Richard C. Bentley v. Bobby Fanguy

• Court: Louisiana Court of Appeal
• Decided: January 13, 2010
• Docket: CM-0009-0822
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CM 09-822 consolidated with CA 09-1509

RICHARD BENTLEY

VERSUS

BOBBY FANGUY

************

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 69461 HONORABLE CHARLES LEE PORTER, DISTRICT JUDGE

JIMMIE C. PETERS JUDGE

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Elizabeth A. Pickett, Judges.

SUSPENSIVE APPEAL DISMISSED. APPEAL MAINTAINED AS DEVOLUTIVE. PLAINTIFF’S REQUEST FOR SANCTIONS DENIED.

Stephen Gary McGoffin Ryan M. Goudelocke Durio, McGoffin, Stagg Post Office Box 53485 Lafayette, LA 70505 (337) 233-0300 COUNSEL FOR DEFENDANT/APPELLEE: Bobby Fanguy Ed W. Bankston Attorney at Law Post Office Box 53485 Lafayette, LA 70505 (337) 237-4223 COUNSEL FOR PLAINTIFF/APPELLANT: Richard C. Bentley PETERS, J.

The defendant-appellee, Bobby Fanguy, moves to dismiss the suspensive

appeal of the plaintiff-appellant, Richard C. Bentley, based on the failure of the

plaintiff to post a timely suspensive appeal bond. For the reasons assigned, we grant

the motion to dismiss the suspensive appeal, but we maintain the appeal as

devolutive.

On February 3, 2009, the trial court entered a final written judgment on

damages. Notice of the signing of judgment was sent on February 19, 2009. The

plaintiff filed a notice of suspensive appeal on February 27, 2009, and the trial court

signed a subsequent order granting the appeal on March 9, 2009. The plaintiff’s

bond was set in the amount of $159,488.51. The defendant filed a motion to dismiss

the plaintiff’s suspensive appeal on July 13, 2009. The appeal was lodged with this

court on December 16, 2009.

In order to perfect a suspensive appeal, an appellant must obtain an order

granting the appeal and file the suspensive appeal bond within the delays set forth in

La.Code Civ.P. art. 2123. This article states, in pertinent part:

A. Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of any of the following:

(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.

(2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

Louisiana Code of Civil Procedure Article 2124(B)(1) provides the “[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 the interest allowed by the judgment to the date

1 the security is furnished, exclusive of the costs.” Louisiana Code of Civil Procedure

Article 2123 clearly sets forth that the suspensive appeal bond must be filed within

the applicable thirty-day time period. Because the judgment rendered was for a sum

of money, to perfect the suspensive appeal, the plaintiff was required to post the

suspensive appeal bond in the amount of the judgment within the thirty-day time

delay.

Here, suspensive appeal delays ran on April 2, 2009. The plaintiff untimely

filed his suspensive appeal bond on April 13, 2009. Although a suspensive appeal

may be dismissed for failure to timely file the bond, the appeal should be maintained

as devolutive. Strother v. Continental Cas. Co., 05-1094 (La.App. 3 Cir. 2/8/06), 923

So.2d 783. Accordingly, we dismiss the suspensive appeal and maintain the appeal

as devolutive. In addition, the plaintiff requests that sanctions be awarded against the

defendant for allegedly filing a frivolous motion to dismiss. Having found merit to

a portion of the motion to dismiss, we deny the request for sanctions.

SUSPENSIVE APPEAL DISMISSED. APPEAL MAINTAINED AS DEVOLUTIVE. PLAINTIFF’S REQUEST FOR SANCTIONS DENIED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.