Polaris Engineering, Inc. v. Pelican Refining Company, LLC

• Court: Louisiana Court of Appeal
• Decided: August 31, 2011
• Docket: CA-0011-0656
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 11-656

POLARIS ENGINEERING, INC.

VERSUS

PELICAN REFINING COMPANY, LLC

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2006-2137 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

SYLVIA R. COOKS

JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John D. Saunders, Judges.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED. SUSPENSIVE APPEAL DISMISSED. APPEAL MAINTAINED AS DEVOLUTIVE.

Edward J. Fonti Jones, Tete, Fonti & Belfour Post Office Box 1930 Lake Charles, LA 70602-1930 (337) 439-8315 COUNSEL FOR DEFENDANT/APPELLANT: Pelican Refining Company, LLC Christopher Paul Ieyoub Plauche, Smith & Nieset Post Office Drawer 1705 Lake Charles, LA 70602 (337) 436-0522 COUNSEL FOR PLAINTIFF/APPELLEE: Polaris Engineering, Inc.

Tyson Brahm Shofstahl Adams & Reese 4500 One Shell Square New Orleans, LA 70139 (504) 581-3234 COUNSEL FOR THIRD PARTY/APPELLEE: James Rivers Ins. Co.

Thomas William Darling Attorney at Law 2223 Quail Run Drive, Ste C-2 Baton Rouge, LA 70808 (225) 663-6101 COUNSEL FOR THIRD PARTY/APPELLEE: Maryland Casualty Co. COOKS, Judge.

The plaintiff-appellee, Polaris Engineering, Inc. (Polaris), moves to dismiss the

suspensive appeal filed by the defendant-appellant, Pelican Refining Company, LLC.

(Pelican), based on Pelican’s failure to post a suspensive appeal bond. For the reasons

given herein, we grant the motion, ordering the dismissal of the suspensive appeal,

and maintain the appeal as devolutive.

Following the rendition of a judgment on December 14, 2010, Pelican filed a

motion for new trial, which the trial court denied. Thereafter, Pelican filed its motion

for a suspensive appeal. The trial court signed the order granting the suspensive

appeal on March 1, 2011, and in the order of appeal, set the amount of the suspensive

appeal bond for $6,875,000.00.

The record in this appeal was lodged in this court on May 31, 2011. Polaris

filed its Motion to Dismiss Suspensive Appeal, and to Maintain as Devolutive Appeal

in this court on July 1, 2011. In the motion, Polaris points out that Pelican has not

filed a suspensive appeal bond. Therefore, Polaris asks that this court dismiss the

suspensive appeal and maintain the appeal as devolutive.

In Strother v. Continental Casualty Co., 2005-1094 (La.App. 3 Cir. 2/8/06),

923 So.2d 783, the appellee moved to dismiss the suspensive appeal since the

appellants had failed to post any suspensive appeal bond. First, this court noted that,

ordinarily, a motion to dismiss a suspensive appeal due to the appellant’s failure to

post bond timely must be filed no later than three days after the lodging of the record

in the court of appeal or the return date, whichever is later pursuant to La.Code Civ.P.

art. 2161. Nevertheless, this court stated in Strother, “We find that when the appellant

has not filed any bond, a motion to dismiss the suspensive appeal is not untimely if

filed beyond the three day time period set forth in Article 2161.” 2005-1094, p. 2, 923

So.2d at 785. This court dismissed the suspensive appeal in Strother and maintained

the appeal as devolutive. Likewise, in the instant case, since Pelican has failed to post any suspensive appeal bond, we grant the motion, dismiss the suspensive appeal, and

maintain the appeal as devolutive.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED. SUSPENSIVE APPEAL DISMISSED. APPEAL MAINTAINED AS DEVOLUTIVE.

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