment. However, I note that the trial court's jurisdiction was divested, and the jurisdiction of this Court attached, on the granting of the order of appeal. La. C.C.P. art. 2088. Although the trial court may “[c]orrect any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132,” the trial court lacked authority to render the January 20, 2016 Amended Judgment after it was divested of jurisdiction. La. C.C.P. art. 2088(A)(4). Moreover, La. C.C.P. art. 1951 allows a trial court to amend a final judgment, and since this Court has found that the June 4, 2015 judgment is not a final judgment, the January 20, 2016 Amended Judgment, seeking to amend the prior judgment, is without effect. Upon remand, the trial court may render a new judgment to include proper decretal language.
Delta Staff Leasing, LLC v. South Coast Solar, LLC, 14–1328 (La.App. 4 Cir. 9/23/15), 176 So.3d 668; Bd. of Supervisors of La. State Univ. and Agric. and Mech. Coll. v. Mid City Holdings, L.L.C, 14–0506, pp. 2–3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908. This Court cannot determine the merits of an appeal until our jurisdiction is properly invoked by a valid final judgment. See Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Technologies, Inc., 10–477, p. 12 (La.App. 5 Cir. 10/29/10), 52 So.3d 909, 915.