Theodore Venissat v. St. Paul Fire & Marine Ins. Co.

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

06-987

THEODORE VENISSAT, ET AL. VERSUS ST. PAUL FIRE & MARINE INSURANCE COMPANY, ET AL.

********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2003-5880 HONORABLE RICK BRYANT, DISTRICT JUDGE

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

**********

Court composed of Chief Judge Ulysses Gene Thibodeaux, Elizabeth A. Pickett, and J. David Painter, Judges.

SUSPENSIVE APPEAL DISMISSED; APPEAL CONVERTED TO A DEVOLUTIVE APPEAL.

Thomas Gayle Ranier, Gayle & Elliot Post Office Box 1890 Lake Charles, LA 70602-1890 (337) 494-7171 Counsel for Plaintiffs/Appellees: Theodore and Vera Venissat

Todd Ammons Stockwell, Sievert, Viccellio, Clements & Shaddock Post Office Box 2900 Lake Charles, LA 70602 (337) 436-9491 Counsel for Defendants/Appellants: Charles Ferguson Calcasieu Parish Sheriff’s Department St. Paul Fire & Marine Insurance Company Robert McCorquodale 1011 Lakeshore Drive, Suite 305 Lake Charles, LA 70601 (337) 491-3622 Counsel for Defendants/Appellants: Charles Ferguson Calcasieu Parish Sheriff’s Department PAINTER, Judge.

The plaintiffs, Theodore Venissat and Vera Venissat, move to dismiss

the suspensive appeal of the defendant, St. Paul Fire & Marine Insurance

Company, based on the failure of St. Paul to post a timely suspensive appeal

bond. For the reasons assigned, we grant the motion.

This case arose out of an automobile accident wherein the defendant,

Charles Ferguson, was working as a sheriff’s deputy when his vehicle struck

the plaintiffs’ vehicle. The Calcasieu Parish Sheriff’s Department and its

insurer, St. Paul Fire & Marine Insurance Company, were also made

defendants. On May 8, 2006, the trial court signed a final judgment in

accordance with the verdict of the jury in this case finding liability on the part

of the defendants and awarding damages to the plaintiffs. Notice of the signing

of the judgment was mailed by the clerk’s office on May 8, 2006. On May 24,

2006, the plaintiffs filed a motion for devolutive appeal, and the trial court

signed the order granting the appeal on May 30, 2006.

On June 16, 2006, all three defendants filed a motion for a suspensive

appeal. The order signed by the trial court granting the suspensive appeal

stated that no bond was being required for the suspensive appeal based on

La.R.S. 13:4581.

The record in this appeal was lodged in this court on August 4, 2006.

The instant Motion to Dismiss Suspensive Appeal was filed in this court on

August 8, 2006.

In order to perfect a suspensive appeal, the 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. However, in granting the defendants’

1 suspensive appeal without bond the trial court relied on the exception found

in La.R.S. 13:4581, providing that sheriffs' departments and their officers shall

not be required to furnish any appeal bond in any actions that arise from

activities within the course and scope of their duties and employment. The

trial court correctly granted the suspensive appeal without bond as to the

defendants, deputy Charles Ferguson and the Calcasieu Parish Sheriff’s

Department. However, the trial court erred in so ruling as to St. Paul, a private

insurance company, that is not excepted from furnishing an appeal bond

pursuant to La.R.S. 13:4581. Relying on the trial court’s ruling, St. Paul failed

to timely post a suspensive appeal bond.

The defendants argue in their brief that the plaintiffs did not first

challenge the sufficiency of the security as required by law. Louisiana Code

of Civil Procedure Article 5123 provides that a party wishing to test the

sufficiency or validity of a bond shall rule the party into the trial court. This

article does not apply to the instant case as no bond was set by the trial court.

Therefore, the procedures to test the sufficiency of a bond are not required.

Franco v. Franco, 04-967 (La.App. 4 Cir. 7/28/04), 881 So.2d 131.

We find St. Paul cannot rely on the trial court’s failure to set a

suspensive appeal bond as the basis for arguing that it did not have to post a

bond in order to perfect its suspensive appeal. St. Paul’s suspensive appeal

was not perfected within the delays set forth in La.Code Civ.P. art. 2123

because although the notice for appeal was timely filed, a bond was not filed.

Moreover, we find it is too late for St. Paul to timely post a suspensive appeal

bond. See National Union Fire v. Harrington, 02-192 (La.App. 3 Cir. 3/6/02),

810 So.2d 1279, and White v. Rogers, 04-1434 (La.App. 5 Cir. 4/26/05), 905

2 So.2d 1088. Accordingly, we hereby grant the instant motion to dismiss the

suspensive appeal, and further convert the appeal by St. Paul to a devolutive

appeal.

SUSPENSIVE APPEAL DISMISSED; APPEAL CONVERTED TO A DEVOLUTIVE APPEAL.