Cabral v. CIB Investments, Inc.

469 So. 2d 976 | La. | 1985

LEMMON, Justice,

concurring.

Prior to the adoption of Rule 2-8.6 of the Uniform Rules of the Courts of Appeal, when the appellant missed filing his brief by the deadline provided in the rules, he usually waited until the day of argument to file a brief, at great inconvenience to both the court and the appellee. Now, when the appellant fails to file a brief timely, the court may notify the appellant that his appeal will be dismissed as abandoned if the brief is not filed within thirty days. The present rule thus provides a reasonable solution to the problem of late brief filing, while protecting a litigant from having his appeal dismissed because his attorney was not diligent.¹

In the present case, when the deadline passed without appellant’s having filed a brief, appellee filed a motion requesting the court to dismiss the appeal under Rule 2-8.6. The court’s December 11, 1984 order did not notify appellant to file a brief within thirty days under penalty of dismissal, but instead ordered appellant to “show cause in a brief to be filed on or before January 4, 1985, why this appeal should not be dismissed”.² Appellant’s motion for extension of time was mailed on January 4 and reached the court on January 8. The court eventually dismissed the appeal, and appellant sought review by this court.

Reinstatement of the appeal by this court does not condone the dilatory conduct by appellant’s counsel. Nevertheless, appeals are favored in law, and dismissals based on abandonment will be approved only if there is scrupulous compliance with reasonable court rules designed to promote judicial efficiency. The court’s order in this case (1) did not notify appellant that “the appeal shall be dismissed 30 days thereafter unless a brief is filed in the meantime” and (2) gave appellant only twenty-four days to comply with the order. While I might be willing to consider the order as substantial compliance with the rule, the combination of the two deficiencies in the court’s notice dictates reinstatement of the appeal.³

1 . Other sanctions are also available to promote timely filing of briefs. See Rule 2-12.12.

2 . The order did not refer to Rule 2-8.6.

3 . The far preferable procedure, of course, is for the notice (1) to inform the appellant that the appeal shall be dismissed as abandoned unless the brief is filed within thirty days, as provided in Rule 2-8.6, and (2) to give the full thirty days provided in the rule.