MOTION TO DISMISS
Defendants-appellees, Kenneth Edwards and Gulf Insurance Company, move to dismiss the devolutive appeal of the plaintiff, Brenda Fuqua, on the grounds that the judgment complained of is non-appealable.
Plaintiff filed suit for damages as a result of an automobile accident. The jury returned a verdict of $12,145.00. Judgment was rendered on September 3, 1987. The plaintiff filed a motion for judgment notwithstanding the verdict. On November 13, 1987 the trial judge entered written reasons for his denial of the plaintiffs motion for judgment notwithstanding the verdict. On December 1, 1987, judgment was entered denying the motion. On December 1, 1987 plaintiff filed a petition for appeal seeking to appeal the "judgment of November 13, 1987". The order granting the appeal was silent as to which judgment "... in the above numbered and entitled cause..." was being appealed. The defendants filed this motion to dismiss the appeal arguing that the November 13th judgment is a non-appealable interlocutory judgment and that the only appealable judgment (the judgment of September 3, 1987) has become final, since the delays for filing an appeal from that judgment have expired.
In the similar case of Jones v. Zumo, 479 So.2d 655 (La.App. 1st Cir.1985) the defendants filed a motion to dismiss plaintiffs' appeal on the basis that the judgment complained of was a non-appealable interlocutory judgment, the denial of a motion for judgment notwithstanding the verdict and denial of a motion for new trial. Judgment on the merits had been rendered on March 4, 1985, while the denial of the motions had occurred on April 18, 1985. The plaintiffs filed a motion for appeal expressing their desire to appeal the April 18th judgment. The trial court granted the devolutive appeal without making reference to the date of judgment. In maintaining the appeal by finding the plaintiffs had intended to appeal from the judgment on the merits and not the interlocutory judgment, the appellate court reasoned as follows:
In the present case, the order granting the devolutive appeal was silent as to which judgment was being appealed. The plaintiff opposed this motion to dismiss the appeal maintaining the appeal is being taken from the merits of the case. The plaintiffs brief raises an issue pertaining to the judgment on the merits, the inadequacy of the jury award. We infer from this the plaintiff intended to appeal from the September 3, 1987 judgment on the merits. The plaintiffs inadvertence in listing the date of the "November 13th judgment" instead of the September 3rd judgment is insufficient grounds for the dismissal of the appeal.
The defendants also argue that plaintiff's appeal is untimely. The delay for filing a devolutive appeal does not begin to run until the day after the judgment denying plaintiff's motion for judgment notwithstanding the verdict was signed. Winterrowd v. Travelers Indemnity Company, 440 So.2d 822 (La.App. 2nd Cir.1983). The judgment was signed on December 1st, the same day plaintiff petitioned for his appeal. Under these circumstances, plaintiff's appeal was timely.
At mover's cost, the motion to dismiss Fuqua's appeal is denied.