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DANA NACCARI FLORIDI VERSUS GREGORY P. FLORIDI

NO. 08-CA-1306 FIFTH CIRCUIT COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 624-906, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

APRIL 28, 2009

CLARENCE E. MCMANUS
JUDGE
Panel composed of Judges Edward A. Dufresne, Jr., Clarence E. McManus, and Fredericka Homberg Wicker

H. CRAIG CABRAL
Attorney at Law 3939 North Causeway Boulevard Suite 100

Metairie, LA 70002 COUNSEL FOR PLAINTIFF-APPELLANT
MICHAEL A. ROSENBLATT Attorney at Law Post Office Box 56655 New Orleans, LA 70156-6655 COUNSEL FOR DEFENDANT-APPELLEE

REVERSED AND REMANDED

Plaintiff, Dana Naccari Floridi, was found in contempt of court by judgment rendered on December 5, 2007. She filed a motion for new trial from that judgment, which was denied on June 2, 2008. Plaintiff now appeals from the judgment denying her a new trial. For the reasons that follow, we reverse the
decision of the trial court and remand for further proceedings.

The parties were divorced by judgment rendered on January 9, 2007. The community property had yet to be partitioned at the time of this appeal, and included rental property under the administration of plaintiff, Ms. Floridi. The parties each filed motions for contempt, which were ultimately heard on October 30 and November 8, 2007. At the contempt hearing on October 30, 2007, Ms. Floridi's counsel indicated that he wanted to call the hearing officer as a witness but the hearing officer was unavailable. The court stated that it would leave the matter open for
the taking of that evidence, and also for closing arguments, scheduled for

November 8, 2007.

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At some time immediately prior to the November 8th hearing, it was determined that the hearing officer could not testify. On November 8th, Mr. Floridi appeared in court with newly enrolled counsel. Mr. Floridi's original counsel
remained of record but was unavailable on that date. Neither Ms. Floridi (whose

presence had been waived at the prior hearing) nor her counsel was present. The trial court allowed Mr. Floridi to testify, despite the absence of Ms. Floridi and her counsel. On December 5, 2007, the trial court rendered judgment, finding Ms. Floridi to be in contempt of court, and ordering her to pay one-half of the rentals generated, to pay the mortgage on the rental units and the line of credit on the family home, and to immediately return monies taken from the line of credit account. The judgment further assessed Ms. Floridi with reasonable attorney's
fees and costs. The judgment also denied Ms. Floridi's rule for contempt filed against Mr. Floridi.

On December 17, 2007, Ms. Floridi filed a motion for new trial. During the pendency of the motion, on February 28, 2008, Mr. Floridi filed a rule for contempt, alleging that Ms. Floridi had failed to comply with the orders of the December 5, 2007 judgment. Ms. Floridi's motion for new trial and Mr. Floridi's rule for contempt were heard on May 2, 2008. On June 2, 2008, the trial court rendered judgment, denying Ms. Floridi's motion for new trial and granting Mr. Floridi's rule, finding Ms. Floridi to be in contempt for failure to comply with the December 5, 2007 judgment. Ms. Floridi has appealed from that judgment. In this appeal, Ms. Floridi alleges that the trial court erred in allowing
defendant to re-open his case and present testimony, and that the trial court erred in denying her motion for new trial.

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A discretionary basis for a new trial is set forth in La. C.C.P. art. 1973, which authorizes the trial court to grant a new trial in any case in which there are

good grounds for it. Jackson v. Home Depot, Inc., 906 So.2d 721, 2004-1653 (La.
App. 1 Cir. 6/10/05). An appellate court has the authority to determine whether a

trial judge abused his discretion in not granting a new trial. Ziille v. Brae Asset

Fund, L.P., 2009 WL 91587, 08-646 (La. App. 5 Cir. 1/13/09).
It appears that, at the very least, there was some miscommunication between the court, the respective parties, and their attorneys, and that as a result of that miscommunication, Ms. Floridi's attorney was not present at the hearing. The trial court however allowed Mr. Floridi to testify, even though plaintiff's attorney was not present to cross-examine the witness. The record supports a determination that the failure of Ms. Floridi's attorney to appear was a result of such miscommunication. In such a circumstance, the trial court erred in allowing Mr. Floridi to testify at the November 8th hearing, and in failing to grant a new trial.

Compare Cashback, Inc. v. Herring, 27805 (La. App. 2 Cir. 2/28/96), 669 So.2d 693.1
Mr. Floridi, in brief, challenges the timeliness of the motion for new trial. The record shows that judgment was rendered on December 5, 2007, and that notice of the judgment was issued on December 6, 2007. The delays for new trial began to run on December 7, 2007. Excluding legal holidays, in this case Saturdays and Sundays2, Ms. Floridi's motion for new trial, filed on December 17, 2007, was timely. LSA-C.C.P. art. 1974. For the above discussed reasons, trial court's judgment of June 2, 2008,
denying plaintiff's motion for new trial and holding her in contempt for failure to
, In Cashback, Inc., supra, the appellate court found reversible error in the trial judge's denial of a motion for new trial. In that case, there was a miscommunication as to whether an extension of time to file an answer had been granted. As a result, defense attorney failed to file an answer and a default judgment was taken against him. 2 See LSA-R.S. 1:55; Consolidated Marketing, Inc. v. Busi, 256 So.2d 695 (La. App. 2 Cir. 1972).

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comply with the December 5* judgment that was the subject of the motion for new trial, is reversed and the matter is remanded for further proceedings. Costs are assessed against appellee.

REVERSED AND REMANDED

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EDWARD A. DUFRESNE, JR. CHIEF JUDGE
MARION F. EDWARDS

PETER J. FITZGERALD, JR. CLERK OF COURT GENEVIEVE L. VERRETTE CHIEF DEPUTY CLERK MARY E. LEGNON FIRST DEPUTY CLERK

SUSAN M. CHEHARDY CLARENCE E. McMANUS WALTER J. ROTHSCHILD FREDERICKA H. WICKER

JUDGES

FIFTH CIRCUIT 101 DERBIGNY STREET (70053) POST OFFICE BOX 489 GRETNA, LOUISIANA 70054
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TROY A. BROUSSARD DIRECTOR OF CENTRAL STAFF

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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILED ON OR DELIVERED THIS DAY APRIL & R TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

PETER E

ZGE )F CO

, JR T

08-CA-1306
MICHAEL A. ROSENBLATT ATTORNEY AT LAW POST OFFICE BOX 56655 NEW ORLEANS, LA 70156-6655 H. CRAIG CABRAL ATTORNEY AT LAW 3939 NORTH CAUSEWAY BOULEVARD SUITE 100 METAIRIE, LA 70002



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