Wanless v. Louisiana Real Estate Bd.

• Decision Date: 10 December 1962
• Docket Number: No. 46179,46179
• Citation: 147 So.2d 395,243 La. 801
• Parties: Eugene V. WANLESS v. LOUISIANA REAL ESTATE BOARD et al.
• Court: Louisiana Supreme Court

Page 395

147 So.2d 395

243 La. 801

Eugene V. WANLESS v. LOUISIANA REAL ESTATE BOARD et al.

No. 46179.

Supreme Court of Louisiana.

Dec. 10, 1962.

Thomas J. Taylor, Arthur L. Ballin, Sp. Counsel, New Orleans, for defendants-relators.

Eugene Stanley, New Orleans, for plaintiff-respondent.

HAMLIN, Justice.

In the exercise of our supervisory jurisdiction (Art. VII, Sec. 11, La.Const. of 1921, LSA) we directed Certiorari to the Court of Appeal, First Circuit, in order that we might review its judgment which reversed, annulled, and set aside a judgment of the trial court and ordered the defendants, the Louisiana Real Estate Board, through Robert A. Holloway, President thereof, Henry W. Couturie, Jr., Secretary, and John Wesley Glover, Director, Department of Occupational Standards, to issue to Eugene V. Wanless a renewal of his license to operate as a real estate broker as of February 8, 1961. ¹

The judgment of the Court of Appeal was rendered on March 14, 1962; ² counsel of record received copies on March 16, 1962, to which was attached the following statement from the Clerk of the Court of Appeal, First Circuit, dated March 16, 1962:

'MAR 16 1962

'Dear Sir:

'Attached you will find copy of opinion in a case in which you are an attorney of record.

'Your attention is invited to Rule XI of the Uniform Rules of the Courts of Appeal, especially to Section 1, which provides:

"Notice of judgment of the court will be delivered personally, or by certified or registered mail, by the clerk of court to at least one of counsel for each of the parties litigant, and applications for rehearing and briefs in support thereof must be filed in quintuple copies on or before the fourteenth calendar day after such delivery in person or by deposit in the U.S. mail, and no extension of time therefor shall be granted. (The rule has been amended following the word 'after' as follows: '(but not including) the date of such delivery in person or by deposit in the U.S. mail, and no extension of time therefor shall be granted.') If the applicant for rehearing desired further time for the filing of brief in support of this application, he shall request additional time in his application and the court may grant or refuse such delay in its discretion."

On March 30, 1962, an application for rehearing was filed in the Court of Appeal by the Louisiana Real Estate Board and the Department of Occupational Standards; they alleged that the judgment of the Court of Appeal rendered on March 16, 1962, reversing the judgment of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, was erroneous and contrary to law and prejudicial to them for certain reasons set forth in detail.

Eugene V. Wanless opposed the application for rehearing for the following reasons:

'1

'That, as will more fully appear by reference to the attached letter from Honorable John E. Miller, ³ Deputy Clerk of this Honorable Court, this Honorable Court handed down its decision in this matter on Thursday, March 14, 1962, and copies of this decision were mailed, return receipt requested, on March 15, 1962 to the attorneys of record in this case, namely, Eugene Stanley, Whitney Building, New Orleans; Thomas J. Taylor, Cigali Building, New Orleans; and Arthur Ballin, Carondelet Building, New Orleans.

'2

'On further showing that according to the said letter, application for rehearing on behalf of the Louisiana Real Estate Board and the Department of Occupational Standards by Thomas J. Taylor, Cigali Building, was received in the office of the Clerk of this Honorable Court and filed on March 30, 1962.

'3

'And on further suggesting that the said application for rehearing was not timely filed on or before the 14th calendar day after, but not including, date of deposit of the opinion in the United States mails by the Clerk of this Honorable Court, and same was not timely filed in accordance with the Uniform Rules, Courts of Appeal, Rule XI, Section 1, 8 LSA-R.S.; LSA-Const., Article 7, Section 24 (see Hullin v. Hale, La.App., 137 So.2d 709, and Interstate Oil Pipeline Co. vs. Friedman, La.App., 137 So.2d 700).

'4

'That the said application filed by defendant-appellees for rehearing not having been timely filed in accordance with the provisions of Article 7, Section 24 of the Louisiana Constitution etc., said application should not be entertained by this Honorable Court and should be denied.'

On April 23, 1962, the Court of Appeal refused to grant a rehearing, Judge G. Caldwell Herget dissenting.

