Appeal reinstated after appellant misses Rule 2-8.6 abandonment deadline

One week ago, in Hehn v. Hehn, the en banc Louisiana First Circuit reinstated an appeal that had been dismissed as abandoned.

Here's what happened: After the record was lodged, the court sent out its usual notice of lodging, with briefing deadlines. The appellant failed to file a brief by his deadline, which prompted the court to send a notice of abandonment under Uniform Rule 2-8.6. The Rule 2-8.6 notice warned appellant that his appeal would be dismissed if he did not file a brief within 30 days. On the 30th day, the appellant filed a brief, but the brief was rejected by the clerk's office for failing to comply with the type-size requirement of Rule 2-12.2(2), requiring a 14-point font. Four days later, the court dismissed the appeal.

Appellant then filed a motion for rehearing, seeking reinstatement of the appeal. Appellant's counsel explained that she missed the first deadline due to medical reasons. And she attempted in good faith to file a brief within the Rule 2-8.6 deadline, but because this was the first appeal brief she had done since the rule change to 14-point type, she was unaware of the type-size requirement. The en banc court granted reheaing and reinstated the appeal, but warned that its decision should not be read as "a deviation from our usual policy of [enforcing] Rule 2-8.6, but rather as a unique exception to the rule."

Judge Guidry concurred in the decision, but added that in order to reach it, the court should overrule Lout v. Booty's Deli, 868 So.2d 26 (La. App. 1 Cir. 9/26/03). There, a panel of the First Circuit held that under similar circumstances, it lacked jurisdiiction to consider the appeal, once appellant failed to file a rule-compliant brief by the Rule 2-8.6 deadline and the order of dismissal had been issued.

Posted by RPW at May 13, 2005 10:07 AM