MOORE v. EAST BATON ROUGE PARISH SCHOOL BOARD (2025)

Plaintiff/Appellant, Susan D. Moore, appeals a judgment granting a second motion for new trial and sustaining a peremptory exception of prescription in favor of Defendants/Appellees, East Baton Rouge Parish School Board and H. Warren Drake, Jr., and dismissing Moore's claims against them with prejudice. For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

On July 14, 2016, Moore filed a “Petition for Damages” in Orleans Parish, naming East Baton Rouge Parish School Board and H. Warren Drake, Jr. (collectively “Defendants”) as defendants. Moore contended Defendants were liable for wrongfully terminating her employment and denying her due process as mandated by La. R.S. 17:444. She further alleged she was entitled to damages because she was deprived of a protected property right valued at $123,000.00, along with other damages. Defendants then filed an “Unopposed Motion to Transfer Venue to 19th Judicial District Court” on October 28, 2016, and the Orleans Parish trial court signed an order transferring the matter to the Nineteenth Judicial District Court on November 4, 2016.

On September 11, 2019, Defendants filed a peremptory exception of prescription. Defendants contended Moore filed her suit in an improper venue and failed to serve Defendants before the prescriptive period lapsed, so Moore's claims were prescribed. Defendants alleged the prescriptive period lapsed one year after the alleged wrongful termination date of July 15, 2015. After a hearing on November 4, 2019, the trial court sustained the exception in favor of Defendants and against Moore and dismissed all of Moore's claims against Defendants with prejudice. A judgment to that effect was signed on November 25, 2019.

Thereafter, on December 2, 2019, Moore filed a motion to recuse the trial court judge. Moore alleged that following the hearing on Defendants’ exception, she discovered that Defendants’ attorney's law firm made a $2,500.00 donation to the trial court judge two months after the case was transferred to the Nineteenth Judicial District Court, which was the first donation that law firm had made to the trial court judge in about six years. A hearing on the motion to recuse was held on November 19, 2020, and a different trial court judge found that there was insufficient evidence for recusal and denied the motion. That judgment was signed on November 20, 2020.

Also, on December 2, 2019, Moore filed a motion for new trial on the exception of prescription. A hearing was held on March 18, 2024, and the trial court denied the motion. The trial court signed a judgment to that effect on April 8, 2024. After Moore's motion for new trial on the exception of prescription was denied, Moore filed a second motion for new trial, alleging insufficient service of the March 18, 2024 hearing date. The second motion for new trial was heard by the trial court on May 20, 2024. The trial court granted the second motion for new trial, but again sustained the exception of prescription, and again dismissed Moore's claims against Defendants with prejudice.¹ A judgment to that effect was signed on June 14, 2024. On August 9, 2024, Moore filed a motion for devolutive appeal, seeking to appeal the June 14, 2024 judgment.

TIMELINESS OF APPEAL

Upon the lodging of this appeal and examination of the record, this court, ex proprio motu, issued a rule to show cause order directing the parties to show cause why this appeal should not be dismissed as untimely. Following briefing, the rule to show cause was referred to the panel to which this appeal was assigned.

Louisiana Code of Civil Procedure article 2087(A)(2) provides that a devolutive appeal may be taken within sixty days of the date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under La. C.C.P. art. 1914. Appellate courts do not acquire jurisdiction of an appeal that is not timely perfected. Phillips v. Exxon Chemical Louisiana, LLC, 2022-1290 (La. App. 1st Cir. 6/23/23), 370 So. 3d 738, 741, writ denied, 2023-01122 (La. 11/21/23), 373 So. 3d 451. The appeal delays found in La. C.C.P. art. 2087 are not prescriptive periods that are subject to interruption; these time limits are jurisdictional. Everett v. Baton Rouge Student Housing, L.L.C., 2010-0856 (La. App. 1st Cir. 5/6/11), 64 So. 3d 883, 886, writ denied, 2011-1169 (La. 9/16/11), 69 So. 3d 1149. An appellant's failure to file a devolutive appeal timely is a jurisdictional defect, in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse, revise, or modify a final judgment after the time for filing a devolutive appeal has elapsed. Everett, 64 So. 3d at 886.

While Moore argues that her appeal is timely because it was filed within sixty days of the June 14, 2024 judgment rendered pursuant to her second motion for new trial, it is well settled that a party may not file a second motion for a new trial after a court has denied that party's motion for a new trial. River City Federal Savings Bank v. Johnston, 2007-0449 (La. App. 1st Cir. 11/2/07), 2007 WL 3229143, *4 (unpublished), citing Palmer & Palmer v. United Investment Corporation, 255 So. 2d 611, 612 (La. App. 1st Cir. 1971), writ denied, 260 La. 689, 257 So. 2d 151 (La. 1972), and South Central Bell v. Milton J. Womack & Associates, Inc., 97-2413 (La. App. 1st Cir. 11/6/98), 744 So. 2d 635, 637, writ denied, 99-0644 (La. 4/23/99), 742 So. 2d 889. Specifically, when a trial court denies a motion for a new trial, the trial court is without jurisdiction to entertain a second motion for a new trial. See River City Federal Savings Bank, 2007 WL 3229143 at *4.

The judgment sustaining the Defendants’ exception of prescription and dismissing Moore's claims against Defendants was signed on November 25, 2019. On December 2, 2019, Moore timely filed a motion for new trial on the exception of prescription. After a hearing, the trial court signed a judgment denying the motion for new trial on April 8, 2024. Notice of that judgment was issued on April 16, 2024. Thus, pursuant to La. C.C.P. art. 2087(A)(2), the sixty-day devolutive appeal delay began on April 16, 2024 and expired on June 17, 2024. Moore did not file her appeal until August 9, 2024. Therefore, Moore's appeal is untimely.

CONCLUSION

For the above and foregoing reasons, this appeal is dismissed. All costs of this appeal are assessed against Susan D. Moore.

APPEAL DISMISSED.

FOOTNOTES

1.   We note that while the trial court granted the second motion for new trial, it thereafter rendered the same judgment as before, sustaining the exception of prescription in favor of Defendants and dismissing all of Moore's claims against Defendants with prejudice. As explained herein, the trial court did not have jurisdiction to rule on the second motion for new trial. See River City Federal Savings Bank v. Johnston, 2007-0449 (La. App. 1st Cir. 11/2/07), 2007 WL 3229143, *4 (unpublished).

MILLER, J.