Alton Jiles, O/B/O Kayla Jiles v. Wilton Anthony

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CM 12-534

ALTON JILES ON BEHALF OF KAYLA JILES VERSUS WILTON ANTHONY, ET AL.

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APPEAL FROM THE

ELEVENTH JUDICIAL DISTRICT COURT

PARISH OF SABINE, NO. 62507 HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

********** OSWALD A. DECUIR JUDGE **********

Court composed of Oswald A. Decuir, Billy H. Ezell, and J. David Painter, Judges.

MOTION TO DISMISS APPEAL DENIED.

Randall M. Seeser Joseph P. Landreneau Gold, Weems, Bruser, Sues Post Office Box 6118 Alexandria, LA 71307-6118 (318) 445-6471 COUNSEL FOR DEFENDANTS/APPELLEES:

GuideOne Specialty Mutual Ins. Co. Wilton Anthony Siloam Baptist Church

Harold Dean Lucius, Jr. Law Office of Kirby D. Kelly 515 Spring Street Shreveport, LA 71101 (318) 459-1885 COUNSEL FOR PLAINTIFF/APPELLANT:

Alton Jiles DECUIR, Judge.

The Defendants-Appellees, Wilton Anthony, Siloam Baptist Church, and Guideone Specialty Mutual Insurance Company, have filed a motion to dismiss the Plaintiff’s appeal in this matter. For the reasons given herein, we deny the motion.

In their memorandum in support of motion to dismiss appeal, the Defendants state that the trial court granted their motion for summary judgment on October 21, 2011, and dismissed Plaintiff’s claims with prejudice. The Plaintiff filed a motion for reconsideration and/or new trial which was denied by the trial court on November 21, 2011.

The Plaintiff filed his motion and order for notice of appeal on December 12, 2011. In the body of the motion, Plaintiff states that he desires to appeal devolutively from the “final judgment rendered in this action”. However, the attached order signed by the trial court states that the Plaintiff is granted an appeal from the judgment signed on November 21, 2011. The judgment specifically referenced by date is the trial court’s denial of the Plaintiff’s motion for reconsideration and/or new trial. Because they contend that the trial court’s denial of the Plaintiff’s motion is not an appealable judgment, the Defendants seek to have this court dismiss Plaintiff’s appeal, with prejudice, and at Plaintiff’s cost.

Although we agree with Defendants that the denial of a motion for new trial is not an appealable order, our inquiry does not end here. This court has held that an appeal should be maintained where the argument by the appellant on appeal indicates that the appeal is intended to be from the final judgment. McClure v. City of Pineville, 05-1460 (La.App. 3 Cir. 12/6/06), 944 So.2d 805, writ denied, 07-43 (La. 3/9/07), 949 So.2d 446. In this matter, we are unable to make this determination at this time because the Plaintiff has not yet made his argument on appeal. Therefore, we deny the Defendant’s motion to dismiss at this time. MOTION TO DISMISS APPEAL DENIED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.

Rule 2-16.3 Uniform Rules, Court of Appeal.