Obey Financial Group, Inc. v. Toria B. King

• Court: Louisiana Court of Appeal
• Decided: June 30, 2021
• Docket: CA-0021-0324
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 21-324

OBEY FINANCIAL GROUP, INC.

VERSUS

TORIA B. KING

**********

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 266,607 HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

BILLY H. EZELL

JUDGE

Court composed of Elizabeth A. Pickett, Billy H. Ezell, and Jonathan W. Perry, Judges.

SUSPENSIVE APPEAL DISMISSED; APPEAL MAINTAINED AS DEVOLTIVE. Richard Alan Rozanski Richard A. Rozanski, A.P.L.C. Post Office Box 13199 Alexandria, La 71315-3199 (318) 445-5600 COUNSEL FOR PLAINTIFF/APPELLEE: Obey Financial Group, Inc.

Charles E. Brumfield, Jr. Post Office Box 2848 Hammond, LA 70404 (985) 400-2185 COUNSEL FOR DEFENDANT/APPELLANT: Toria B. King EZELL, Judge.

Appellee-Plaintiff, Obey Financial Group, Inc. (Obey), filed a Motion to

Dismiss Suspensive Appeal granted to Appellant-Defendant, Toria B. King (Ms.

King), due to Ms. King’s failure to post bond. For the reasons discussed herein,

we grant Obey’s motion to dismiss the suspensive appeal and maintain the appeal

as a devolutive appeal.

The instant case arises from a Petition for Money Judgment filed by Obey

against Ms. King. On January 3, 2019, Ms. King executed a promissory note in

the amount of $53,451.93 with a security interest on property she owned. When

Ms. King defaulted on repaying the installments due on the note, Obey

commenced the instant litigation. Ms. King filed an Answer and Counterclaim.

Obey, as Plaintiff and as Defendant-in-Reconvention, filed two motions for

summary judgment. Obey also filed an Ex Parte Motion to Strike Defendant’s

Memorandum in Opposition to Summary Judgments. All three motions were

taken up on July 13, 2020, and all three motions were granted. Written judgments

were signed by the trial court on July 28, 2020. Counsel for Ms. King was served

Notice and Certificate of Signing on Judgment on November 2, 2020. Ms. King

filed a Motion and Order for Appeal on November 13, 2020. The trial court

signed the motion on November 20, 2020, designating the appeal as a suspensive

appeal. The trial court, however, did not set a bond.

In the trial court, Obey filed a Motion to Dismiss Suspensive Appeal on

December 23, 2020, asserting that the appeal was not in accordance with the law.

The motion was set for hearing on February 8, 2021. At the hearing, the trial court

requested that counsel for Obey submit an amount sufficient for the suspensive

appeal bond to be set, and the motion to dismiss was not taken up. Obey submitted a proposed Order to set the Suspensive Appeal Bond which was signed by the trial

court on February 9, 2021. The Order set the Suspensive Appeal Bond at

$78,090.93, and Ms. King was ordered to post same in the registry of the court

within fifteen calendar days from the signing of the Order.

Obey asserts that the deadline for Ms. King to post the bond with the trial

court was February 24, 2021, and that Ms. King failed to post the bond by the

deadline. Meanwhile, Obey filed a Motion to Withdraw Motion to Dismiss

Suspensive Appeal on May 19, 2021, in the trial court, which was granted on May

20, 2021.

The appeal record was received in this court and subsequently lodged on

May 26, 2021. On June 7, 2021, Obey filed the instant Motion to Dismiss

Suspensive Appeal, asserting that Ms. King’s suspensive appeal is not in

accordance with law. Obey asserts that pursuant to La.Code Civ.P. art.

2124(B)(1), “[w]hen the judgment is for a sum of money, the amount of the

security shall be equal to the amount of the judgment, including interest allowed by

the judgment to the date the security is furnished, exclusive of the costs.” Obey

also cites La.Code Civ.P. art. 2161, which reads:

An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.

2 Obey asserts that as of the date of this motion, Ms. King has failed to post

security. For the foregoing reasons, Obey requests that this court dismiss Ms.

King’s suspensive appeal.

In opposition to Obey’s motion, counsel for Ms. King indicates that he was

unable to attend the hearing setting an appeal bond due to his hospitalization with

Covid-19. Once he was released from the hospital, he filed a motion to extend the

date. According to Ms. King’s counsel, the motion was signed by the trial court

but due to delays in the mailing system, counsel did not receive the document until

after the delay had passed.

Ms. King asserts that since the elimination of the requirement of a bond for

devolutive appeals, the courts have consistently held that this defect is not

jurisdictional. See Willet v. Premier Bank, Nat’l Ass’n, 97-187 (La.App. 3 Cir.

3/24/97), 693 So.2d 2. Ms. King urges that the motion for appeal has been timely

filed in the instant case, and although no bond has been posted, the appeal should

be converted to a devolutive appeal.

As the delay for posting a bond for suspensive appeal has expired and the

record reflects that appellant, Toria B. King, has failed to post

a suspensive appeal bond, the motion to dismiss the suspensive appeal is

granted. See Strother v. Cont’l Cus.Co., 05-1094 (La.App. 3 Cir. 2/8/06), 923

So.2d 783. The suspensive appeal filed is dismissed, and the appeal is maintained

SUSPENSIVE APPEAL DISMISSED; APPEAL MAINTAINED AS DEVOLUTIVE.

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