136 So. 3d 313
La. Ct. App.2014Background
- 9029 Jefferson Highway, L.L.C. sued to repair a leaking roof and obtained a default judgment for $15,000 on April 16, 2010.
- November 11, 2010, the members of S & D Roofing, L.L.C. filed an Affidavit of Dissolution, exposing Shane Dufrene and David M. Cain to personal liability.
- July 8, 2011, 9029 Jefferson filed a seizure of personal property; August 18, 2011, defendants moved for a new trial arguing prematurity and lack of notice.
- February 2, 2012, the trial court dismissed seizure as premature and continued the Motion for New Trial without date; the signed judgment stated the Motion for New Trial was dismissed as premature.
- Notice of the default judgment issued June 11, 2012, but there was no return of service in the record; service on Dufrene occurred June 14, 2012 and on Cain on July 18, 2012.
- July 20, 2012, defendants filed a Motion to Reset the Motion for New Trial; the trial court denied the motion as untimely on November 15, 2012, and appeal was granted on that date.
- June 25, 2013, the trial court issued a nunc pro tunc minute entry inconsistently stating the Motion for New Trial was dismissed; the court sua sponte struck this entry on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the Motion for New Trial under Article 4907 | 9029 Jefferson argues the motion was not untimely. | Dufrene/Cain contend the motion was premature/untimely. | The motion was neither premature nor untimely; remand for merits. |
| Effect of inconsistent nunc pro tunc entry | Transcript shows continued without date, not dismissal. | Judgment signed contrary to open-court ruling. | Nunc pro tunc entry stricken; record reflects proper ruling. |
| Relation of Motion to Reset to a new trial motion | Reset pleading should be treated as a motion for new trial. | Reset is not a timely new-trial request. | Treat as motion for new trial; merits considered on remand. |
Key Cases Cited
- Thompson v. Bullock, 236 So.2d 892 (La.App. 3 Cir.1970) (prematurity not dispositive; timing standards apply to new trials)
- Reynolds v. Brown, 84 So.3d 655 (La.App. 5 Cir. 2011) (courts should consider substance over caption in pleadings)
- Calhoun v. Deslattes, 648 So.2d 993 (La.App. 5 Cir. 1994) (public policy favors allowing day in court on post-judgment motions)
- Johnson v. E. Carroll Det. Ctr., 658 So.2d 724 (La.App. 2 Cir. 1995) (actual notice alone not enough to trigger new-trial delays)
- Wood v. Beard, 268 So.2d 152 (La.App. 3 Cir.1972) (motion to reopen before judgment can be treated as a new-trial motion)