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MARITZA BUSTAMANTE v. GEORGIANA MORALES
In this concursus proceeding, Georgiana Morales appeals the trial court judgment denying her motion for new trial. For the following reasons, we dismiss the appeal as untimely.
FACTS AND PROCEDURAL HISTORY
Maritza Bustamante was married to Charles Bustamante, and Georgiana is Charles's daughter from a previous marriage. Charles died intestate, and succession proceedings were opened. In the judgment of possession, Maritza was placed into possession of an undivided 2/3 portion in naked ownership of Charles's community property consisting of debts of the decedent and the community home located at 154 Emerald Valley Drive in Covington, Louisiana. Georgiana Morales was placed into possession of an undivided 1/3 interest in the community property of Charles consisting of the community home and debts of Charles subject to the usufruct of Maritza.
On October 19, 2018, Maritza filed a “Petition for Partition by Licitation of Immovable Property” requesting that the Emerald Valley Drive home be partitioned by licitation by ordering its public sale for cash. Maritza named Georgiana as defendant and contended that the parties were unable to agree on a non-judicial partition of the property. Georgiana was served with the petition through certified mail on October 30, 2018.
Thereafter, the parties agreed to sell the Emerald Valley Drive home, and the home was sold in a private sale. On July 24, 2020, Maritza filed an “Ex Parte Motion to Convert Proceeding into Concursus” stating that she and Georgiana were unable to agree on the distribution of 1/6 1 of the net proceeds from the sale of the home totaling $42,817.41 and requesting an order directing Crescent Title, the holder of the funds, to deposit the funds into the registry of the court and convert the proceeding into concursus. The trial court signed an order converting the proceedings to concursus and authorizing Crescent Title to deposit the funds into the registry of the court. The order further stated, “[Maritza] and [Georgiana] are hereby cited to appear and assert their claims contradictorily against all other parties in these proceedings.” Maritza filed with her motion a “Memorandum in Support of Motion to Distribute Sale Proceeds.”
On December 18, 2020, Maritza filed an “Answer to Concursus” contending that she was entitled to the $42,817.41 deposited in the registry of the court and requesting that the matter be set for trial.
Thereafter, Maritza's attorney filed a “Motion for Preliminary Default” stating that Georgiana was personally served with this lawsuit and failed to appear or file an answer and requesting the entry of a preliminary default. The default was entered by the trial court on April 22, 2021. The matter came before the trial court for a hearing to confirm the default on May 17, 2021, and after the hearing, a judgment was signed that same day awarding Maritza 5/6 of the $42,817.41 totaling $37,948.35 and Georgiana 1/6 of the $42,817.41 totaling $4,869.05 subject to a lifetime usufruct in favor of Maritza. Notice of judgment was sent to Georgiana via certified mail on June 3, 2021 to the same address Georgiana was served with the October 30, 2018 petition.
On July 9, 2021, Georgiana made her first appearance in the record filing a “Motion and Incorporated Memorandum for New Trial” contending that the May 17, 2021 judgment was contrary to the law and was procured through ill practices because it was entered against a defendant for whom no valid service was obtained and no valid preliminary default was entered. Maritza responded, arguing that Georgiana's motion for new trial was untimely. After a hearing on Georgiana's motion for new trial, the trial court denied the motion for new trial, concluding that a signature on the green card (certified mail receipt) was not necessarily required and service of the concursus petition as well as service of the judgment was to a valid address and was proper. The trial court signed a judgment denying Georgiana's motion for new trial on November 4, 2021. It is from the November 4, 2021 judgment denying her motion for new trial that Georgiana appeals, contending the trial court erred in rendering the default judgment and in denying the motion for new trial because the default judgment was entered against a defendant for whom no valid service was obtained and for which no valid preliminary default was obtained. Initially, Georgiana filed a suspensive appeal on December 1, 2021. However, on July 26, 2022, her suspensive appeal was converted to a devolutive appeal.
Under La. Code Civ. P. art. 1974, the delay for applying for a new trial is seven days, exclusive of legal holidays, with the delay commencing to run on the day after the clerk has mailed the notice of judgment as required by La. Code Civ. P. art. 1913. Once the seven-day period for filing a motion for new trial has passed, and no motion for new trial is filed or said motion is untimely filed, the judgment becomes final, and appellate delays begin to run. Nelson v. Teachers’ Retirement System of Louisiana, 2010-1190, (La. App. 1st Cir. 2/11/11), 57 So.3d 587, 589-590. An appeal may be taken by obtaining an order for appeal within the delay set forth by La. Code Civ. P. arts. 2087 or 2123. See La. Code Civ. P. art. 2121.
Article 2087 provides that an appeal that does not suspend the effect or execution of an appealable order or judgment may be taken within sixty days of either: (1) the expiration of the delay for applying for a new trial, as provided in La. Code Civ. P. art. 1974, if no application for new trial is timely filed; or (2) the date of notice of the court's denial of a timely motion for new trial. Article 2123 similarly provides that an appeal that suspends the effect or execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of either: (1) the expiration of the delay for applying for a new trial, as provided in La. Code Civ. P. art. 1974, if no application for new trial is timely filed; or (2) the date of notice of the court's denial of a timely motion for new trial. The untimely filing of a motion for new trial does not interrupt the delay for timely taking an appeal, even if the trial court does not recognize the motion as untimely. Nelson, 57 So.3d at 590.
In this case, the trial court's judgment confirming the preliminary default and distributing the proceeds from the sale of the home was signed on May 17, 2021 and was mailed on June 3, 2021 in conformance with La. Code Civ. P. art. 1913.2 Thus the seven-day time frame within which to file a motion for new trial commenced on Friday June 4 2021 and expired on Monday, June 14, 2021. Accordingly, Georgiana's motion for new trial filed on July 9, 2021 was untimely, had no legal effect, and did not suspend the appeal delays. In other words, because no motion for new trial was filed before the expiration of the seven-day period for filing such motion, the trial court's May 17, 2021 judgment became final, and the appeal delays began to run. Accordingly, the sixty-day delay for taking a devolutive appeal commenced to run on June 14, 2021, and expired on August 13, 2021. Georgiana's motion to appeal, which was filed on December 1, 2021, was therefore untimely. Although we recognize that appeals generally are favored by law, because Georgiana failed to appeal within the delays allowed by law, this court is without jurisdiction to hear this appeal. See La. Code Civ. P. art. 2087. Accordingly, without reaching the merits of Georgiana's appeal, we are constrained to dismiss the appeal as untimely.
Furthermore, as noted, although the trial court in this case conducted a hearing and considered the motion for new trial before denying it, the untimely filing of a motion for new trial does not interrupt the delay for timely taking an appeal, even if the trial court does not recognize the motion for new trial as untimely. The actions of the trial court cannot circumvent the clear deadlines established by law. Nelson, 57 So.3d at 590.
For the above and foregoing reasons, the appeal is dismissed at appellant's cost.
1. Maritza had previously received her 5/6 interest in the proceeds from the sale. Georgiana's 1/6 interest consists of her 1/3 interest of Charles's 1/2 interest in the community property.
2. Article 1913 provides that notice of the signing of a final judgment shall be mailed by the clerk of court to the counsel of record for each party, and the clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, the notice of the signing of judgment was mailed.
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Docket No: NO. 2022 CA 1164
Decided: August 01, 2023
Court: Court of Appeal of Louisiana, First Circuit.
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