RG Claitor's Realty v. Rigell

961 So. 2d 458, 2007 WL 1300184
CourtLouisiana Court of Appeal
DecidedMay 4, 2007
Docket2006 CA 2336
StatusPublished
Cited by4 cases

This text of 961 So. 2d 458 (RG Claitor's Realty v. Rigell) 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
RG Claitor's Realty v. Rigell, 961 So. 2d 458, 2007 WL 1300184 (La. Ct. App. 2007).

Opinion

961 So.2d 458 (2007)

R.G. CLAITOR'S REALTY
v.
Bill RIGELL and GJR, Inc. D/B/A Eagle Travel Consultants.

No. 2006 CA 2336.

Court of Appeal of Louisiana, First Circuit.

May 4, 2007.

*459 Richard A. Aguilar, Edward L. Fenasci, Jean-Paul Perrault, Ingrid M. Kemp, New Orleans, Counsel for Plaintiff/1st Appellee/2nd Appellant R.G. Claitor's Realty.

Thomas. M. Lockwood, Baton Rouge, Counsel for Defendant GJR, Inc.

A. Gregory Rome, Baton Rouge, Counsel for Defendant/1st Appellant/2nd Appellee Bill Rigell.

Before: PARRO, GUIDRY, and McCLENDON, JJ.

GUIDRY, J.

In this action on a lease, defendant, Bill Rigell (Rigell), appeals the trial court's judgment awarding plaintiff, R.G. Claitor's Realty (Claitor Realty), $12,428.55 in attorney fees and $2,772.72 in costs and expenses, plus interest. Additionally, Claitor Realty appeals the trial court's judgment, seeking an increase in the amount of attorney fees and requesting additional attorney fees for work performed on appeal. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 30, 1994, Rigell, for GJR, Ltd. as lessee, and Jon F. Claitor, for Claitor Realty as lessor, executed a lease agreement regarding office space located on Acadian Thruway in Baton Rouge, Louisiana. Thereafter, on June 12, 1998, Claitor Realty filed suit on the lease, naming Rigell and GJR, Inc. d/b/a Eagle Travel Consultants (GJR)[1] as defendants. In its *460 suit, Claitor Realty alleged GJR breached the lease agreement by vacating the premises prior to the expiration of the lease term and accordingly owed Claitor Realty for unpaid rent, common area maintenance charges, late fees, and attorney fees. Claitor Realty also asserted that Rigell was personally liable for the amount owed because at the time of the execution of the lease agreement, GJR was not incorporated. Rigell and GJR answered the petition, with GJR asserting a reconventional demand and claiming that Claitor Realty breached the lease agreement by disturbing GJR's peaceful possession of the lease premises.

On January 16, 2003, Rigell filed a motion for summary judgment, asserting that he was not personally liable for the lease obligation of GJR because only GJR bound itself as lessee, and the parties had agreed to waive any requirement for a personal guarantee on the lease. The trial court subsequently denied Rigell's motion. Thereafter, on December 8, 2005, Claitor Realty filed a motion for partial summary judgment, asserting that there was no genuine issue of material fact in dispute that GJR breached the lease agreement and Rigell was personally liable under the lease. Accordingly, Claitor Realty requested that the court adjudge Rigell liable for $46,900.00 in unpaid rent and common area maintenance charges, $2,814.00 in late charges, attorney fees, and interest. Claitor Realty also sought dismissal of GJR's reconventional demand, asserting that there was no evidence to support the facts that GJR alleged underlie its claim.

A hearing on the motion for partial summary judgment was set for March 20, 2006. On March 16, 2006, Rigell's attorney filed a motion to continue the hearing, asserting that he had been unable to prepare an opposition to the motion for partial summary judgment because of unanticipated absences of support staff in his firm. By the March 20, 2006 hearing, neither Rigell nor GJR had filed an opposition. The trial court denied Rigell's request for a continuance and, in a judgment dated April 24, 2006, granted Claitor Realty's motion for partial summary judgment, dismissing GJR's reconventional demand with prejudice and entering judgment against Rigell in the principal amount of $49,714.20, together with judicial interest, and attorney fees and costs to be fixed upon subsequent motion by Claitor Realty. Thereafter, Rigell filed a motion for suspensive appeal of the April 24, 2006 judgment.[2]

