Public-domain · open source
OpenJurist

663 So. 2d 103

Docket No. M95-917.

ERI, INC. v. Weinstein

ERI, INC., Plaintiff-Appellant, v. John H. WEINSTEIN and ABC Insurance Company, Defendant-Appellee.

Louisiana Court of Appeal

Decided August 21, 1995.

Louisiana Court of Appeal · decided 1995-08-21

Cited by 3 later decisions — most recently July 2006

3 state decisions

Key passage — most relied on by later courts

“In the present case, we deem the motion for new trial to have been taken under advisement, therefore La.C.C.P. art. 1914 applies. The delays for filing the motion for an appeal did not begin to run until notice of the judgment was mailed on March 20, 1995. Accordingly, the motion to dismiss the appeal is denied.”

quoted by 1 later decision, including 702 So. 2d 927 - Gregory v. D & H Enterprises

Relies on 612 So. 2d 247 - Succession of Schulz

Good law ✅— No negative treatment on recordhow we know

Decided 1995-08-21

View the full empirical analysis of this case →

¶1*104 Philip J. Shaheen, Baton Rouge, for ERI, Inc.

¶2Marc W. Judice, Lafayette, for John H. Weinstein.

¶3Before SAUNDERS, DECUIR and SULLIVAN, JJ.

¶4DECUIR, Judge.

¶5

MOTION TO DISMISS UNLODGED APPEAL

¶6Defendant-appellee, John Weinstein, has filed a motion to dismiss an unlodged appeal filed by the plaintiff-appellant, ERI, Inc.

¶7The exhibits attached to the motion to dismiss reveal that the judgment was signed on December 19, 1994. Notice of judgment was sent out on December 19, 1994, and a motion for new trial was filed by ERI, Inc. on December 23, 1994. In a per curiam rendered on December 29, 1994, the motion for new trial was denied ex parte. The judgment on the denial of new trial was not signed until March 19, 1995. Notice of judgment was mailed on March 20, 1995. On May 15, 1995, ERI, Inc. filed a motion for devolutive appeal.

¶8Appellee argues that the per curiam denying the new trial issued on December 29, 1994, did not require notice of judgment and is the triggering point for starting the delays for filing the appeal. We disagree.

¶9In Succession of Schulz,612 So.2d 247 (La.App. 4 Cir.1992), the Fourth Circuit was confronted with a similar issue. In that case the court stated as follows:

Appellee asserts that appellant's application for new trial was never taken under advisement, so that art. 1913 and not 1914 would apply. She argues that no notice was required by art. 1913 and that the delay for taking the appeal commenced the day the application for new trial was denied. The order denying the motion was not signed in counsel's presence and was not signed until twelve days after the application was filed. Consequently, we deem the application to have been under advisement so that art. 1914 applied.

¶10In the present case, we deem the motion for new trial to have been taken under advisement, therefore La.C.C.P. article 1914 applies. The delays for filing the motion for an appeal did not begin to run until notice of judgment was mailed on March 20, 1995. Accordingly, the motion to dismiss the appeal is denied.

¶11MOTION DENIED.

/663/so2d/103 · .json · Public domain