I went to the First Circuit Court of Appeal today.
It was time to check in and see what was going on in Daniel Hoover’s appeal case. The record was due in the case on Friday, September 30th, 2011.
Today is Friday, October 7, 2011.
As of today, the First Circuit Court of Appeal does not have the record for the case from the 21st JDC.
Nor does the First Circuit Court of Appeal have an extension on file for the case.
Such tardy behavior by a litigant would get their case tossed out.
What is going on in the Daniel Hoover case?
Why is the 21st Judicial District Court acting in such a negligent manner?
Lets rewind the story a little bit of the way.
As you may recall, Daniel Hoover is a quadriplegic who survived a massive brain aneurysm. You can read his story of his “Life after an Aneurysm” here. Because his ex-wife was not allowing him to see his son, Daniel, through his curators (his parents), filed with the courts to establish custody and parenting time with his son. You can read about his “2009 Visitation Issues” here.
Daniel’s good friend Scott Lemoine wrote this introductory story about Daniel Hoover in 2009. Eventually, Scott Lemoine’s facebook postings got him arrested and jailed for ‘cyber stalking’. Several days later, Scott was then rearrested for allegedly soliciting a couple of other prisoners to murder Judge Wolfe.
By October of last year, those allegations, cyber stalking and solicitation, had fallen apart in federal court.
But for Daniel’s visitation case, the damage was done. Daniel was only allowed to see his son for four hours per month. Two hours on the second Sunday and two more hours on the fourth Sunday of every month.
This judgment was given by the Honorable Judge Bob Hester, ad hoc, on July 12th, 2010.
On October 15, 2010, Daniel Hoover filed an appeal from this judgment. Now here we are, almost a full year later, and the record still is not prepared or lodged with the appellate court.
CHAPTER 2. PROCEDURE FOR APPEALING
Art. 2121. Method of appealing
An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.
An order of appeal may be granted on oral motion in open court, on written motion, or on petition. This order shall show the return day of the appeal in the appellate court and shall provide the amount of security to be furnished, when the law requires the determination thereof by the court.
When the order is granted, the clerk of court shall mail a notice of appeal to counsel of record of all other parties, to the respective appellate court, and to other parties not represented by counsel. The failure of the clerk to mail the notice does not affect the validity of the appeal.
Amended by Acts 1961, No. 23, §1; Acts 1976, No. 202, §1.
Custody cases are supposed to be expedited by the court system.
In Daniel’s case, the court went into stall mode.
The first action that has to be performed after an appeal is filed is that the clerk of court estimates the costs to prepare the case. The clerk of court is supposed to estimate the costs ‘immediately’, but apparently the word immediately has a different meaning to the courts than it does to the ordinary citizens.
Art. 2126. Payment of costs
A. The clerk of the trial court, immediately after the order of appeal has been granted, shall estimate the cost of the preparation of the record on appeal, including the fee of the court reporter for preparing the transcript and the filing fee required by the appellate court. The clerk shall send notices of the estimated costs by certified mail to the appellant and by first class mail to the appellee.
B. Within twenty days of the mailing of notice, the appellant shall pay the amount of the estimated costs to the clerk. The trial court may grant one extension of the period for paying the amount of the estimated costs for not more than an additional twenty days upon written motion showing good cause for the extension.
C. The appellant may question the excessiveness of the estimated costs by filing a written application for reduction in the trial court within the first twenty-day time limit, and the trial court may order reduction of the estimate upon proper showing. If an application for reduction has been timely filed, the appellant shall have twenty days to pay the costs beginning from the date of the action by the trial court on application for reduction.
D. After the preparation of the record on appeal has been completed, the clerk of the trial court shall, as the situation may require, either refund to the appellant the difference between the estimated costs and the actual costs if the estimated costs exceed the actual costs, or send a notice by certified mail to the appellant of the amount of additional costs due, if the actual costs exceed the estimated costs. If the payment of additional costs is required, the appellant shall pay the amount of additional costs within twenty days of the mailing of the notice.
E. If the appellant fails to pay the estimated costs, or the difference between the estimated costs and the actual costs, within the time specified, the trial judge, on his own motion or upon motion by the clerk or by any party, and after a hearing, shall:
(1) Enter a formal order of dismissal on the grounds of abandonment; or
(2) Grant a ten day period within which costs must be paid in full, in default of which the appeal is dismissed as abandoned.
F. If the appellant pays the costs required by this Article, the appeal may not be dismissed because of the passage of the return day without an extension being obtained or because of an untimely lodging of the record on appeal.
Amended by Acts 1976, No. 708, §2; Acts 1977, No. 198, §2, eff. Jan. 1, 1978; Acts 1978, No. 449, §1, eff. Jan. 1, 1979; Acts 1984, No. 937, §1; Acts 1995, No. 105, §1.
In Daniel’s case, ‘immediately’ meant NINE MONTHS.
That’s NINE ‘enough time to have a baby’ MONTHS.
The court then demanded that Daniel Hoover pay $7,200 to have the appeal prepared.
Daniel, through his curators, his parents, countered by refiling for pauper status.
Judge Morrison then denied Daniel’s request for pauper status because Daniel was already in pauper status. Curious that the clerk of court did not recognize that fact. The issue of payment resolved, on July 12th, 2011, Vicky Herring, the Deputy Clerk of Court for the 21st Judicial District Court sent out the much delayed Notice of Appeal. The notice said:
Notice is hereby given that on October 26, 2010 upon motion of defendant an order of appeal was entered on October 15, 2010, granting an appeal from the July 27, 2010.
Returnable to the First Circuit Court of Appeal August 26th, 2011.
The leaves blew, the grass grew. August 26th came and went. No record was produced. I stayed at the First Circuit Court of appeals til closing on Friday the 26th to see if a record would come in.
On Friday, September 9th, I checked with the appealate court again. Still no record.
This time, I asked the Chief Deputy Clerk, Rodd Naquin, what the status of the case was.
Mr. Naquin called the lower court. He reported back that they had obtained a 30 day extension in the case from the trial judge. According to Mr. Naquin, he had not yet received any paperwork from the lower court confirming that extension.
On September 12th, the First Circuit court of appeal received a document from the lower court titled “Request for 1st Extension of Return Date”. The document was filed with the Livingston parish clerk of court on August 31, 2011. The document stated:
“I, Vicky Herring, Deputy Clerk for the 21st Judicial District Court, Parish of Livingston, respectfully represent to this Honorable Court that the record in the above entitled and numbered cause returnable to the Court of Appeal, First Circuit, ahs not been completed for the reason that the transcripts have not been filed, and that a delay until the 30th day of September , 2011, is necessary to complete the same…
Considering the foregoing application, it is hereby ordered that the return on the above appeal be extended from August 26, 2011 until September 30, 2011, for the completion of the record.”
A first extension?
It seems that they are already anticipating that there will be a second, third and fourth extension. Perhaps we should start a pool as to how much longer the case can possibly be extended?
The court also failed to notify both the appeals court or any of the litigants of the change in deadline.
The leaves blew, the grass grew. September 30th came and went. No record was produced.
I went to the First Circuit Court of appeals today, October 7th. They had no record. They had not extension. Once again, nothing but silence from the lower court.
Mr. Naquin got his staff to try to contact the lower court. After about 30 minutes of waiting, the appeals court was obligated to leave a message with the lower court asking them to contact them about Daniel’s case.
It is very disappointing that the appeals court does not have a better process in place to monitor the cases that have been appealed.