Ricky Thibodeaux v. Evangeline Parish School Board

• Court: Louisiana Court of Appeal
• Decided: October 15, 2008
• Docket: CA-0008-1065
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

08-1065

RICKY THIBODEAUX, ET AL.

VERSUS

EVANGELINE PARISH SCHOOL BOARD, ET AL.

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APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 06-C-2589-D HONORABLE DONALD W. HEBERT, DISTRICT JUDGE

MARC T. AMY JUDGE

Court composed of John D. Saunders, Jimmie C. Peters, and Marc T. Amy, Judges.

MOTION TO DISMISS APPEAL DENIED.

Harold J. Adkins Jon Keith Guice Hammonds & Sills Post Office Box 65236 Baton Rouge, LA 70896 (225) 923-3462 COUNSEL FOR DEFENDANTS/APPELLANTS: Evangeline Parish School Board, Louisiana Public Schools Risk Management Agency, Inc.

Katherine M. Loos Briney & Foret Post Office Drawer 51367 Lafayette, LA 70505 (337) 237-4070 COUNSEL FOR DEFENDANTS/APPELLANTS: Lawrence P. Broussard, Laidlaw Transit, Inc., and Laidlaw Transit Management Patrick C. Morrow, Sr. Morrow, Morrow, Ryan & Bassett Post Office Box 1787 Opelousas, LA 70571 (337) 948-4483 COUNSEL FOR PLAINTIFFS/APPELLEES: Ricky Thibodeaux, individually, and on behalf of his minor child, Mindy Thibodeaux, and Brenda Quirk, individually, and on behalf of her minor child, Gearra Quirk AMY, Judge.

The plaintiffs-appellees, Ricky Thibodeaux, individually, and on behalf of his

minor child, Mindy Thibodeaux, and Brenda Quirk, individually, and on behalf of her

minor child, Gearra Quirk, move to dismiss the appeal of the defendants-appellants,

Lawrence P. Broussard, Laidlaw Transit, Inc., and Laidlaw Transit Management,

based on the failure of the defendants to appear or file oppositions to the plaintiffs’

motion to enforce a settlement/compromise. For the reasons assigned, we deny the

motion to dismiss the appeal.

In the plaintiffs’ motion to dismiss, plaintiffs contend that the defendants’

failure to appear, file oppositions, or to object to the form of the judgments from

which this appeal has been taken, means that the defendants voluntarily and

unconditionally acquiesced in the judgments being appealed. Louisiana Code of

Civil Procedure Article 2085 provides in pertinent part that “[a]n appeal cannot be

taken by a party who confessed judgment in the proceedings in the trial court or who

voluntarily and unconditionally acquiesced in a judgment rendered against him.”

This court has held the following:

Acquiescence in a judgment is never presumed, and the party alleging abandonment must establish by direct or circumstantial evidence that the party now appealing intended to acquiesce and to abandon his right to appeal. Major v. Louisiana Department of Highways, 327 So.2d 515 (La.App. 1st Cir. 1976). Furthermore, appeals are favored in law, and forfeiture of a party’s right to appeal through acquiesce[nce] should be decreed only when the party’s intention to acquiesce and to abandon his right of appeal is clearly demonstrated. Kendrick v. Garrene, 231 La. 462, 91 So.2d 603 (1956).

Hoyt v. State Farm Mut. Auto. Ins. Co., 413 So.2d 1003, 1005 (La.App. 3 Cir. 1982),

(quoting Koerner & Lambert, A Prof. Law Corp. v. Allstate Ins. Co., 363 So.2d 546

(La.App. 4 Cir. 1978)), writ denied, 423 So.2d 1180 (La.1982).

Here, the evidence presented by the plaintiffs does not clearly demonstrate an

acquiescence in the judgments being appealed by the defendants. Although the

plaintiffs allege that the defendants’ failure to appear, to submit oppositions, or to object to the form of the judgments has resulted in the defendants’ unconditional

acquiescence, we do not find that the above-mentioned alleged deficiencies in the

defendants’ prosecution of their defense support a finding that they have “voluntarily

and unconditionally acquiesced in [the] judgment rendered against [them].” La.Code

Civ.P. art. 2085. Additionally, the defendants have filed an opposition indicating that

they were not advised of the deficiencies in the prosecution of their defense. The

defendants also argue that they will suffer irreparable harm should their appeal be

dismissed. The record shows that defendants answered the plaintiffs’ original and

amended petitions, and the record is devoid of any indication that the defendants have

voluntarily and unconditionally acquiesced. Accordingly, we deny the motion to

dismiss.