174 So. 3d 145
La. Ct. App.2015Background
- Decedent Joseph L. McGinn III was involved in a March 17, 2011 motorcycle hit-and-run and was found dead the next morning; plaintiff Ambre McGinn sued for wrongful death.
- Original petition named CCCBA and Officer Lance Lavigne; service was accepted by another officer (Officer Williams) and no personal service on Lavigne is shown.
- Plaintiff moved for a preliminary default (Sept. 17, 2012); an amended petition was filed July 24, 2013 adding NOPD and others, but the record does not show the CCCBA or Lavigne were served with the amended petition.
- Default judgment entered Aug. 26, 2014 against CCCBA and Lavigne for $4,300,665 after a hearing; plaintiff had not reissued a preliminary default after the amended petition.
- Lavigne and the Louisiana Attorney General moved for a new trial arguing the default judgment was an absolute nullity due to defective service, failure to serve the preliminary default after the amended petition, and improper identification/service on the CCCBA.
- Trial court granted the motion for new trial (judgment signed Nov. 13, 2014). Plaintiff filed a motion for appeal on Dec. 22, 2014 (39 days after the judgment). The appellate court dismissed the appeal for lack of jurisdiction because the appeal could not be converted into a supervisory writ application (Rule 4-3) because it was filed beyond the 30-day period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court's grant of a new trial is immediately appealable | McGinn filed a motion of appeal and sought review of the new-trial judgment | Defendants contend the order is interlocutory and appeal must be by supervisory writ | Court: Grant of new trial is interlocutory and not immediately appealable; appeal must be converted to supervisory writ to be considered |
| Whether this Court should convert the untimely appeal into a supervisory writ application | McGinn argued jurisdiction under La. C.C.P. art. 2201 and Uniform Rule 4-3 | Defendants noted the appeal was filed after 30 days and conversion is discretionary | Court: Declined conversion because the motion for appeal was filed after the 30-day Rule 4-3 window |
| Whether the new-trial judgment was timely challenged | McGinn asserted appeal was timely (noting service/email dates) | Defendants pointed to the filed date (Dec. 22, 2014) which was 39 days after judgment | Court: Filing date controls; 39 days exceeded the 30-day supervisory-writ period, so appeal cannot be converted |
| Whether interlocutory judgment notice triggered the Rule 4-3 period differently | McGinn argued notice or mailing might alter the start date | Defendants relied on rule and La. C.C.Pr. art. 1914 that rendition in open court constitutes notice | Court: Rendition in open court constitutes notice; even using notice by mail, deadline would have passed by Dec. 19, 2014 |
Key Cases Cited
- Mandina, Inc. v. O’Brien, 156 So.3d 99 (La. App. 4 Cir. 2013) (discusses conversion of interlocutory appeal to supervisory writ and two-part test)
- Delahoussaye v. Tulane Univ. Hosp. & Clinic, 155 So.3d 560 (La. App. 4 Cir. 2013) (conversion appropriate only if appeal filed within 30 days and immediate decision needed)
- Ramirez v. Evonir, LLC, 165 So.3d 260 (La. App. 4 Cir. 2015) (procedural vehicle for interlocutory orders)
- Francois v. Gibeault, 47 So.3d 998 (La. App. 4 Cir. 2010) (interlocutory appeal procedure)
- Barham, Warner & Bellamy, L.L.C. v. Strategic Alliance Partners, L.L.C., 40 So.3d 1149 (La. App. 4 Cir. 2010) (conversion denied where appeal filed after 30 days)
- Jones v. Next Generation Homes, LLC, 76 So.3d 1238 (La. App. 4 Cir. 2011) (examples of conversion when appeal within 30 days)
- Gullatt v. Allstate Ins. Co., 61 So.3d 731 (La. App. 5 Cir. 2011) (procedural rules on supervisory writ timing)
- Roba, Inc. v. Courtney, 47 So.3d 509 (La. App. 1 Cir. 2010) (conversion practice)
- Rain CII Carbon, LLC v. Turner Indus. Grp., LLC, 161 So.3d 688 (La. App. 3 Cir. 2014) (conversion limited to filings within rule period)
- Caldwell Parish Sch. Bd. v. Louisiana Mach. Co., 110 So.3d 993 (La. 2013) (rendition in open court constitutes notice)