Succession of Mary Louida Arceneaux Lefort

• Court: Louisiana Court of Appeal
• Decided: June 30, 2010
• Docket: CA-0010-0590
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-590

SUCCESSION OF MARY LOUIDA ARCENEAUX LeFORT

********** APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. P-31-97 HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

********** OSWALD A. DECUIR JUDGE

**********

Court composed of Oswald A. Decuir, J. David Painter, David E. Chatelain,* Judges.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED. APPEAL MAINTAINED AS DEVOLUTIVE.

Glenn W. Alexander Attorney at Law Post Office Box 1550 Cameron, LA 70631 (337) 494-5563 COUNSEL FOR APPELLEE: Mary Lou Stoker Joanen Ted Joanen

____________________ *Judge David E. Chatelain, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. Michael Bruce Holmes Attorney at Law Post Office Drawer 790 Kinder, LA 70648 (337) 738-2568 COUNSEL FOR APPELLANT: Ethel Marie Fontenot Sack LeFort DECUIR, Judge.

The appellee, Ted Joanen, moves to dismiss the suspensive appeal of the

appellant, Ethel Marie Fontenot Sacker LeFort, and to have this court maintain the

appeal as devolutive, based on the appellant’s alleged failure to post a timely

supplemental appeal bond. For the reasons discussed below, we deny the motion to

dismiss.

The trial court rendered a final judgment in this matter on January 19, 2010.

Appellant filed a motion for new trial, which the trial court denied. Upon appellant’s

motion for a suspensive appeal, the trial court signed an order granting a suspensive

appeal conditioned upon the furnishing of a bond in an amount of $24,000.00.

The appellee filed a Motion to Increase Amount of Security for Suspensive

Appeal in the trial court. The court minutes from May 4, 2010, indicate that, at the

hearing on this motion, the trial court increased the amount of the suspensive appeal

bond to $434,005.00. The certification of the appeal record signed by the deputy

clerk for the district court indicates that the record in this appeal was prepared on

May 5, 2010. The record was lodged in this court on May 14, 2010.

On June 2, 2010, the appellee filed the instant motion seeking the dismissal of

the suspensive appeal in this court. The appellee avers in the motion that the

appellant has failed to post the supplemental bond in the trial court. Appellee,

therefore, asks that this court order the suspensive appeal dismissed and the appeal

be maintained as devolutive.

Upon further examination of the record in this case, this court issued, sua

sponte, an order to the office of the clerk of court for Jefferson Davis Parish to

supplement the record in this case. Specifically, this court ordered that “this

supplemental record contain all pleadings and documents filed subsequent to the

1 preparation of the original record in this case, as well as any documentation regarding

the filing of the original or any supplemental or new suspensive appeal bond.” This

court received the supplemental record on June 21, 2010. The supplemental record

contains a certificate by the deputy clerk which certifies that this is the complete

record in these proceedings and the certificate is signed June 17, 2010.

Louisiana Code of Civil Procedure Article 5124 provides, in pertinent part,

“Within four days, exclusive of legal holidays, of the rendition of judgment holding

the original bond insufficient or invalid, . . ., the party furnishing it may correct any

defects therein by furnishing a new or supplemental bond . . . .” Readily apparent

from the record in this appeal, as supplemented, is the fact that the appellant has

failed to post a new or supplemental bond as ordered by the trial court at the hearing

on May 4, 2010, and as set forth in the written judgment of May 17, 2010. In Landry

v. Hornsby, 544 So.2d 55 (La.App. 3 Cir. 1989), this court dismissed a suspensive

appeal and maintained the appeal as devolutive where no new or supplemental bond

had been timely filed. Therefore, we hereby dismiss the suspensive appeal in this

case and maintain the appeal as devolutive.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED. APPEAL MAINTAINED AS DEVOLUTIVE.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.