Rose Dove Egle v. John M. Egle, Jr.

• Court: Louisiana Court of Appeal
• Decided: February 7, 2007
• Docket: CA-0006-1550
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

06-1550

ROSE DOVE EGLE VERSUS JOHN M. EGLE

********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 980015 HONORABLE KRISTIAN DENNIS EARLES

********** J. DAVID PAINTER JUDGE

**********

Court composed of John D. Saunders, Jimmie C. Peters, and J. David Painter, Judges.

MOTION TO DISMISS DENIED.

Michelle F. Plauche! H. Alston Johnson, III Thomas H. Kiggans Shelton Dennis Blunt Christine S. Goldberg Phelps Dunbar, LLP Post Office Box 4412 Baton Rouge, LA 70821-4412 (225) 346-0285 COUNSEL FOR DEFENDANT/APPELLANT: Smith Tri-Tech Fishing Services Group of Smith Drilling & Completions, business unit of Smith International, Inc. Jan K. Frankowski Walter C. Thompson, Jr. Nicholas D. Doucet Barkely & Thompson, L.C. Mark P. Seyler 1515 Poydras Street, Suite 2350 New Orleans, LA 70112 (504) 595-3350

Bob F. Wright James Parkerson Roy Domengeaux, Wright, Roy & Edwards Post Office Box 3668 Lafayette, LA 70502 (337) 233-3033

Julius P. Hebert Hebert & Marceaux Bank One Tower 8026 Main Street, Suite 102 Houma, LA 70360 (504) 876-4324 COUNSEL FOR PLAINTIFFS/APPELLEES: Rose Dove Egle, individually and as duly appointed tutrix of her minor children, John M. Egle, Jr., and Lauren E. Egle; Michelle A. Egle; and Daniel A. Rees, trustee of the Egle Trusts

Phillip C. Kobetz Porter, Denton & Kobetz 100 Asma Boulevard, Building 1, Suite 385 Lafayette, LA 70508 (337) 234-1140 COUNSEL FOR DEFENDANT/ APPELLEE: John M. Egle

Leslie J. Schiff Schiff Law Corporation Post Office Drawer 900 Opelousas, LA 70571 (337) 942-9771 COUNSEL FOR DEFENDANTS/ APPELLEES: Metal Technology Incorporated and Clint L. Pierson, Jr.

John H. Weinstein Thomas E. St. Germain Post Office Box 8 Opelousas, LA 70571 (337) 948-4700 COUNSEL FOR DEFENDANT/ APPELLEE: Energy Environmental, L.L.C. PAINTER, Judge.

Plaintiffs-appellees, Rose Dove Egle, individually and as tutrix of her

minor children; Michelle A. Egle; and Daniel A. Rees, as trustee of the Egle

Trusts (Egle), have filed a motion to dismiss the instant suspensive appeal and

to maintain the appeal as devolutive. For the reasons given below, we deny the

motion.

The instant appeal in this protracted litigation pertains to an attempt by

Egle to recover a greater portion of the proceeds from the sale of Tri-Tech

Fishing Services, L.L.C., of which they were part owners, to defendant-

appellant, Smith International, Inc. (Smith). The trial court entered judgment

on June 1, 2004 regarding the aforementioned issue. Smith sought a

suspensive appeal the day the judgment was rendered. On August 2, 2004,

Smith posted a bond of $4,800,000 to satisfy the $3,468,919.29 judgment, plus

judicial interest. However, after consideration this court dismissed the appeal

and remanded the case to the trial court for hearing on Smith’s timely filed

motion for judgment notwithstanding the verdict (JNOV). Egle v. Egle, 05-

0531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780.

After remand, the trial court denied Smith’s JNOV on March 14, 2006.

Notice of judgment was mailed on March 29, 2006. On April 20, 2006, Smith

timely filed a motion and order for a suspensive appeal. The motion and order

include an exhibit containing the bond posted on August 2, 2004. Smith stated

in the motion for appeal that the earlier posted suspensive appeal bond was still

in effect.

This appeal was lodged on December 5, 2006. Egle timely filed their

motion to dismiss on December 8, 2006. La.Code Civ.P. art. 2161. Egle seeks

1 the dismissal of the suspensive appeal contending that the August 2, 2004

appeal bond is no longer effective by its own terms. In the alternative, Egle

avers that if the bond is effective, then the amount was insufficient to secure

the judgment and interest. Egle argues that an appeal bond cannot be

supplemented outside the thirty day period established by La.Code Civ.P. art.

2123 and that the appellate court should convert this matter to a devolutive

appeal on the aforementioned grounds.

Egle filed a similar motion with the trial court. The trial court heard and

denied the motion to dismiss on August 10, 2006. In addition, the trial court

granted Smith leave to supplement its bond with a $500,000 rider agreement.

Egle contends that the August 2, 2004 bond is expired by its own terms.

The pertinent section of the bond reads:

NOW THEREFORE, the condition of this obligation is such that the said Smith International, Inc. shall prosecute its appeal and shall satisfy the judgment in full together with costs, interest, and damages for delay, if for any reason the appeal is dismissed or if the judgment is affirmed or shall satisfy in full any modification of the judgment and such costs, interest, and damages as the said Court of Appeal may adjust and award; but if the Principal does not satisfy the judgment aforesaid in its place, then the Surety shall be liable for the amount of the judgment aforesaid in its place...

The trial court retained jurisdiction to consider Egle’s motion to dismiss

and Smith’s motion to supplement appeal bond after Smith filed its motion and

order for suspensive appeal. La.Code Civ.P. art. 2088; Ellis v. Dozier, 337

So.2d 659 (La.App. 3 Cir. 1976). The lower court allowed Smith to

supplement the appeal bond.

The appeal of the subject judgment was found to be premature by this court

in Egle v. Egle, 05-0531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780. This court

found that the timely filed JNOV must be considered by the trial court before

2 the appeal could be perfected. In its present posture the appeal has been

perfected, and it is at this point the suspensive appeal bond would lapse if the

appeal were it dismissed or the judgment, plus interest is satisfied.

Under La.Code Civ.P. art. 5124:

Within four days, exclusive of legal holidays, of the rendition of judgment holding the original bond insufficient or invalid, or at any time if no rule to test the original bond has been filed, the party furnishing it may correct any defects therein by furnishing a new or supplemental bond, with either the same surety if solvent, or a new or additional surety.

The new or supplemental bond is retroactive to the date the original bond was furnished, and maintains in effect the order, judgment, writ, mandate, or process conditioned on the furnishing of security.

The sufficiency of the suspensive appeal bond was tested with the lower

court in Egle’s motion to dismiss and Smith’s motion to supplement filed and

adjudicated below. La.Code Civ.P. art. 5123; Dolhonde v. Dolhonde, 345

So.2d 596 (La.App. 3 Cir. 1977); Lee v. Carroll, 143 So.2d 417 (La.App. 3 Cir.

1962). The trial court denied the motion to dismiss, but allowed Smith to

supplement its bond. La.Code Civ.P. arts. 2088, 5123, and 5124. Pursuant to

La.Code Civ.P. art. 5124, the supplemental bond is retroactive to the original

filing date of the bond, August 2, 2004. Viccinelli v. Causey, 394 So.2d 1309

(La.App. 1 Cir. 1981).

We find that the trial court properly allowed the suspensive appeal bond

to be supplemented. La.Code Civ.P. art. 5124. Additionally, we find the

appeal bond did not lapse when this court found this appeal premature, due to

a timely filed JNOV. The appeal was perfected only after disposing of the

JNOV.