THREE RIVERS COMMONS OWNERS ASSOCIATION INC v. DONNA GRODNER ET AL (2025)

Defendant, Donna Grodner, appeals a judgment of the trial court granting a motion for summary judgment in favor of plaintiff, Three Rivers Commons Owners’ Association, Inc.’s (“TRC”), and issuing a permanent injunction against Ms. Grodner enjoining her from trespassing upon property owned by TRC. For the following reasons, we dismiss the appeal as untimely.

FACTS AND PROCEDURAL HISTORY

This matter involves a property dispute between Donna Grodner, who owns property on Three Rivers Island, an island located on the south side of the Diversion Canal in Livingston Parish, and TRC, the association of owners who own property in the Three Rivers Commons condominium development located on the western side of the island. In 2014, TRC filed suit against Ms. Grodner, who owns property to the east of the condominium development, alleging she entered the condominium development, and attempted to open a welded gate to access a pathway, so that it could be used by golf carts and foot traffic. TRC sought an injunction preventing Ms. Grodner from opening the gate. Ms. Grodner and three other Three Rivers Island property owners filed a reconventional demand, claiming they had a right of passage through the gate and seeking a mandatory injunction requiring TRC to remove or open the gate to allow them access to the servitude. Following a bench trial, the trial court signed a judgment enjoining Ms. Grodner and those acting on her behalf from opening the gate. On appeal, this court reversed the judgment in part dissolving the permanent injunction prohibiting Ms. Grodner and those acting on her behalf from opening the gate, but affirming the judgment in all other respects. See Three Rivers Commons Condominium Association v. Grodner, 2016-0067 (La. App. 1st Cir. 5/10/17), 220 So. 3d 776, 779-80 (per curiam), writ denied, 2017-0974 (La. 4/2/18), 248 So. 3d 315; Three Rivers Commons Owners’ Association, Inc. v. Grodner, 2023-0050 (La. App. 1st Cir. 10/31/23), 382 So. 3d 972 (finding that the issue of injunctive relief was res judicata and thus barred Ms. Grodner's reconventional demand).

Subsequently, on August 10 2021, TRC filed a second lawsuit seeking to enjoin Ms. Grodner from trespassing on private property and encouraging others to do so. TRC alleged that Ms. Grodner vandalized the east gate by removing a portion of its structure with the intent to permanently open it to golf cart traffic and for personal use. TRC also alleged that contemporaneously therewith, Ms. Grodner posted on social media “safe passage to all” and advised the residents of Three Rivers Island that they had a servitude of “free access” over TRC's property. Following a hearing, the trial court granted TRC's petition for preliminary injunction and set its petition for permanent injunction for hearing. Thereafter, Ms. Grodner filed a reconventional demand asserting that a servitude of passage existed over TRC's property. In response, TRC filed an exception of res judicata, which the trial court granted. Three Rivers, 3 82 So. 3d at 976-977. Ms. Grodner appealed and this court affirmed. Three Rivers, 382 So. 3d at 981.

Pertinent to the instant appeal, on November 30, 2022, the trial court granted a summary judgment in favor of TRC and issued a permanent injunction “enjoining Donna U. Grodner from trespassing upon the property owned by [TRC] and enjoining her from encouraging or conspiring with third parties to commit a trespass upon the property owned by [TRC].” Notice of said judgment was mailed on December 6, 2022. On December 19, 2022, Ms. Grodner filed a motion for new trial in response to the November 30, 2022 judgment. It does not appear that this motion for new trial was ruled upon by the trial court. Later, on January 10, 2023, a second notice of judgment regarding the November 30, 2022 judgment was mailed by the Livingston Parish Clerk of Court's office. Ms. Grodner then filed a second motion for new trial on January 18, 2023. On May 11, 2023, the trial court denied Ms. Grodner's second motion for new trial and on July 10, 2023, Ms. Grodner filed a motion seeking to appeal the November 30, 2022 judgment.

DISCUSSION

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 by the parties, this rule to show cause was referred to the panel to which this appeal was assigned. Three Rivers Commons Owners’ Association, Inc. v. Donna Grodner, 2024-073 7 (La. App. 1st Cir. 10/18/24) (unpublished).

Pursuant to La. C.C.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. C.C.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. Bustamante v. Morales, 2022-1164 (La. App. 1st Cir. 8/1/23), 371 So. 3d 539, 542. Louisiana Code of Civil Procedure article 2087(A) 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 new trial, as provided in La. C.C.P. art. 1974, if no application for new trial is timely filed; or (2) the date of the mailing of notice of the court's denial of a timely motion for new trial. An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions. La. C.C.P. art. 2087(D). An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment. La. C.C.P. art. 2121.

