LAMAR FORTUNA, SR. AND COLETTE J. FORTUNA
MCNAIR PROPERTIES, LLC AND DONALD HUDSON
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-02722,
DIVISION "A" HONORABLE HENRY P JULIEN, AD HOC
Charles Robert Jones ATTORNEY AT LAW COUNSEL FOR
G. Glenn Alex S. Aughtry BALDWIN HASPEL BURKE & MAYER
COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay, III, Judge Terri F.
Love, Judge Paula A. Brown
A. BROWN JUDGE
breach of contract action arises out of a purchase agreement
between the Appellants/Plaintiffs, Lamar Fortuna, Sr., and
Colette J. Fortuna ("Plaintiffs"), and
Appellees/Defendants, McNair Properties, LLC, and Donald
Hudson ("Defendants"). When the purchase agreement
was not realized, Plaintiffs filed a Petition for Specific
Performance. The Defendants filed a motion for summary
judgment which was granted by the district court. The
judgment was rendered on November 6, 2017.
on December 5, 2017, Plaintiffs filed a motion for new trial.
The district court signed the order on December 6, 2017,
setting the motion for hearing for February 9, 2018. On
December 7, 2017, before the hearing was held on the motion
for new trial, Plaintiffs filed a motion for appeal. The
district court granted the appeal in part, on December 13,
2017, writing: "Denied as to the Motion for New Trial.
Motion set for February 9, 2018. Granted as to Motion for
Summary Judgment only." The appellate record was lodged
in this Court on February 27, 2018.
appellate record reflects a motion for new trial is pending
in the district court. On July 3, 2018, this Court ordered
Plaintiffs to show cause why the pending appeal should not be
dismissed for lack of jurisdiction, citing Merritt
v. Dixon, 97-0781 (La.App. 4 Cir. 5/28/97), 695
So.2d 1095. In the response to this Court's order,
the Plaintiffs allege that a hearing on the motion for new
trial was held at which Plaintiffs' counsel moved to
dismiss the motion for new trial as moot because the motion
for appeal had been granted. In support, Plaintiffs attached
an unsigned copy of the judgment dismissing the motion for
new trial as moot to their response. Plaintiffs state they
have not received a copy of the signed judgment.
Defendants filed an opposition to Plaintiffs' memorandum
in response to the rule to show cause. The Defendants contend
the district court signed the judgment dismissing the motion
for new trial on February 28, 2018, and attached, as an
exhibit to the Defendants' Appellee brief, a signed copy
of the judgment.
reasons that follow, we dismiss the appeal without prejudice
for lack of jurisdiction and remand this matter for further
proceedings consistent with this opinion.
Code Civil Procedure Article 2164 provides in part, that
"the appellate court shall render any judgment which is
just, legal, and proper upon the record on appeal."
In re Succession of Jones, 14-0642, p. 12 (La.App. 4
Cir. 11/12/14), 154 So.3d 624, 630, this Court explained,
citing La. C.C.P. art. 2164, that an appellate court is a
court of record and review is restricted to the record before
the appellate court. The Jones court opined that
"attachments to briefs are not a part of the record on
appeal and cannot be considered in resolving issues on
appeal." Id. (citing Miller v. Crescent
City Health Care Ctr., 08-1347, p. 8 (La.App. 4 Cir.
5/28/09), 24 So.3d 891, 898-99 (Tobias, J., concurring)
case sub judice, the appellate record reflects a
pending motion for new trial. Despite the parties'
assertions that the district court dismissed the motion for
new trial as moot, the appellate record is devoid of the
transcript of the hearing on the motion for new trial and the
signed judgment. As stated supra, Plaintiffs express
they did not receive a copy of the signed judgment dismissing
the motion for new trial. In Merritt, this Court
held that "[a]n appeal taken while a timely motion for a
new trial is pending is premature and subject to dismissal
because the motion suspends the operation of the final
judgment being appealed." Id., 97-0781, p. 2
(La.App. 4 Cir. 5/28/97), 695 So.2d 1095, 1096 (citation
omitted). Where there is no ruling 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. Id. (citing Bowers v.
Viator, 597 So.2d 1250 (La.App. 3 Cir. 1992)). The
appellate court can dismiss an appeal at any time for lack of
jurisdiction. Id. (citing Thomas v. Department
of Corrections, 430 So.2d 1153 (La.App. 1 Cir. 1983)).
Accordingly, the instant appeal is hereby dismissed without
prejudice for lack of jurisdiction, and the case is remanded
to the district court for further proceedings consistent with
DISMISSED WITHOUT ...