Marlon Eaglin v. Eunice Police Department

• Court: Louisiana Court of Appeal
• Decided: December 28, 2016
• Docket: CM-0016-0955
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CM 16-955

MARLON EAGLIN

VERSUS

EUNICE POLICE DEPARTMENT, ET AL.

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APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. C-161677-A HONORABLE JAMES PAUL DOHERTY, JR., DISTRICT JUDGE

ULYSSES GENE THIBODEAUX

CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.

MOTION TO REMAND APPEAL GRANTED.

John Fayne Wilkes, III Joy Cantrelle Rabalais Allison M. Ackal Kyle Choate Taylor Stover Borne, Wilkes & Rabalais Post Office Box 4305 Lafayette, LA 70502-4305 (337) 232-1604 COUNSEL FOR DEFENDANT/APPELLEE: Eunice Police Department City of Eunice Chief RandyFontenot Harold Dewey Register, Jr. Attorney at Law 216 Rue Louis XIV Lafayette, LA 70598-0214 (337) 981-6644 COUNSEL FOR PLAINTIFF/APPELLEE: Marlon Eaglin Paul Powell THIBODEAUX, Judge.

The Defendants-Appellees, the City of Eunice and Chief Randy Fontenot, in

his official capacity as chief of police for the City of Eunice, filed a Motion for

Remand to Rule Paul Powell to Show Cause Why He Should Be Allowed to

Proceed In Forma Pauperis Without an Affidavit of Poverty.

On an exception of prescription filed by the Appellees, the trial court

dismissed the claims made by the Plaintiff-Appellant, Marlon Eaglin, against the

Appellees, in Mr. Eaglin’s amended petition. Appellant filed a motion for appeal;

the trial court granted the order of appeal which ordered “[a]n appeal be granted in

this case on behalf of PAUL POWELL to the Third Circuit Court of Appeal of the

State of Louisiana with the appeal being returnable in accordance with the law.”

Despite the lack of any order granting Appellant pauper status, the Notice of

Appeal indicates that the appeal was being filed in forma pauperis. Therefore, the

Appellees filed the motion to remand sub judice asking for this court to remand the

appeal for the Appellees to traverse Mr. Eaglin’s right to take his appeal as a

pauper.

As correctly noted by the Appellees, La.Code Civ.P. art. 2088 does not

provide the trial court with authority to review a party’s pauper status once the

order of appeal has been granted. Moreover, as pointed out by the Appellees, since

the record does not show that the Appellees had the opportunity to traverse

Appellant’s pauper status prior to the granting of the order of appeal, the

appropriate remedy is for the Appellees to file this motion to remand the appeal for

the purpose of traversing Appellant’s pauper status. See Ainsworth v. State Farm

Mut. Auto. Ins. Co., 389 So.2d 1376 (La.1980). While it appears from the limited

documents provided to this court by the Appellees attached to their motion to remand that Appellant neither sought nor was granted pauper status, the Notice of

Appeal sent to this court and to the Louisiana Supreme Court by the Office of the

Clerk of Court for the Twenty-Seventh Judicial District Court, Parish of St. Landry,

indicates that the appeal has been taken in forma pauperis. Since the appellate

court is a court of record and cannot determine from the limited information

provided whether this Notice of Appeal is in compliance with a heretofore

unknown pauper order or whether the Notice of Appeal is in error in indicating that

the appeal is taken in forma pauperis, we find that the appropriate remedy is to

remand the appeal for the correction of the record or the traversal of Appellant’s

pauper status. Therefore, we grant the Motion to Remand for the traversal of

Appellant’s pauper status, if he has been granted pauper status, or, alternatively,

for the correction of the record to reflect that the appeal is not taken in forma

pauperis and for any further action necessary for appeals which have not been

taken in forma pauperis.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.