Opinion
2015 CA 1327
06-03-2016
JODI PROPERTIES, LLC v. TITUS COCHRAN AND PHYLLIS COCHRAN
Frank W. Lagarde, Jr. Melanie M. Licciardi Metairie, Louisiana Attorneys for Plaintiff/Appellee Jodi Properties, LLC Charles E. Brumfield, Jr. Hammond, Louisiana Attorney for Defendants/Appellees Titus Cochran and Phyllis Cochran
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TANGIPAHOA STATE OF LOUISIANA
DOCKET NUMBER 2014-2878 HONORABLE ROBERT H. MORRISON, III, JUDGE Frank W. Lagarde, Jr.
Melanie M. Licciardi
Metairie, Louisiana Attorneys for Plaintiff/Appellee
Jodi Properties, LLC Charles E. Brumfield, Jr.
Hammond, Louisiana Attorney for Defendants/Appellees
Titus Cochran and Phyllis Cochran BEFORE: McDONALD, McCLENDON, and THE RIOT, JJ. McDONALD, J.
In this case, landowners appeal from a preliminary injunction ordering them to restore the natural flow of drainage from their neighbor's property. The neighbor seek sanctions for its defense of an untimely appeal. We dismiss both the appeal and the motion for sanctions as untimely.
FACTUAL AND PROCEDURAL BACKGROUND
JODI Properties, LLC (JODI) owns property in Folsom, Louisiana. Titus and Phyllis Cochran own property contiguous to JODI's property. In September 2014, JODI filed a petition for preliminary and permanent injunction against the Cochrans, alleging the Cochrans obstructed the natural drainage from JODI's property, causing extensive flooding on JODI's property. At a hearing on October 27, 2014, the trial court granted the parties ten days to file affidavits, indicated it would decide the matter on that basis, and took the matter under advisement. On November 12, 2014, the trial court signed an order granting the preliminary injunction and ordering the Cochrans "to either remove the current impediments erected on their property so as to restore the natural flow of water [there over] from the property of [JODI], or to construct an alternate drainage relief over their property, such that the amount of flow of natural drainage from [JODI's] property is restored to its prior level ... ."
On March 16, 2015, the Cochrans filed a motion for suspensive appeal from the November 12, 2014 order. Although the motion was filed almost four months after the order was signed, the Cochrans alleged that their motion for appeal was timely. They claimed that appeal delays had never begun to run, because the clerk of court had sent notice of the November 12, 2014 order to their attorney at an incorrect address and improperly sent notice to them personally. On March 19, 2015, the trial court signed an order allowing the Cochrans to file a writ of certiorari, rather than an appeal, within 30 days. The Cochrans filed a writ application, seeking review of the November 12, 2014 order, as well as a stay. This court denied the writ and the stay. JODI Properties, LLC v. Titus Cochran and Phyllis Cochran, 15-0625 (La. App. 1 Cir. 4/23/15) (unpublished).
On May 18, 2015, the Cochrans filed a "renewed" motion for appeal from the November 12, 2014 order, which the trial court granted on the same day. This Court later issued an order noting the Cochrans' May 18 motion appeared to be untimely and directed the parties to show cause by briefs why the Cochrans' appeal should or should not be dismissed. In response, JODI filed an exception of prescription/peremption and a motion for LSA-C.C.P. art. 863 sanctions, claiming that both of the Cochrans' appeals were untimely under LSA-C.C.P. art. 3612. The Cochrans responded by again arguing that, due to lack of proper notice, their appeal was timely because appeal delays had not run. They claim that LSA-C.C.P. art. 1913 requires that notice of a final judgment be mailed to counsel of record for each party, and because the notice here was mailed to their attorney at an incorrect address, the appeal delays did not begin to run. The rule to show cause was referred to this panel for decision.
DISCUSSION
An appeal may be taken as a matter of right from an order or judgment relating to a preliminary injunction. LSA-C.C.P. art. 3612(B). This appeal must be taken, and required bond must be furnished, within 15 days from the date of the order or judgment. LSA-C.C.P. art. 3612(C). The 15-day delay begins to run from the date of the order, not the mailing of notice of the order, because it is LSA-C.C.P. art. 3612, not LSA-C.C.P. art. 1913 that controls this situation. See First Guaranty Bank v. Perilloux, 498 So.2d 239, 240 (La. App. 1 Cir. 1986); Zulu v. Washington, 487 So.2d 1248, 1249 (La. App. 1 Cir. 1986).
The Cochrans filed both motions for appeal from the November 12, 2014 preliminary injunction order well after the 15-day appeal delays expired. Accordingly, this appeal is untimely and will be dismissed without consideration of the merits. And, because we dismiss the appeal, we need not consider JODI's exception of prescription/peremption.
SANCTIONS
On appeal, JODI seeks an award of attorney fees and costs under LSA-C.C.P. art. 863(D) for its defense of this "clearly time-barred matter." An appellate court does not have authority to impose sanctions under LSA-C.C.P. art. 863. Hampton v. Greenfield, 618 So.2d 859, 862 (La. 1993). An appellate court's authority to regulate conduct before it is governed by LSA-C.C.P. art. 2164, which provides, in pertinent part, that an appellate court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable. Also see Uniform Rules, Courts of Appeal, Rule 2-19.
Generally, an appellee may claim damages for frivolous appeal only if he answers the appeal or files an independent appeal. See LSA-C.C.P. art. 2133(A); National Equity Life Ins. Co. v. Eicher, 93-0611 (La. App. 1 Cir. 3/11/94), 633 So.2d 1351, 1356; Carr v. Gibbens, 15-0701 (La. App. 1 Cir. 9/18/15), 2015 WL 5515906 (unpublished). An answer to appeal must be filed no later than 15 days after the return day or the lodging of the record, whichever is later. LSA-C.C.P. art. 2133(A). In this case, JODI did not file an answer to the Cochrans' appeal nor did JODI file an independent appeal. Rather, JODI asserted its claim for sanctions in a motion to this Court. Even assuming arguendo that JODI's motion was equivalent to an answer to the appeal, JODI did not file its motion for sanctions within the time delays for answering the Cochrans' appeal. The return date for this appeal was July 22, 2015, and the record was lodged on August 28, 2015. JODI's motion was filed on September 30, 2015, beyond the time delays of LSA-C.C.P. art. 2133(A). Thus, we dismiss JODI's motion for sanctions without consideration of the merits. See National Equity Life Ins. Co., 633 So.2d at 1356; Carr, 2015 WL 5515906 at p. 3.
CONCLUSION
For the foregoing reasons, Titus and Phyllis Cochran's appeal from the November 12, 2014 order granting the preliminary injunction is dismissed. Further, JODI Properties, LLC's motion for sanctions is dismissed. Costs of this appeal are assessed to Titus and Phyllis Cochran.
APPEAL DISMISSED; MOTION DISMISSED.