JORDAN v. GIBSON (2021)

Court of Appeal of Louisiana, Fourth Circuit.2021-12-15No. NO. 2021-CA-0473

Summary · law.co

Holding. The appeal is dismissed as untimely because Mr. Jordan failed to file his petition for appeal within sixty days of the expiration of the period to file a motion for a new trial.

Stanley Jordan sued the City of New Orleans and John H. Gibson in 2016 regarding the demolition of his house in 2012. After no substantive activity occurred in the case for nearly four years, the City filed a motion to dismiss for want of prosecution, which the trial court granted on April 6, 2020. Mr. Jordan was served with the dismissal order on April 15, 2020, but did not file an appeal until February 11, 2021—nearly ten months later.

The appellate court examined whether Mr. Jordan's appeal was timely filed. Under the applicable rules, he had seven days from service of the dismissal order to file a motion for a new trial, and if he failed to do so, he had an additional sixty days to file an appeal. Since Mr. Jordan did not file a timely motion for a new trial and his appeal petition came far beyond the sixty-day window, the court determined his appeal was untimely.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Timeliness of appeal from dismissal for want of prosecution
Calculation of appeal deadline under Louisiana Code of Civil Procedure
Effect of failure to timely file motion for new trial on appeal rights

Procedural posture

Mr. Jordan appealed a trial court order dismissing his suit for want of prosecution, filed nearly ten months after service of the dismissal order.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

This appeal arises from the demolition of appellant, Stanley Jordans house in 2012. Mr. Jordan now appeals the trial courts April 6, 2020 order dismissing his suit for want of prosecution. For the reasons to follow, we dismiss the appeal as untimely.

PROCEDURAL BACKGROUND

In January 2016, Mr. Jordan filed suit against John H. Gibson and appellee, City Hall Code Enforcement. In July and August 2016, defendants filed their respective answers to the petition.

On March 17, 2020, the City of New Orleans filed an “Ex Parte Motion to Dismiss for Want of Prosecution.” The City of New Orleans asserted no steps were taken toward the prosecution or defense of the case since August 12, 2016. On April 6, 2020, the trial court signed an order dismissing the suit. Mr. Jordan was personally served with the trial courts order on April 15, 2020.

On October 13, 2020, Mr. Jordan filed a motion to set trial. On January 4, 2021, the trial court scheduled a pre-trial conference for February 10, 2021. On February 11, 2021, Mr. Jordan filed a petition for appeal of the trial courts dismissal of the suit.

Thereafter, on April 6, 2021, Mr. Jordan filed his second motion to set the matter for trial. The trial court scheduled a status conference for May 21, 2021. On June 7, 2021, Mr. Jordan filed another petition for appeal.

TIMELINESS OF APPEAL

It is well settled that a devolutive appeal may only be taken within sixty days of either: (1) the expiration of the delay for applying for a new trial, if no application has been filed timely, or (2) the date of the mailing of the notice of the courts refusal to grant a timely filed application for a new trial or judgment notwithstanding the verdict. La. C.C.P. art. 2087.

In the instant case, Mr. Jordan was served with the trial courts order dismissing the appeal on April 15, 2020. Mr. Jordan had seven days from that date, exclusive of legal holidays, to file a motion for new trial. See La. C.C.P. art. 1974. In consideration that Mr. Jordan did not file a timely application for new trial, he had sixty days from the expiration of the delay for applying for a new trial to file his appeal. However, Mr. Jordan did not file a petition for appeal until February 11, 2021, well past the time delay for filing a devolutive appeal. Consequently, Mr. Jordans appeal is untimely and is hereby dismissed.

APPEAL DISMISSED

Judge Sandra Cabrina Jenkins

LEDET, J., CONCURS IN THE RESULT

BARTHOLOMEW-WOODS, J., CONCURS IN THE RESULT