Guillory v. ALLIED WASTE SERVICES, INC.

Louisiana Court of Appeal

Guillory v. ALLIED WASTE SERVICES, INC.

32 So. 3d 1024, 10 La.App. 3 Cir. 159, 2010 La. App. LEXIS 266, 2010 WL 711256

CourtLouisiana Court of Appeal

DecidedMarch 3, 2010

Docket10-159

StatusPublished

This text of 32 So. 3d 1024 (Guillory v. ALLIED WASTE SERVICES, INC.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Guillory v. ALLIED WASTE SERVICES, INC., 32 So. 3d 1024, 10 La.App. 3 Cir. 159, 2010 La. App. LEXIS 266, 2010 WL 711256 (La. Ct. App. 2010).

Pincite

Opinion

GREMILLION, Judge.

| ]The appellee, Andre Guillory, moves to dismiss the suspensive appeal filed by the appellants, Allied Waste Services, Inc., and AIG Domestic Claims, Inc. Finding merit to the appellee’s argument, we grant the motion to dismiss the suspensive appeal and maintain the appeal as devolutive.

After trial on the merits, the Office of Workers’ Compensation judge signed a written judgment on October 27, 2009. The record contains a certification from the OWC clerk’s office certifying that notice of the rendition of this judgment was mailed by the clerk’s office on October 29, 2009. No motion for new trial was filed. The appellants filed their motion for a suspensive appeal on November 13, 2009. The OWC judge signed the order of appeal and set the amount of the suspensive appeal bond on November 20, 2009. The record discloses that the suspensive appeal bond was posted by the appellants on December 23, 2009.

The appeal record was lodged in this court on February 9, 2010. The ap-pellee filed the instant motion to dismiss the suspensive appeal on February 10, 2010. The appellee contends that since the appellants filed their suspensive appeal bond untimely, the suspensive appeal should be dismissed. We agree.

Louisiana Code of Civil Procedure Art. 2123 requires that in order to perfect a suspensive appeal, the order of appeal must be granted and the suspensive appeal bond must be posted no later than thirty days from either the expiration of the delays for seeking a new trial or from the notice of denial of the motion for new trial. Since no motion for new trial was filed in this action, the appellants had thirty days from the expiration of the time for seeking a new trial, which is seven days, exclusive of holidays, from the mailing of the notice of judgment by the clerk’s office. La.Code Civ.P. art. 1974.

12As stated above, notice of the signing of the final judgment is certified by the OWC clerk’s office as having been mailed by certified mail to the attorneys of record on October 29, 2009. Thus, the delay for *1026 applying for a new trial expired on November 9, 2009. Therefore, the appellants had until December 9, 2009, to post their sus-pensive appeal bond. Having failed to post their bond until December 23, the bond was filed untimely. Therefore, we hereby grant the motion to dismiss the suspensive appeal.

However, even though this court finds that the suspensive appeal must be dismissed, when the appeal has been filed timely for a devolutive appeal, the appropriate remedy is to maintain the appeal as devolutive. See National Union Fire v. Harrington, 2002-192 (La.App. 3 Cir. 3/6/02), 810 So.2d 1279. Therefore, we hereby dismiss the suspensive appeal, but we maintain the appeal as devolutive.

SUSPENSIVE APPEAL DISMISSED; APPEAL MAINTAINED AS DEVOLU-TIVE.

Free access — add to your briefcase to read the full text and ask questions with AI

GREMILLION, Judge.

| ]The appellee, Andre Guillory, moves to dismiss the suspensive appeal filed by the appellants, Allied Waste Services, Inc., and AIG Domestic Claims, Inc. Finding merit to the appellee’s argument, we grant the motion to dismiss the suspensive appeal and maintain the appeal as devolutive.

After trial on the merits, the Office of Workers’ Compensation judge signed a written judgment on October 27, 2009. The record contains a certification from the OWC clerk’s office certifying that notice of the rendition of this judgment was mailed by the clerk’s office on October 29, 2009. No motion for new trial was filed. The appellants filed their motion for a suspensive appeal on November 13, 2009. The OWC judge signed the order of appeal and set the amount of the suspensive appeal bond on November 20, 2009. The record discloses that the suspensive appeal bond was posted by the appellants on December 23, 2009.

The appeal record was lodged in this court on February 9, 2010. The ap-pellee filed the instant motion to dismiss the suspensive appeal on February 10, 2010. The appellee contends that since the appellants filed their suspensive appeal bond untimely, the suspensive appeal should be dismissed. We agree.

Louisiana Code of Civil Procedure Art. 2123 requires that in order to perfect a suspensive appeal, the order of appeal must be granted and the suspensive appeal bond must be posted no later than thirty days from either the expiration of the delays for seeking a new trial or from the notice of denial of the motion for new trial. Since no motion for new trial was filed in this action, the appellants had thirty days from the expiration of the time for seeking a new trial, which is seven days, exclusive of holidays, from the mailing of the notice of judgment by the clerk’s office. La.Code Civ.P. art. 1974.

12As stated above, notice of the signing of the final judgment is certified by the OWC clerk’s office as having been mailed by certified mail to the attorneys of record on October 29, 2009. Thus, the delay for *1026 applying for a new trial expired on November 9, 2009. Therefore, the appellants had until December 9, 2009, to post their sus-pensive appeal bond. Having failed to post their bond until December 23, the bond was filed untimely. Therefore, we hereby grant the motion to dismiss the suspensive appeal.

However, even though this court finds that the suspensive appeal must be dismissed, when the appeal has been filed timely for a devolutive appeal, the appropriate remedy is to maintain the appeal as devolutive. See National Union Fire v. Harrington, 2002-192 (La.App. 3 Cir. 3/6/02), 810 So.2d 1279. Therefore, we hereby dismiss the suspensive appeal, but we maintain the appeal as devolutive.

SUSPENSIVE APPEAL DISMISSED; APPEAL MAINTAINED AS DEVOLU-TIVE.

Cite This Page — Counsel Stack

Bluebook (online)

32 So. 3d 1024, 10 La.App. 3 Cir. 159, 2010 La. App. LEXIS 266, 2010 WL 711256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guillory-v-allied-waste-services-inc-lactapp-2010.

Opinion

Related

Cite This Page — Counsel Stack