Cole v. Belknap, Inc.

Full title: JAY M. COLE, PLAINTIFF-APPELLANT, v. BELKNAP, INC., VERMONT AMERICAN…

Court: Court of Appeal of Louisiana, Third Circuit

Date published: Oct 10, 1986

495 So. 2d 434 (La. Ct. App. 1986)

Opinion

No. 86-829.

October 10, 1986.

APPEAL FROM 14TH JUDICIAL DISTRICT COURT, CALCASIEU PARISH, STATE OF LOUISIANA, HONORABLE ARTHUR J. PLANCHARD, J.

Robert L. Dow, Lake Charles, for plaintiff-appellant.

William McLeod, Jr., Richard A. Chozen of Raggio, Cappel, Lake Charles, for defendants-appellees.

Before GUIDRY, FORET and YELVERTON, JJ.

YELVERTON, Judge.

MOTION TO DISMISS

The defendants-appellees move to dismiss the appeal of the plaintiff-appellant, Jay M. Cole, on the grounds that the appellant has appealed the denial of a motion for a new trial, a non-appealable interlocutory judgment.

A final judgment was rendered and signed on February 14, 1986 in favor of the plaintiff. On February 21, 1986, the plaintiff filed a motion for a new trial, and said motion was denied in open court on May 30, 1986, with the order being signed on June 5, 1986. The plaintiff then motioned the trial court for, and obtained an order granting plaintiff a devolutive appeal. This order was signed on July 10, 1986, and states that the devolutive appeal is from the judgment rendered in open court on May 30, 1986 and signed on June 5, 1986. Movers subsequently filed Motions to Dismiss.

It is well settled that the denial of a motion for a new trial can be appealed only upon a showing of irreparable harm. Dural v. City of Morgan City, 449 So.2d 1047 (La.App. 1 Cir. 1984), LSA-C.C.P. Art. 2083. However, it is evident that the appellant has appealed the final judgment signed on February 14, 1986, as the appellant's brief only addresses issues concerning the merits of the final judgment. The jurisprudence is well settled that where a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. Dural, supra at 1048 and cases cited therein. The circumstances in the case sub judice indicate the appeal is from the final judgment of February 14, 1986.

Accordingly, the Motions to Dismiss are denied and appellant's appeal maintained.

MOTION DENIED.