Agilus Health (Albert Atwood, Jr.) v. Dresser, Inc.

• Court: Louisiana Court of Appeal
• Decided: April 14, 2010
• Docket: WCA-0010-0317
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-317

AGILUS HEALTH (ALBERT ATWOOD, JR.)

VERSUS

DRESSER, INC., ET AL.

************

APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02 PARISH OF RAPIDES, NO. 07-04952 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

DAVID E. CHATELAIN* JUDGE

Court composed of Oswald A. Decuir, J. David Painter, and David E. Chatelain, Judges.

MOTION TO DISMISS SUSPENSIVE APPEAL AND CONVERT TO DEVOLUTIVE APPEAL DENIED.

Eric J. Waltner D. Paul Gardner, Jr. Allen & Gooch Post Office Box 81129 Lafayette, Louisiana 70598-1129 (337) 291-1430 Counsel for Defendants/Appellants: Liberty Mutual Insurance Company Dresser, Inc.

* Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. Edward R. Wicker, Jr. Barrasso, Usdin, Kupperman, Freeman and Sarver 909 Poydras Street, Suite 1800 New Orleans, Louisiana 70112 (504) 589-9700 Counsel for Defendants/Appellants: Liberty Mutual Insurance Company Dresser, Inc.

Edward E. Roberts, III Neblett, Beard & Arsenault Post Office Box 1190 Alexandria, Louisiana 71309 (318) 487-9874 Counsel for Plaintiff/Appellee: Agilus Health

R. Bray Williams Joseph Payne Williams, Sr. Williams Family Law Firm, L.L.C. Post Office Box 15 Natchitoches, Louisiana 71458-0015 (318) 352-6695 Counsel for Plaintiff/Appellee: Agilus Health CHATELAIN, Judge.

The appellee, Agilus Health, Inc., moves to dismiss the suspensive appeal of

the appellants, Dresser, Inc. and Liberty Mutual Insurance Company, and to convert

their appeal to a devolutive appeal. The appellee contends that the appellants posted

their suspensive appeal bond untimely. Finding that the posting of the bond was

timely in accordance with La.R.S. 23:1310.5, we deny the motion to dismiss.

Following trial of this matter, the workers’ compensation judge (WCJ)

rendered a money judgment against the appellants, finding that the appellee had been

underpaid by the appellants in the sum of $610.60 for health care bills associated with

a work-related injury to Albert Atwood, Jr. The WCJ also cast the appellants with a

$2,000.00 statutory penalty and with $3,000.00 in attorney fees.

The WCJ signed the written judgment on December 15, 2009. On

December 16, 2009, the trial court mailed notice of this judgment to all counsel of

record. No motion for new trial was filed. The appellants filed their motion and

order for appeal on January 6, 2010, and the order was granted by the WCJ that same

date. Appellants also filed on that date a Motion and Order to Set Bond for

Suspensive Appeal, which order was signed by the WCJ setting a hearing for

February 8, 2010.

The hearing on the bond amount was conducted on February 8, 2010, at which

time the WCJ set the bond amount. On February 10, 2010, the WCJ signed an order

setting the bond amount at $5,973.00. The appellants posted the suspensive appeal

bond on March 2, 2010. The record was subsequently lodged in this court.

The appellee filed a motion to convert the appeal from suspensive to

devolutive, arguing that the appellants failed to post their suspensive appeal bond

1 within thirty days of notice of the final judgment, as provided in La.Code Civ.P.

2123. The appellants filed an opposition memorandum in this court, contending that

the suspensive appeal bond was timely posted within thirty days of the notice of the

setting of the bond’s amount as provided in La.R.S. 23:1310.5(C).

In a case involving substantially similar facts, this court has issued an opinion

on this date, finding that the posting of the suspensive appeal bond within thirty days

of the notice of the setting of the bond amount was timely. Agilus Health (Kenneth

McKeithen) v. Dresser, Inc., 10-313 (La.App. 3 Cir. 4/14/10), ___ So.3d ___. For

those same reasons, we hereby deny the motion to dismiss the appellants’ suspensive

appeal.

MOTION TO DISMISS SUSPENSIVE APPEAL AND CONVERT TO DEVOLUTIVE APPEAL DENIED.