Opinion
2021 CA 0943
02-25-2022
ELIZABETH B. DOWNEY v. KENNETH A. DOWNEY
HOWARD P. ELLIOTT, JR. BATON ROUGE, LOUISIANA ATTORNEY FOR PLAINTIFF/APPELLEE ELIZABETH B. DOWNEY MARK D. PLAISANCE MARCUS J. PLAISANCE PRAIRIEVILLE, LOUISIANA ATTORNEYS FOR DEFENDANT/APPELLANT KENNETH A. DOWNEY
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LIVINGSTON STATE OF LOUISIANA DOCKET NUMBER 158930, DIVISION "K" HONORABLE JEFFREY T. OGLESBEE, JUDGE
HOWARD P. ELLIOTT, JR. BATON ROUGE, LOUISIANA
ATTORNEY FOR PLAINTIFF/APPELLEE ELIZABETH B. DOWNEY
MARK D. PLAISANCE MARCUS J. PLAISANCE PRAIRIEVILLE, LOUISIANA
ATTORNEYS FOR DEFENDANT/APPELLANT KENNETH A. DOWNEY
BEFORE: McDONALD, LANIER, AND WOLFE, JJ.
1
MCDONALD, J.
This is an appeal from a judgment awarding reimbursement claims to the spouses in a community property partition. After review, we dismiss the appeal.
FACTS
Kenneth A. Downey appeals a trial court judgment that awarded him $5, 000.00 in reimbursement claims in the community property partition between himself and his ex-wife, Elizabeth B. Downey. That judgment was signed on April 8, 2021, and issued by the trial court on April 19, 2021. On April 28, 2021, Ms. Downey filed a motion to amend the judgment, asserting there were errors in the computation of the partition. A hearing on the motion to amend the judgment was set for June 2, 2021. Mr. Downey filed a motion for appeal on May 20, 2021. The motion to amend the judgment was left outstanding.
MOTION TO DISMISS APPEAL
Ms. Downey filed a motion to dismiss the appeal. She maintains that the trial court judgment erred in incorrectly stating liabilities of $20, 010.96 to Ford Motor Credit as $10, 005.48 and $1, 880.84 to Sears as $940.42, and assigned Ms. Downey's one-half of the actual community debts to her without assigning the other half of each respective indebtedness to Mr. Downey. She raised this error in computation in her motion to amend the judgment. Ms. Downey maintains that due to the outstanding motion to amend the judgment, the trial court's judgment is not a final, appealable judgment. Mr. Downey responded, asking that the motion be denied, and maintaining that if Ms. Downey believed the trial court improperly assessed the community liabilities, her relief was by grounds other than a motion to dismiss the appeal. He asserts that the judgment properly partitions the community and contains the proper decretal language. 2
RULE TO SHOW CAUSE
On September 27, 2021 this court, ex proprio motu, issued a rule to show cause order, noting that it appears that the appeal is premature as there was no ruling on the motion to amend the judgment. The parties were ordered to show cause by briefs why the appeal should not be dismissed as premature.
In his response to the show cause order, Mr. Downey maintains that Ms. Downey's motion to amend the judgment did not suspend or delay the time for taking an appeal and did not cause the order of appeal to be premature. He asserts that a motion to amend a judgment is not one of the motions listed in La. C.C.P. art. 2087which serves to suspend the delay for taking an appeal or causes an order for appeal to be premature. He notes that Ms. Downey did not file a motion for judgment notwithstanding the verdict or a motion for new trial. 3
A trial court is divested of its jurisdiction over all matters in cases that are reviewable under the appeal when the order of appeal is granted. La. C.C.P. art. 2088. The jurisdiction of the appellate court attaches on the granting of the order of appeal; the order of appeal is premature if it is granted before the trial court disposes of all timely filed motions for new trial. La. C.C.P. art. 2088(A) and La. C.C.P. art. 2087(D). Our courts have recognized that a pleading, regardless of its caption, constitutes a motion for new trial if it requests a substantive modification of the judgment and is filed within the delays applicable to a motion for new trial. Labarre v. Occidental Chemical Company and Texas Brine Company, LLC, 2017-1370 (La.App. 1 Cir. 6/4/18), 251 So.3d 1092, 1096, n. 5, writ denied, 2018-1380 (La. 12/3/18), 257 So.3d 196; see also Groome v. Carr, 2020-0019 (La.App. 4 Cir. 4/1/20), ___So.3d___, 2020 WL 2534019, *1 (motion to set aside and/or amend a judgment of dismissal filed prior to appeal being sought, within the delay for filing a motion for new trial, and court concluded appeal was premature as the motion to amend sought to alter the substance of the judgment).