The Louisiana Real Estate Board and the Department of Occupational Standards applied to this Court for Certiorari. Eugene V. Wanless moved to dismiss the application, alleging the same reasons for dismissal as those set forth in his opposition to the application for rehearing in the Court of Appeal, and additionally contending that the judgment of the Court of Appeal was final and had become executory long prior to the application for writ of review. Relators answered the motion, urging that the notice of the Clerk of the Court of Appeal bore the official stamp of March 16, 1962, and that the application for rehearing was placed in the mail on March 29, 1962 and received by the Clerk on March 30, 1962, the 14th day after March 16, 1962, therefore timely and in accordance with Rule XI; they further contended that, 'Whether or not the opinion of Court of Appeal, First Circuit was handed down on March 14, and whether or not the copy of said opinion was mailed by Registered mail on March 15, 1962 to the attorney of applicants for rehearing is immaterial. The stamp dated March 16, 1962 is conclusive evidence that the opinion and notice was not mailed prior to the date, but assuming that it was mailed on the 15th, the attorney for applicant for rehearing had every reason to rely on the date stamped on the notice, which is March 16, 1962, and not counting said day, the receipt of the application by the First Circuit Court on March 30th was timely.'

Having granted Certiorari, it is incumbent upon us to initially determine whether relators timely filed their application for rehearing in the Court of Appeal.

The Clerk of the Court of Appeal, First Circuit, made an admitted mistake by mailing on March 15, 1962 (See Footnote 3) the opinion rendered on March 14, 1962--one day earlier than he anticipated mailing it--and stamping the date of March 16, 1962 on the notice attached to the opinion. Relators governed themselves by the date of March 16, 1962 in calculating their time limit for application for rehearing; if such was the correct date, the application was timely filed on March 30, 1962 and in accordance with Rule XI, Section 1, of the Courts of Appeal, supra. If fourteen days were to be counted from March 15, 1962 (but not including)--the date upon which the opinion, and the attached notice dated March 16, 1962 were actually deposited in the mail--March 29, 1962 would have been the last day on which relators could have applied to the Court of Appeal for a rehearing.

Rule XI, Section 1, of the Courts of Appeal, which provides that applications for rehearing must be filed on or before the fourteenth calendar day after (but not including) the date of delivery of notice of judgment in person or by deposit in the U.S. mail, was enacted pursuant to Article VII, Section 24, of the Louisiana Constitution of 1921, which recites:

'* * * Appeals shall be returnable to the domiciles of the respective courts of appeal in the manner and within the time fixed by law. Notice of all judgments shall be Given to counsel of record; and The court shall provide by rule for the giving of such notices.' (Emphasis ours.)

The LSA-Code of Civil Procedure, Article 2166, provides in part that, 'In the courts of appeal the delay for applying for a rehearing commences to run the day after notice of the judgment has been Given by the court to counsel of record in the case.' (Emphasis ours.)

LSA-R.S. 13:4446 states that, 'B. Applications for rehearing in the courts of appeal must be filed on or before the fourteenth calendar day after notice of judgment has been Given, as required by Article VII, Section 24, of the Constitution.' (Emphasis ours.)

In Thibodeaux v. Kern, La.App., 143 So.2d 422, (July 5, 1962), the Court of Appeal, Third Circuit, interpreted Rule XI, Section 1, as follows:

'The opinion in this court was rendered on July 5, 1962 and deposited in the United States mail the same day.

'A return receipt shows that it was received by counsel for plaintiff-appellant on the following day, July 6, 1962. An application for rehearing by the plaintiff-appellant was mailed from Lafayette, Louisiana on July 19, 1962 and was received by and filed in this court on July 20, 1962.

'Applications for rehearing must be filed on or before the fourteenth calendar day after, but not including, the date of deposit in the United States mail. Rule XI, Section 1, Uniform Rules of the Courts of Appeal (1961), 8 LSA-R.S. See: Interstate Oil Pipe Line Company v. Friedman, La.App. 3 Cir., 137 So.2d 700; Genovese v. Abernathy, La.App. 3 Cir., 135 So.2d 802; American Bank & Trust Company v. Phillips, La.App. 3 Cir., 130 So.2d 753; Harper v. Borden Company, La.App. 3 Cir., 129 So.2d 330; Bailey v. Haymon, La.App. 3 Cir., 129 So.2d 203. Under the Uniform Rules, as now permitted by Art. VII, Section 24, LSA- Constitution, the delay for filing the application for rehearing commences on the date of mailing by the court and not of receipt by counsel. See: Lewis v. Bell, La.App. 3 Cir., 137 So.2d 706; Robertson v. Great American Indemnity Company, La.App. 3 Cir., 136 So.2d 550; 'Proceedings in appellate courts', 35 Tulane Law Review 585 (1961). For purposes of considering the timeliness of the application for rehearing, however, the date of filing is the date that such applications are physically delivered into actual custody of this court, not the date of mailing. Guarisco Construction Company v. Talley, La.App. 3 Cir., 126...