JENNIFER A. LOYOLA
JAMES A. LOYOLA
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 751-435, DIVISION
"H" HONORABLE GLENN B. ANSARDI, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, JENNIFER A. LOYOLA ROBERT C.
LOWE MARYNELL L. PIGLIA
COUNSEL FOR DEFENDANT/APPELLANT, JAMES A. LOYOLA RACHEL L.
composed of Judges Marc E. Johnson, Robert A. Chaisson, and
Stephen J. Windhorst
ROBERTA. CHAISSON JUDGE
case arising from divorce proceedings, Dr. James Loyola
appeals an April 26, 2018 judgment denying his Motion for New
Trial following a November 30, 2017 judgment of the trial
court granting a Petition to Enforce a Compromise Agreement
filed by Ms. Jennifer Loyola. For the following reasons, we
dismiss this appeal.
AND PROCEDURAL HISTORY
parties argued the merits of the Motion for New Trial at an
April 9, 2018 hearing, during which the trial court denied
the motion in open court. The judgment denying the Motion for
New Trial was signed on April 26, 2018, and the clerk of
court mailed notice of the judgment on May 1, 2018.
23, 2018, Dr. Loyola filed a Notice of Intent to Apply for
Supervisory Writ wherein he sought review of the trial
court's November 30, 2017 judgment and subsequent denial
of his Motion for New Trial. An Application for Supervisory
Writ was never filed with this Court.
11, 2018, counsel for Dr. Loyola filed a Motion for Appeal of
the November 30, 2017 and April 26, 2018 judgments wherein
counsel argued that the clerk of court mailed the notice of
judgment to the incorrect address. The trial court granted
the Motion for Appeal on July 11, 2018. Ms. Loyola has filed
a Motion to Dismiss Dr. Loyola's appeal as untimely.
rules establishing the time delays applicable in this case
are set forth in La. C.C.P. articles 3942, 3943, and 2087.
Under these articles, an appeal from a judgment awarding
custody, visitation, or support of a person can be taken
within thirty days of either: 1) the expiration of the delay
for applying for a new trial, if no application has been
timely filed; or 2) the date of the mailing of the notice of
the court's refusal to grant a timely filed application
for a new trial. Accordingly, Dr. Loyola had thirty days
from May 1, 2018, when the clerk of court mailed notice of
the April 26, 2018 judgment to file his appeal, which makes
his July 11, 2018 Motion for Appeal untimely on its face.
Motion for Appeal, Dr. Loyola stated that his motion was
timely filed because the clerk of court mailed the notice of
judgment to an incorrect address located at 406 Magazine
Street, which is contrary to the requirements set forth in
La. C.C.P. art. 1913. In his Motion for Appeal, Dr. Loyola
did not argue that he had never received the notice of
judgment, though he does make this claim for the first time
before this Court in his opposition to the Motion to Dismiss.
appellant fails to timely file an appeal, the appellate court
lacks jurisdiction to consider the appeal. Morice v. Alan
Yedor Roofing & Constr., 16-532 (La.App. 5 Cir.
2/8/17), 216 So.3d 1072, 1076 (citing Alexander v.
Maki, 15-517 (La.App. 5 Cir. 1/4/16), 183 So.3d 821,
823). This Court has previously held that the plain wording
of La. C.C.P. art. 1913 clearly requires the clerk of court
to mail notice of the signing of a final judgment to the
counsel of record for each party. Hacienda Constr., Inc.
v. Newman, 10-18 (La.App. 5 Cir. 6/29/10), 44 So.3d 333,
336. The purpose of the requirement that the clerk of court
mail notice of final judgment is to give parties notice of
judgment in order to timely move for a new trial or appeal.
Albitar v. Albitar, 16-167 (La.App. 5 Cir. 6/30/16)
197 So.3d 332, 340. In a few reported cases, this Court has
held that actual knowledge of the signing of the judgment
outside of the record and absent compliance with the mailing
or service requirement is not sufficient to cause new trial
and appeal delays to commence. Morice, supra; 9029
Jefferson Highway, L.L.C. v. S & D Roofing, L.L.C,