On May 19, 2006, Claitor Realty filed a motion to establish the amount of attorney fees, costs, and expenses due and to designate the judgment as final. Following a hearing, the trial court signed a judgment on September 14, 2006, in favor of Claitor Realty and against Rigell, awarding Claitor Realty $12,428.55 in attorney fees, plus $2,772.72 in costs and expenses, and ordering that this judgment, and the judgment dated April 24, 2006, be declared final, appealable judgments as contemplated by La. C.C.P. art. 1915 and that there was no just reason for delay of the appeal of these judgments. On October 13, 2006, Rigell filed a motion and order for suspensive appeal of the September 14, 2006 judgment.[3] Additionally, Claitor Realty filed a *461 motion and order for devolutive appeal of the September 14, 2006 judgment, requesting an increase in the attorney fees award and also requesting additional attorney fees for work performed on appeal.

Thereafter, Claitor Realty filed a motion to dismiss Rigell's appeal of the September 14, 2006 judgment for his failure to post the required suspensive appeal bond, and also filed, out of an abundance of caution, an answer to Rigell's appeal requesting additional attorney fees for work performed on appeal. This court, on December 19, 2006, issued a rule to show cause ex propio motu as to why the answer filed by Claitor Realty should not be dismissed pursuant to La. C.C.P. art. 2133. Claitor Realty's motion to dismiss and this court's show cause order were referred to the merits of this appeal.

DISCUSSION

Rigell's Appeal

As stated above, Claitor Realty filed a motion to dismiss Rigell's suspensive appeal from the September 14, 2006 judgment for failure to post the required suspensive appeal bond. In a suspensive appeal, the appellant must file a petition for appeal and furnish the security within the delay allowed in La. C.C.P. art. 2123. Wright v. Jefferson Roofing, Inc., 93-1217 (La.1/14/94), 630 So.2d 773, 775. When the appellant fails to timely furnish the security required for a suspensive appeal, the right vests in the appellee to obtain dismissal of the suspensive appeal and to secure the right to execute on the judgment. Blue, Williams & Buckley v. Brian Investments, Ltd., 96-1451, p. 5 (La.App. 1st Cir.6/20/97), 706 So.2d 999, 1002, writ denied, 97-2192 (La.11/21/97), 703 So.2d 1311. However, the suspensive appeal is not invalid merely because the appellant does not timely furnish security. Rather, this failure merely constitutes an irregularity or defect imputable to the appellant, which may form a basis for the appellee to move for dismissal of the suspensive appeal under La. C.C.P. art. 2161. See Blue, Williams & Buckley, 96-1451 at p. 5, 706 So.2d at 1002.

Since the elimination of the requirement of a bond for devolutive appeals, the courts have consistently held that this defect is not jurisdictional. Thus, where the appellant has failed to file the required bond, the suspensive appeal should be converted to a devolutive appeal, as long as the appellant has met those requirements. Clement v. Graves, 04-1831, p. 6 (La.App. 1st Cir.9/28/05), 924 So.2d 196, 200.

In the instant case, the judgment at issue was signed on September 14, 2006. Rigell filed his motion for suspensive appeal on October 13, 2006, which the trial court granted on October 16, 2006. At the time this case was submitted for decision on appeal, the records in the trial court indicated that Rigell had not posted the required security with regard to this suspensive appeal.[4]

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

Related

Politz v. Politz
149 So. 3d 805 (Louisiana Court of Appeal, 2014)
Ploue v. Intercoastal Financial Group, Inc.
9 So. 3d 356 (Louisiana Court of Appeal, 2009)
Fidelity National Bank of Baton Rouge v. Calhoun
11 So. 3d 1119 (Louisiana Court of Appeal, 2009)
RG Claitor's Realty v. Rigell
961 So. 2d 469 (Louisiana Court of Appeal, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
961 So. 2d 458, 2007 WL 1300184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rg-claitors-realty-v-rigell-lactapp-2007.