Summary
In Madison the plaintiff filed his first motion for new trial on August 26, 1994, which motion the trial court denied on September 27, 1994. Plaintiff again filed a motion for new trial on October 8, 1994, and the trial court granted this motion on November 18, 1994. Subsequently, plaintiff filed an appeal on November 28, 1995.
Summary of this case from Vernon v. South Cent. BellOpinion
No. 94-C-2651.
February 10, 1995.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 86-8889, STATE OF LOUISIANA, HONORABLE GERALD P. FEDOROFF, J.
John E. Ruiz, Jr., New Orleans, for plaintiff/respondent.
Mickey S. deLaup, Bernard, Cassisa Elliott, Metairie, for defendants/relators.
Before SCHOTT, C.J., and BARRY and LANDRIEU, JJ.
On the application of defendants we grant certiorari in order to consider the validity of a judgment granting plaintiff's second application for new trial. Plaintiff was given an opportunity to respond and declined to do so. The following chronology is pertinent:
August 17, 1994 Judgment rendered dismissing plaintiff's case.
August 26, 1994 Application for new trial by plaintiff.
September 27, 1994 Judgment denying plaintiff's application for new trial.
October 8, 1994 Application for new trial by plaintiff.
November 18, 1994 Judgment granting plaintiff's second application for new trial.
When the trial court denied plaintiff's first application for a new trial from the judgment dismissing his suit that judgment became final in the trial court. Nothing in the law authorized plaintiff to file his second application for a new trial and the trial court was without jurisdiction to entertain it at all much less grant it. La.C.C.P. arts. 1971 et seq.; Mitchell v. Louisiana Industrial Life Ins. Co., 204 La. 855, 16 So.2d 458, 459 (1943); Thibodeau v. Mayor, et al, 619 So.2d 595, 607 (La.App. 1 Cir. 1993); writ denied 629 So.2d 362; Correa v. HCA Health Services of Louisiana, Inc., 525 So.2d 1206, 1207 (La.App. 5 Cir. 1988).
Plaintiff's remedy was to take an appeal which he did on November 28, 1994.
Accordingly, the judgment of November 18, 1994, granting plaintiff's second application for a new trial is vacated and set aside.
JUDGMENT VACATED.
LANDRIEU, J., concurs in result.
I concur in the result.
As no appeal had been taken at the time the second application was filed, the trial court retained jurisdiction over the matter. Further, the law does not specifically prohibit a party from filing a second application, however, a trial court has no authority to grant a second new trial in the absence of an opponent's consent.