Lifecare Hospitals, Inc. v. B & W Quality Growers, Inc.
Lifecare Hospitals, Inc. v. B & W Quality Growers, Inc.
Opinion of the Court
J¿ORDER
Appellee, Lifecare Hospitals, Inc., filed a motion to dismiss the above-captioned appeal on the basis that the appellant failed to obtain an order of appeal within the delays allowed under the provisions of La. C.C.P. art. 2121. This failure resulted when the appellant failed to attach an order of appeal to its motion for appeal that was timely filed with the clerk of the First Judicial District Court. Although appellant, B & W Quality Growers, Inc., supplied the missing order on March 17, 2004, the appeal delays expired in February 2004. Thus, the question presented by this motion to dismiss is whether the timely filing of the motion for appeal without an accompanying order was sufficient to preserve B <& W’s appeal.
Under the provisions of La. C.C.P. art. 2121, an appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment. Such an order may be granted on oral motion in open court, on written motion, or on petition. Although the wording of the article lends support to the argument that dismissal would be appropriate if an order of appeal was not obtained until after the appeal delays had expired, the jurisprudence establishes that such is not always the case. In Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183 (La. 1981), a motion for an appeal was timely filed, but the order of appeal was not signed until after appellate delays would have expired. The defendants moved for dismissal on the ground that the order was not timely, the court of appeal dismissed the appeal, but the supreme court reversed. The court of appeal had relied on the language of La. C.C.P. art. 2121, holding that an order of appeal must be obtained, i.e., signed, within the delay allowed for appeal. However, the supreme court stated that the signing of an order of devolu-tive appeal “has become a mere formality.” The supreme court pointed out that the former provisions of La. C.C.P. art. 2124 required that security be furnished for a devolutive appeal, and that Article 2121 required that the order of appeal fix the amount of the appeal bond to be furnished. Thus, because the cost of the bond had to be furnished within the delays provided for taking an appeal, the order also had to be signed during that period. However, because Article 2124 was amended to eliminate security for devolutive appeals, and the trial court was no longer required to fix an appeal bond, the signing of a devolu-tive appeal order “has been reduced to a mere formality.”
In support of the motion to dismiss the instant appeal, appellee cites our decision in Hough v. Brookshire Grocery Co., 24590-CA (La.App.2d Cir.5/5/93), 618 So.2d 587; writ denied, 93-1997 (La.11/5/93), 629 So.2d 346. In Hough, we dismissed an appeal because both the motion and order for appeal were delivered to a judge’s receptionist, but an order of appeal was neither signed, nor filed with the clerk of court until after the delays for taking a devolutive appeal had run. We discussed Traigle, supra, in Hough, noting that the supreme court in Traigle explicitly relied on La. C.C.P. art. 253 which requires that all pleadings filed in an action be delivered to the clerk of court, but we concluded that a judge’s receptionist could not be equated to the clerk of court who was a public official required by law to retain possession of motion and order or appeal and to either obtain the judge’s signature on the appeal order or sign it himself.
In the instant case, unlike Hough, the appellant timely filed a motion for appeal with the clerk of court. Thus, the appellant clearly manifested an intent to seek appellate review of the trial court’s decision, the intent was formally manifested through the filing of the motion for appeal, and the filing was timely. Furthermore, as pointed out by the supreme court in Traigle, supra, after the amendment to La. C.C.P. art. 2124, the signing of an order of devolutive appeal has become “a mere formality.” Accordingly, we distinguish Hough, supra, and hold that the inadvertent failure to attach an order to the motion for appeal herein will not defeat appellant’s right to appellate review.
While there is no question that an order of appeal should be filed along with a motion for appeal, as required under Rule 9.8(C)' of the Louisiana District Court Rules, and as practiced in the courts of this state, the missing order in this case was supplied after the omission was called to appellant’s attention. In the interim, the motion apparently remained in the clerk of court’s office for approximately two months. We observe that not uncommonly, when a pro se litigant makes a written request for an appeal, or perhaps simply makes a filing that may be interpreted as a request for an appeal, a trial judge may simply write an order on the filing granting an appeal. Presumably, the clerk of a district court could do the same pursuant to La. C.C.P. art. 282.
For the reasons set forth above, appel-lee’s motion to dismiss is hereby denied.
Reference
- Full Case Name
- LIFECARE HOSPITALS, INC. v. B & W QUALITY GROWERS, INC.
- Cited By
- 4 cases
- Status
- Published