Scott Thompson v. Susan Molinari

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 10-805 SCOTT THOMPSON VERSUS SUSAN MOLINARI

********** APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 72107 HONORABLE EDWARD M. LEONARD, JR., DISTRICT JUDGE

********** SHANNON J. GREMILLION JUDGE ********** Court composed of Billy H. Ezell, Shannon J. Gremillion, and David E.

Chatelain,* Judges.

MOTION FOR APPOINTMENT OF COUNSEL DENIED.

REQUEST FOR STAY DENIED.

RICHARD DAMIAN MERE Attorney at Law Post Office Box 3301 Lafayette, Louisiana 70502 (337) 269-5555 COUNSEL FOR DEFENDANT/APPELLEE: Susan Molinari SCOTT THOMPSON Federal Correctional Complex, USP-1 Post Office Box 1033 Coleman, Florida 33521-1033 PLAINTIFF/APPELLANT: In Proper Person ____________________ *Judge David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

GREMILLION, Judge.

This appeal was filed by a pro se pauper applicant who is currently incarcerated in a federal prison in Florida. On July 21, 2010, this court received the Appellant’s Motion for Appointment of Counsel. The Appellant requests this court appoint him an attorney to assist him in preparing his civil appeal brief. The Appellant claims that because he has recently been transferred to federal custody and is now incarcerated in Florida, he has no access to the Louisiana law library materials necessary to prepare his brief.

In the alternative, the Appellant requests this court stay his appeal proceedings in order that he may attempt to obtain these materials. For the reasons given below, we deny the Appellant’s Motion for Appointment of Counsel and request for stay.

This case arises out of the Plaintiff’s filing of a summary proceeding seeking to nullify a donation. The trial court signed a judgment on February 8, 2008, which dismissed Plaintiff’s claims with prejudice. Notice of the signing of judgment was sent on March 18, 2008. The Plaintiff then filed a request for an appeal from this judgment on April 28, 2008. The trial court signed an order of appeal, and the record in this case was lodged in this court.

Upon the lodging of the record, this court issued a notice of lodging to the Appellant notifying him that his appellate brief is due on August 2, 2010.

We find that the Appellant has cited no authority for the appointment of an appeal attorney, nor has the Appellant shown how he is an exception to the general rule that parties in civil cases are not entitled to appointed counsel to represent them. In Ardoin v. Bourgeois, 04-1663 (La.App. 3 Cir. 11/2/05), 916 So.2d 329, this court found that an incarcerated defendant was not entitled to appointed counsel in civil trial proceedings. This court did acknowledge that constitutional due process may require the appointment of counsel to indigents in civil matters “when fundamental constitutional rights are involved.” Id. at 333. However, we find that the Appellant’s underlying suit seeking to nullify a donation does not satisfy this requirement.

Accordingly, we hereby deny the Appellant’s Motion for Appointment of Counsel.

In addition, we also deny Appellant’s request for stay of his appeal, but will consider this request as a timely filed motion for extension of time to file brief pursuant to Uniform Rules—Courts of Appeal, Rule 2–12.8. For good cause shown, we hereby order that the Appellant file his appellate brief on or before August 12, 2010.

MOTION FOR APPOINTMENT OF COUNSEL DENIED.

STAY OF APPEAL DENIED.

This opinion is NOT DESIGNATED FOR PUBLICATION.

Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.