Opinion
No. 82-CA-70.
November 4, 1982.
APPEAL FROM TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. JOHN, NO. 11,417, DIVISION "B", STATE OF LOUISIANA, HONORABLE THOMAS J. MALIK, J.
Roland J. St. Martin, LaPlace, for plaintiffs-appellees.
Tony C. Tillman, LaPlace, for defendants-appellants.
Before KLIEBERT, BOWES and DUFRESNE, JJ.
Plaintiffs-appellees have filed a motion to dismiss an appeal taken by the defendants-appellants.
The sole argument of the appellees is that the defendants have neither appeared nor filed a timely brief and that the appeal should be considered abandoned and dismissed. They cite Section 5(b) of Rule VII of the Uniform Rules of the Courts of Appeal. We do not agree with this argument
Since July 1, 1982 the Revised Uniform Rules of the Courts of Appeal became effective and must be applied to this matter.
As provided by current Rule 212.12:
"If the brief on behalf of any party is not filed by the date that the brief is due, the party's right to oral argument shall be forfeited. The court may also impose other sanctions including, but not limited to, dismissal of the appeal when the appellant docs not file a brief provided for in Rule 2-8.6."
In accordance with Rule 2-8.6, should the appellant not file his brief timely, "a notice shall be mailed by the Clerk to counsel for the appellant, or to the appellant if not represented, that the appeal shall be dismissed 30 days after such notice is mailed, the appeal shall be dismissed as abandoned."
In the case before us, the appellant's brief was due on September 13, 1982, however, his brief was filed on September 27, 1982. Thus, in accordance with Rule 2-12.12, the appellants' right to oral argument shall be forfeited. This appeal cannot be dismissed under Rule 28.6 since the appellants did file their brief on September 27, 1982.
For the reasons assigned, the motion to dismiss the appeal is denied.
MOTION DENIED.