Smith v. Long
Smith v. Long
Opinion of the Court
11 Eleanor A. Smith filed suit against Richard Long, asserting that a tree on Long’s property fell onto a fence on Smith’s property and that Long had refused to repair the damages. Smith sought recovery of all costs involved in replacing the fence. Long then filed an answer asserting that the fence belonged to Long, not Smith. On the day of trial, June 15, 2006, Long was not present. The trial court noted that notice of trial had been mailed to Long by certified mail to the address that he gave in his answer, but was returned unclaimed. Smith then put on,.her evidence, including her testimony as well as several exhibits, and the trial court awarded Smith $2,008.70 plus interest and costs. This appeal followed.
Long has filed a one-page letter which this court has accepted as his appellate brief. The letter states that he is appealing for the following reasons (verbatim):
1. I didn’t receive written document to appear in court.
2. The said property (fence) was owned by Richard Long and both parties share the fence together.
3. The tree is on the edge of the property line and covers both properties.
4. The storm blew the tree down.
We affirm in all respects.
With respect to Long’s assertion that he did not receive notice of trial, we observe, as previously noted, that the trial court indicated notice of trial was mailed
See also Williams v. Doctors’ Hospital of Shreveport, Inc., 39,609 (La.App.2d Cir.5/11/05), 902 So.2d 1187, in which this court held that the sufficiency of service of a motion for summary judgment on a nonresident may not be raised for the first time on appeal, but must be raised in a suit to annul the judgment.
As in Decca, supra, and Williams, supra, we now hold that the question of sufficiency of notice of trial herein may not be raised for the first time in this appeal, but would have to be raised in a suit to annul the judgment. We observe that while adequate notice of trial is a minimum | .^requirement for reasons of due process,
With respect to Long’s assertions that both parties shared the fence, and that the tree was on the edge of the property line covering both properties, we hold that it is too late for Long to now attempt to introduce evidence contrary to that presented at trial. Smith produced evidence that the tree was on Long’s property and that she owned the fence. The trial court accepted her evidence and these questions are now foreclosed.
Finally, Long’s assertion that the storm blew the tree down essentially is an argument against causation. We note that Smith’s testimony established that the tree was dead and that Smith had warned Long that the tree was “in diré need of being removed.” We hold that this unrefuted evidence was sufficient to allow the trial court to find that the proximate cause of the tree falling was Long’s failure to cut it despite Long’s knowledge of the tree’s state of decay; force majeure was not a factor.
CONCLUSION
For the reasons set forth above, the trial court’s judgment is hereby AFFIRMED at appellant’s costs.
. See Official Revision Comment to La. C.C.P. art. 1571.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.