Opinion
No. 10-590.
June 30, 2010. NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. P-31-97 HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE.
Glenn W. Alexander, Attorney at Law, Cameron, LA, COUNSEL FOR APPELLEE: Mary Lou Stoker Joanen, Ted Joanen.
Michael Bruce Holmes, Attorney at Law, Kinder, LA, COUNSEL FOR APPELLANT: Ethel Marie Fontenot Sack LeFort.
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 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.