Opinion
No. 07-1519.
February 13, 2008. NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 106638-E HONORABLE KEITH R.J. COMEAUX, DISTRICT JUDGE.
Edmond Dwayne Jordan Attorney at Law Brusly, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS: Troy Davis and Cynthia Davis.
Kristi D. Husher, Attorney at Law, Lafayette, LA, COUNSEL FOR DEFENDANTS/APPELLEES: Paul Willis Provost, Sr., Mary Linda Zenon Provost, Gerald James Sonnier.
Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
The defendant-appellee, Gerald Sonnier, moves to dismiss the appeal of the plaintiffs-appellants, Troy and Cynthia Davis, based on the appeal not having been timely perfected and the failure of plaintiffs-appellants to timely pay costs. For the reasons set forth below, we deny the motion.
On May 14, 2007, appellants filed a motion for suspensive appeal. The trial court signed the order granting a suspensive appeal on May 22, 2007. However, the judgment was not signed by the trial court until June 5, 2007.
Appellants paid costs on October 9, 2007. On October 9, 2007, the trial court ordered appellants to file an order for suspensive appeal and a security bond in the amount of $18,000.00 within five days. Appellants posted the bond on October 29, 2007, and appellants filed the order for suspensive appeal on October 30, 2007. The record in this case was lodged on November 30, 2007. Appellee filed the motion to dismiss the appeal on January 23, 2008.
Louisiana Code of Civil Procedure Article 1911 provides, in pertinent part, that: "Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2038, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled." Therefore, a motion for appeal filed prior to the entering of judgment is premature and subject to dismissal until the final judgment is signed. However, that prematurity is cured by the signing of the judgment. See Overmier v. Traylor, 475 So.2d 1094 (La. 1985).
Appellee first contends that appellants failed to timely perfect the instant appeal. Here, although appellants filed their motion for appeal before the final judgment was signed, a final judgment was entered prior to the lodging of the appeal in this court. Thus, the prematurity of the motion for appeal was cured on June 5, 2007, when the final judgment was signed. Therefore, the instant appeal was timely perfected.
In addition, appellee argues that the appeal should be dismissed for failure to timely pay costs and file the suspensive appeal bond. The costs were paid, and the appeal bond was filed prior to the lodging of the appeal. A motion to dismiss an appeal for failure to timely file the suspensive appeal bond must be filed no later than three days from the lodging of the record in the appellate court or the return date, whichever is later. La. Code Civ.P. art. 2161; Strother v. Continental Cas. Co., 05-1094 (La.App. 3 Cir. 2/8/06), 923 So.2d 783. The appeal was lodged on November 30, 2007; however, appellee did not file his motion to dismiss until January 23, 2007. Thus, appellee's motion to dismiss on this ground was not timely filed.
Accordingly, for these reasons, we deny the motion to dismiss the appeal.