Rodney Brack v. Michael A. Ferrington

• Court: Louisiana Court of Appeal
• Decided: February 16, 2005
• Docket: CM-0005-0013
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

05-13

RODNEY BRACK, ET AL.

VERSUS

MICHAEL A. FERRINGTON, ET AL.

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APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ALLEN, NO. 2003-140, HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

JIMMIE C. PETERS JUDGE

Court composed of Jimmie C. Peters, Billy H. Ezell, and J. David Painter, Judges.

REMANDED.

Nahum D. Laventhal Attorney at Law 3421 N. Causeway Blvd., #800 Metairie, LA 70002 (504) 837-9107 COUNSEL FOR DEFENDANTS/APPELLEES: Michael A. Ferrington Wisner Minnow Hatchery, Inc. Nationwide Agribusiness Insurance Company Brian Steele Lestage Hall, Lestage Post Office Box 880 DeRidder, LA 70634 (337) 463-8692 COUNSEL FOR DEFENDANT/APPELLEE: American Interstate Insurance Company

John Ezell Jackson Attorney at Law Post Office Box 1239 Lake Charles, LA 70602 (337) 433-8866 COUNSEL FOR PLAINTIFFS/APPELLANTS Rodney Brack Shannon Brack PETERS, J.

The defendants Michael A. Ferrington, Wisner Minnow Hatchery, Inc., and

National Agribusiness Insurance Company, have filed a motion to remand this matter

to the trial court to allow the trial court to revisit its ruling granting pauper status to

plaintiffs, Rodney Brack (who appeared in the litigation to exert his individual claim,

and as the administrator of the estate of his minor children, Zack, Garrett, and

Savannah Brack) and Shannon Brack. For the following reasons, we grant the motion

to remand.

DISCUSSION OF THE RECORD

A trial on the merits resulted in a money judgment against the defendants and

in favor of the plaintiffs. Thereafter, the plaintiffs timely sought and obtained a

devolutive appeal from that judgment. The trial court signed an order granting the

appeal on October 8, 2004. In their January 4, 2005 motion to remand, the defendants

assert that in October of 2004 they paid the trial court judgment in full. In doing so,

they paid the plaintiffs $422,256.87. The plaintiffs do not dispute that they received

substantial sums in satisfaction of the judgment. The defendants assert that, given

the money now available to the plaintiffs for the payment of accrued cost of court, the

plaintiffs are no longer entitled to pursue this litigation in forma pauperis.

OPINION

Once the trial court signs an order for a devolutive appeal, it loses jurisdiction

to entertain a motion to traverse the pauper status of a party. La.Code Civ.P. art.

2088. Therefore, the defendants’ appropriate remedy is to seek a remand of this

appeal by this court to the trial court for a hearing on a motion to traverse.

While acknowledging the receipt of substantial sums of money, the plaintiffs

1 assert that the motion to remand should be denied as being untimely. In support of

their position, the plaintiffs direct us to McKellar v. Mason, 154 So.2d 237 (La.App.

4 Cir. 1963), and argue that had the defendants paid the judgment during the

suspensive appeal delays, they would have had ample opportunity to file the motion

to traverse the pauper status prior to the plaintiffs’ filing of their motion for appeal.

We do not disagree with the decision in McKellar, but find it distinguishable

from the instant case. In McKellar, the plaintiff had been granted pauper status at the

beginning of the litigation and at the trial nine months later, the defendant discovered

evidence suggesting that his financial status was different from that which he had

asserted in his affidavit of poverty. Rather than immediately act on that newly

discovered evidence, the defendant waited until after the plaintiff obtained a

devolutive appeal and then sought a remand. The fourth circuit found this delay fatal

to the request for a remand.

The matter before us is not one in which the plaintiffs are alleged to have

initially been improperly granted pauper status. Rather, it is one wherein the

plaintiffs’ financial status changed as a result of the payment of a judgment. In

Theriot v. Castle, 335 So.2d 43 (La.App. 3 Cir. 1976), this court granted a motion to

remand filed by the defendant who paid the judgment after an appeal was granted.

In doing so, this court stated that, “(i)n view of the recent change in the plaintiff’s

financial condition, we believe that defendant is entitled to an opportunity to traverse

the right of the plaintiff to proceed with her appeal in forma pauperis.” Id. at 44.

In considering the application of the holding in Theriot to the instant case, we

take cognizance of the fact that Theriot is silent concerning the delay between the

granting of the appeal and the filing of the motion for remand. In the instant case, the

2 trial court granted the order of appeal October 8, 2004, and yet the defendants did not

file their motion to remand in this court until January 4, 2005. However, in Simon v.

Calvert, 284 So.2d 656 (La.App. 3 Cir. 1973), an order permitting the appellant to

proceed in forma pauperis was signed by the trial court on March 12, 1973, but the

appellee did not attempt to traverse the pauper status until October 17, 1973. This

court rejected the appellant’s argument that the motion to remand was not filed timely

even though the motion was not filed until two days following the lodging of the

appellate record in this court. Thus, in the instant case, where the motion to remand

was filed within three months of the granting of the order of appeal and prior to the

lodging of the record, we find that the defendants’ motion is timely filed.

DISPOSITION

For the foregoing reasons, we remand this matter to the trial court for a hearing

on the plaintiffs’ pauper status.