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Belhaven Trace Ltd. Partnership v. Rad-Ton, L.L.C.

Court of Appeals of Louisiana, First Circuit

December 29, 2017


         On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. C634, 6I7, Section 25, Honorable Wilson E. Fields, Judge Presiding.

          Lawrence R. Anderson, Jr. Baton Rouge, Louisiana, Counsel for Third-Party Defendant/ Appellant Roger W. Kahao.

          Scott E. Frazier Jacob B. Huddleston Baton Rouge, LA, Counsel for Third-Party Plaintiff/Appellee Rad-Ton, L.L.C.


          McCLENDON, J.

         In this suit on a promissory note, the third-party defendant appeals the trial court judgment in favor of the third-party plaintiff for the amount due on the note. For the reasons that follow, we affirm.


         This litigation arises out of a dispute between a land developer, Belhaven Trace Limited Partnership (Belhaven), and Rad-Ton, L.L.C. (Rad-Ton). In September 2010, Belhaven contracted with Rad-Ton to grade lots and do other surface preparation work for a subdivision development on approximately eleven acres of land in Baton Rouge, for a contract price of $637, 383.70. After the work was completed and allegedly accepted by Belhaven, a balance of $104, 403.68 remained unpaid to Rad-Ton. On December 28, 2011, Roger Kahao signed a promissory note due on demand for that amount.

         On October 27, 2014, Belhaven filed a Petition for Damages against Rad-Ton in which it asserted defective construction work.[1] Rad-Ton answered the petition, alleging affirmative defenses and asserting a reconventional demand, in which it contended that it had completed all work under the contract, which was accepted by Belhaven, that Belhaven had defaulted on the promissory note executed for the remaining balance due under the construction contract, and that the sum of $100, 903.79 remained due and owing to Rad-Ton. In the same pleading, Rad-Ton also made a third-party demand against Mr. Kahao, alleging that Mr. Kahao executed the note in his individual capacity making him personally liable to Rad-Ton for the sums due thereunder. Belhaven and Mr. Kahao each answered the reconventional demand and third-party demand, urging that Rad-Ton failed to state a cause of action against them. Belhaven stated that there was no authorization by the partners of Belhaven for the execution of the note on behalf of Belhaven. Additionally, Mr. Kahao acknowledged that there was no language in the note indicating that Belhaven was a maker on or executed the note.

         On July 7, 2016, Rad-Ton, as the third-party plaintiff, filed a motion for summary judgment on the promissory note, contending that it was entitled to judgment as a matter of law against Mr. Kahao, in accordance with the terms of the note, in the amount of $75, 043.57, together with interest, late fees, attorney fees, and costs. The motion was heard on September 19, 2016, and the trial court granted the motion. On October 25, 2016, the trial court signed a judgment and designated the judgment as final under LSA-C.C.P. art. 1915B, finding that there was no just reason for delay. Mr. Kahao filed a motion for new trial, which was denied at the conclusion of a hearing on January 30, 2017, and he appealed.


         On May 30, 2017, this court, exproprio motu, issued a show cause order, noting that, from the record, it appeared that the motion for new trial had not been timely filed, thus rendering the appeal of the October 25, 2016 judgment untimely. On September 15, 2017, the rule to show cause was referred to the panel to which the appeal was assigned.

         Generally, LSA-C.C.P. art. 2121 requires that a party file an order for appeal within the delay set forth by LSA-C.C.P. art. 2087 or LSA-C.C.P. art. 2123. Article 2087 provides that an appeal that does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of the expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by LSA-C.C.P. arts. 1974 and 1811, if no application has been filed timely. Article 1974 provides that "[t]he delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913." As noted in the show cause order, the filing of an untimely motion for new trial does not extend the delay for filing an appeal. According to the order, since the notice of judgment was sent on October 28, 2016, Mr. Kahao had until November 8, 2016, to file a motion for new trial, and the motion for new trial, filed on November 10, 2016, appeared to be untimely.

         The record shows that the judgment was signed on October 25, 2016, and notice of the judgment was mailed on Friday, October 28, 2016. While the show cause order indicates that the two Saturdays and two Sundays were counted as legal holidays, Mr. Kahao points out that two legal holidays were omitted in the calculation: All Saints Day on November 1 and Election Day (the first Tuesday after the first Monday in November in even-numbered years) on November 8. We agree. See LSA-R.S. 1:55. Mr. Kahao additionally argues that his motion for new trial was filed on the sixth day, as it was fax filed on November 9, 2016, and the original filed on November 10, 2016, attaching to his Brief in Response to Order Regarding Dismissal of Appeal copies of a receipt confirming the filing by facsimile transmission on November 9, 2016, and a check indicating payment on November 10, 2016, for the filing of the motion. Upon our review of the record, we ...

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