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
Lawrence R. Anderson, Jr. Baton Rouge, Louisiana, Counsel for
Third-Party Defendant/ Appellant Roger W. Kahao.
E. Frazier Jacob B. Huddleston Baton Rouge, LA, Counsel for
Third-Party Plaintiff/Appellee Rad-Ton, L.L.C.
BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
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.
AND PROCEDURAL HISTORY
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.
October 27, 2014, Belhaven filed a Petition for Damages
against Rad-Ton in which it asserted defective construction
work. 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.
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.
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.
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.
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 ...