Appellate courts do not acquire jurisdiction of an appeal that is not timely perfected. Bridges v. Baton Rouge General Medical Center, 2020-0270 (La. App. 1st Cir. 12/30/20), 317 So. 3d 662, 684, writ denied, 2021-00144 (La. 4/7/21), 313 So. 3d 985. 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. 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 lapsed. 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, citing 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.

In this case, the trial court's judgment granting TRC's motion for summary judgment and issuing a permanent injunction against Ms. Grodner was signed on November 30,2022. In conformity with La. C.C.P. art. 1913, notice of this judgment was mailed to all counsel of record on December 6, 2022. Thus, the seven-day time frame within which to file a motion for new trial commenced on December 7, 2022 and expired on December 15, 2022. See La. C.C.P. art. 1974. Accordingly, both of Ms. Grodner's motions for new trial – the first on December 19, 2022 and the second on January 18, 2023 - were 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 November 30, 2022 judgment became final, and the appeal delays began to run. Accordingly, the sixty-day delay for taking a devolutive appeal commenced to run on December 15, 2022, and expired on February 13, 2023. See La. C.C.P. art. 2087(A). Ms. Grodner's motion for appeal, filed on July 10, 2023, was therefore untimely.

Although the trial court in this case conducted a hearing and considered Ms. Grodner's second 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. Bustamante, 371 So. 3d at 543, citing Nelson v. Teachers’ Retirement System of Louisiana, 2010-1190 (La. App. 1st Cir. 2/11/11), 57 So. 3d 587, 590.

Although we recognize that appeals generally are favored by law, because Ms. Grodner failed to file the instant appeal within the applicable delays, this court is without jurisdiction to hear this appeal and must dismiss it as untimely. An appeal can be dismissed at any time for lack of jurisdiction of the appellate court. La. C.C.P. art. 2162.

CONCLUSION

For the above and foregoing reasons, the rule to show cause is granted and this appeal is dismissed. All costs of this appeal are assessed to the defendant/appellant, Donna Grodner.

APPEAL DISMISSED.

I respectfully dissent from the majority opinion, as I would find Ms. Grodner's appeal to be timely filed. It is a well-settled principle that appeals are favored in the law and, unless the ground urged for dismissal is free from doubt, the appeal should be maintained. Jackson v. Family Dollar Stores of Louisiana, Inc., 2018-0170 (La. 6/27/18), 251 So.3d 368, 372; Rose v. Twin River Development, LLC, 2017-0319 (La. App. 1st Cir. 11/1/17), 233 So.3d 679, 683. Herein, Ms. Grodner's first motion for new trial was untimely filed following the December 6, 2022 notice of judgment. However, because a second notice of judgment was inexplicably issued by the clerk's office, signed by the deputy clerk, and mailed to all parties, I would find Ms. Grodner was justified in relying on this second notice of judgment in timely filing her second motion for new trial. Therefore, because Ms. Grodner filed the instant devolutive appeal within sixty days of the trial court's denial of her second motion for new trial, I would find her appeal to be timely filed.

Furthermore, I would find, sua sponte, that the trial court's November 30, 2022 judgment granting Three River Commons Owners’ Association, Inc.’s (“TRC”) cross-motion for summary judgment to be res judicata. The objection of res judicata may be noticed and supplied by an appellate court on its own motion. See La. Code Civ. P. art. 927(B); Bailey v. Clark, 2020-0257 (La. App. 1st Cir. 5/12/21), 326 So.3d 900, 903; see also La. R.S. 13:4231. Here, there is no dispute that the 2014 litigation, filed by TRC and seeking an injunction prohibiting Ms. Grodner from opening a gate on its property, became valid and final when the Louisiana Supreme Court denied Ms. Grodner's application for supervisory review. See Three Rivers Commons Condominium Association v. Grodner, 2016-0067 (La. App. 1st Cir. 5/10/17), 220 So.3d 776, 780, writ denied, 2017-0974 (La. 4/2/18), 248 So.3d 315. Further, the parties are clearly the same in both the 2014 litigation and the instant 2021 litigations: TRC as plaintiff and Ms. Grodner as defendant. In addition, TRC's request in the instant 2021 litigation is identical to its request in the 2014 litigation: a permanent injunction against Ms. Grodner from opening a gate leading into the condominium common area and trespassing thereon. While the 2014 litigation did not contemplate Ms. Grodner actually committing a trespass onto the TRC common area, and the 2021 litigation does, it is clear that both litigations stem from the same ongoing transaction of Ms. Grodner's belief that she has a right of passage over the common areas, and TRC's continued requests of a permanent injunction to prohibit such an action. As such, it is likewise clear that the instant 2021 litigation cause of action arose out of the same transaction or occurrence as was the subject of the 2014 litigation. Therefore, I would vacate the trial court's granting of summary judgment in favor of TRC, and dismiss its claims against Ms. Grodner with prejudice based on res judicata.

MILLER, J.

Wolfe, J. dissents and assigns reasons.