Liquidation Properties, Inc., Without Recourse Versus Jamie P. Labanche and Kim Martin Labranche ( 2019 )

LIQUIDATION PROPERTIES, INC., NO. 19-CA-277
WITHOUT RECOURSE
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
JAMIE P. LABANCHE AND KIM MARTIN
LABRANCHE STATE OF LOUISIANA
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 54,549, DIVISION "A"
HONORABLE MADELINE JASMINE, JUDGE PRESIDING
November 27, 2019
JOHN J. MOLAISON, JR.
JUDGE
Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and John J. Molaison, Jr.
APPEAL DISMISSED; REMANDED
JJM
MEJ
RAC
COUNSEL FOR PLAINTIFF/APPELLEE,
NESTOR I, LLC
Ashley E. Morris
COUNSEL FOR DEFENDANT/APPELLANT,
JAMIE P. LABRANCHE AND KIM MARTIN LABRANCHE
Jamie P. Labranche
MOLAISON, J.
Defendant/appellant, Jamie P. LaBranche, appeals the trial court’s grant of a
summary judgment, and the denial of a motion to recuse the trial judge. For the
following reasons, we dismiss the appeal based upon a lack of jurisdiction and
remand for further proceedings.1
LACK OF JURISDICTION
In this action for a mortgage foreclosure by ordinary process, Mr.
LaBranche, in proper person, first challenges the trial court’s January 22, 2018
“Reformed Judgment” pertaining to the appellee’s cross motion for summary
judgment, and the April 30, 2018 denial of his motion for new trial. The record
reflects that on May 29, 2018, Mr. LaBranche filed a motion to annul the reformed
judgment and a motion for a jury trial. On September 18, 2018, Judge Jasmine
granted Mr. LaBranche a suspensive appeal and stayed his motion to annul
pending the outcome of his suspensive appeal.
It has long been recognized that a court will look to the import of a pleading
and not be bound by the title. Atchley v. Atchley, 01-67 (La. App. 5 Cir. 5/30/01),
788 So.2d 690, writ denied, 01-1915 (La. 2/8/02), 808 So.2d 349. Every pleading
is to be construed so as to do substantial justice. La. C.C.P. art. 865. The caption of
the pleading does not control. Atchley, 788 So.2d at 693. Rather, the court is
obligated to determine the substance of the pleading. Id. With this in mind, we
deem Mr. LaBranche’s “motion to annul” to be a motion for new trial that
challenges the ruling in the reformed judgment.
1
We pretermit a discussion of the procedural history of this case, which has proven to be a
challenging task to formulate based upon the record itself. Because of non-specific language used by Mr.
LaBranche and by the trial court in its Orders granting and dismissing appeals, the record is extremely
confusing as to which judgments are being referred to. For example, one Order of suspensive appeal
failed to identify a specific judgment by subject matter or date.
In construing appellant’s pro se pleadings to do substantial justice, we were also called upon to
review instances where the trial court failed to adhere to requirements detailed in the Code of Civil
Procedure pertaining to the granting of appellant’s suspensive and devolutive appeals. In the interest in
protecting the rights of all parties and maintaining the accuracy of the record, we would remind the trial
court to be as thorough as possible when drafting orders and judgments in future proceedings.
19-CA-277 1
It is well settled in Louisiana law that an appeal taken while a timely motion
for a new trial or request for rehearing is pending is premature and subject to
dismissal because the motion suspends the operation of the final judgment being
appealed. State Through Dep't of Transp. & Dev. v. Scramuzza, 594 So.2d 517,
521 (La. App. 5 Cir. 1992); Crescent Real Estate Equities/1100 Poydras v.
Louisiana Tax Comm'n, 01-1434 (La. App. 1 Cir. 9/28/01), 809 So.2d 394, 396.
When a timely motion for a new trial has been filed, the delay for taking an appeal
does not commence to run until the motion for a new trial has been denied.
Scramuzza, 594 So.2d at 521. La. C.C.P. art. 2087(D) provides that “[a]n order of
appeal is premature if granted before the court disposes of all timely filed motions
for new trial or judgment notwithstanding the verdict.” Accordingly, where the
trial court does not rule on the motion for new trial, the trial court is never divested
of original jurisdiction, and the appellate court lacks jurisdiction to hear the appeal.
Merritt v. Dixon, 97-0781 (La. App. 4 Cir. 5/28/97), 695 So.2d 1095, 1096. Failure
to raise the issue is not sufficient to confer jurisdiction on this Court. Id. The
appellate court can dismiss an appeal at any time for lack of jurisdiction. La.
C.C.P. art. 2162. Pouncy v. Winn-Dixie Louisiana, Inc., 14-496 (La. App. 5 Cir.
9/24/14), 150 So.3d 909, 912.
Based on the foregoing, we find that we are without jurisdiction to consider
the merits of Mr. LaBranche’s appeal related to the trial court’s January 22, 2018
“Reformed Judgment.”
Motion To Recuse
Included among the assignments of error in his instant appeal, Mr.
LaBranche challenges the trial court’s August 7, 2018 denial of his motion to
recuse Judge Jasmine.
On September 6, 2018, Mr. LaBranche was granted a devolutive appeal
19-CA-277 2
regarding the denial of his motion to recuse Judge Jasmine. On February 5, 2019,
the district court granted Mr. LaBranche’s motion to dismiss his devolutive appeal.
Thus we find that any issues related to motion to recuse Judge Jasmine are not
before us.
DECREE
Based upon our lack of jurisdiction, Mr. LaBranche’s appeal is dismissed.
The matter is remanded for further proceedings, including a trial court ruling on
appellant’s pending motion to annul the reformed judgment.
APPEAL DISMISSED; REMANDED
19-CA-277 3
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 27, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-277
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE MADELINE JASMINE (DISTRICT JUDGE)
ASHLEY E. MORRIS (APPELLEE)
MAILED
JOHN C. MORRIS, IV (APPELLEE) JAMIE P. LABRANCHE (APPELLANT)
ATTORNEY AT LAW IN PROPER PERSON
1505 NORTH 19TH STREET 2173 CARMEL VALLEY DRIVE
MONROE, LA 71201 LAPLACE, LA 70068