Ms. Downey filed a motion to amend the April 8, 2021 judgment pursuant to La. C.C.P. art. 1951 within the delays for applying for a new trial. Although Ms. Downey indicated that she requested the trial court correct an error in computation, we find that the remedy Ms. Downey seeks would be a substantive modification of the judgment. Accordingly, we construe the motion to amend as a motion for new 4 trial, which motion remains outstanding and has not yet been acted on by the trial court. Prematurity created by the existence of an outstanding motion for new trial is a jurisdictional defect, which cannot be waived. See Lane v. Lane, 2015-1572 (La.App. 1 Cir. 2/26/16), 2016 WL 770832, *2 (unpublished). Customarily, this court has found that the failure to act on a pending motion for new trial retards the transfer of jurisdiction from the district court to the court of appeal. Yohn v. Brandon, 2001-1896 (La.App. 1 Cir. 9/27/02), 835 So.2d 580, 586, writ denied, 2002-2592 (La. 12/13/02), 831 So.2d 989; Petitto v. McMichael, 552 So.2d 790, 792 (La.App. 1 Cir. 1989). Moreover, the denial of a motion for new trial cannot be inferred from the granting of an appeal. See Merritt v. Dixon, 97-0781 (La.App. 4 Cir. 5/28/97), 695 So.2d 1095, 1096. Cf Chauvin v. Chauvin, 2010-1055 (La.App. 1 Cir. 10/29/10), 49 So.3d 565, 568 n. 1 (where district court divested of jurisdiction if order of appeal granted prior to motion for new trial being filed).
Because this court's appellate jurisdiction has not attached, we dismiss the appeal on the basis of this court's show cause order based upon the outstanding motion to amend. The motion to dismiss the appeal is denied as moot. The costs of this appeal are assessed against Elizabeth B. Downey.
While this court has discretion to convert appeals to applications for supervisory writs, see Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So.2d 34, 39, it may only do so if the appeal would have been timely had it been filed as a supervisory writ applications. See Succession of Jaga, 2016-1291 (La.App. 1 Cir. 9/15/17), 227 So.3d 325, 328 n.2. A party intending to apply to this court for a supervisory writ shall give notice of such intention by requesting a return date to be set by the trial court, which shall not exceed thirty days form the date of the notice of judgment. See Uniform Rules-Courts of Appeal, Rules 4-2 and 4-3. Here, the notice of judgment was issued on April 19, 2021, but the appeal was not sought until May 20, 2021. Accordingly, given that the appeal was not sought within the supervisory writ delays, we cannot consider this appeal under this court's supervisory jurisdiction.
APPEAL DISMISSED. 5
A. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.
B. When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in Paragraph A of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.
C. When one or more parties file motions for new trial or for judgment notwithstanding the verdict, the delay periods specified herein shall commence for all parties at the time they commence for the party whose motion is last to be acted upon by the trial court.
D. An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions.
E. The time within which to take a devolutive appeal under the provisions of this Article is interrupted for all parties upon the filing of a notice of removal in a district court of the United States, pursuant to the provisions of 28 U.S.C. 1446, and commences anew on the date the proceeding is remanded.
On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment or to correct deficiencies in the decretal language or errors of calculation. The judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received. A final judgment may not be amended under this Article to change its substance.