Louisiana Board of Massage Therapy v. Rita Rae Fontenot, Dpm

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 04-1525

LOUISIANA BOARD OF MASSAGE THERAPY

VERSUS

RITA RAE FONTENOT, DPM, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 98-3310
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Chief Judge Ulysses Gene Thibodeaux and Judges John D.
Saunders, and Jimmie C. Peters.

REVERSED.

Celia R. Cangelosi
Attorney at Law
P. O. Box 3036
Baton Rouge, LA 70821-3036
(225) 387-0511
Counsel for Plaintiff/Appellee:
Louisiana Board of Massage Therapy

George Jeanmard Tate
Attorney at Law
P. O. Box 817
Abbeville, LA 70511-0817
(337) 893-8335
Counsel for Defendant/Appellant:
Rita Rae Fontenot

SAUNDERS, J.

The appellant, Rita Rae Fontenot, appeals the trial court’s decision to dismiss

her appeal for failure to timely pay the appeal costs. Finding that the trial court

committed an abuse of discretion, we reverse.

FACTS

On May 29, 1998, the Louisiana Board of Massage Therapy (hereinafter

referred to as the Board) instituted suit against Rita Rae Fontenot, DPM, and Rita Rae

Fontenot d/b/a “Heaven-The Ultimate Day Pampering Spa.” The Board sought an

injunction and temporary restraining order prohibiting Ms. Fontenot from operating

her business as she did not have the requisite license. The Board also sought to

prohibit employees from providing services without the proper license.

The trial court issued a temporary restraining order on May 29, 1998, and

signed the judgment granting the preliminary injunction on June 19, 1998. On June

29, 1998, the Board filed a contempt rule against Ms. Fontenot. On September 1,

1998, the trial court determined that Ms. Fontenot had violated the previous ruling

and ordered her to pay a $500.00 fine. In addition, the trial court ordered Ms.

Fontenot to cease and desist the unlicensed activity.

On August 21, 2002, the Board filed another contempt rule alleging that Ms.

Fontenot continued to advertise the business as a massage establishment. On

September 23, 2002, Ms. Fontenot filed a motion to continue the bench trial and

requested a jury trial. The trial court granted the Board’s motion to strike the jury

trial on October 21, 2002.

Trial was held on December 6, 2002, and the court left the record open for the

supplementation of evidence which occurred in April of 2003. On May 15, 2003, the

trial court found Ms. Fontenot in contempt and ordered her to pay a $5,250.00 fine,

to pay costs, and to reimburse the Board’s attorney fees in the amount of $17,230.60.

On May 21, 2003, the judgment was amended making the preliminary injunction

permanent.

Ms. Fontenot appealed the May 21, 2003 judgment by filing a suspensive

appeal on July 2, 2003. The appeal bond was set at $22,480.60, and on July 2, 2003,

Ms. Fontenot posted a bond in the amount of $40,000.00. On July 9, 2003, the clerk

mailed a notice informing Ms. Fontenot of the estimated appeal costs and that the

costs must be paid within twenty days.

Ms. Fontenot filed a Motion for New Trial on July 22, 2003. Subsequently, the

Board filed an Exception To and Motion to Dismiss the Motion for New Trial. The

motions and exceptions were scheduled for December 5, 2003, but Ms. Fontenot did

not appear at the hearing and the court dismissed the motion for new trial with

prejudice and at the appellant’s costs.

On February 5, 2004, the Board filed a Motion to Dismiss Abandoned Appeal

for failure to pay costs. (The Board argues that the motion was actually sent to the

clerk on December 5, 2003, but was lost in the courthouse until February 5, 2004,

when it was found and stamped filed.) A hearing on the motion was set for March

31, 2004, but was rescheduled for April 21, 2004. Ms. Fontenot paid the appeal costs

on March 30, 2004.

At the April 21, 2004 hearing, the motion to dismiss the appeal was granted,

and the judgment was signed on May 4, 2004. Ms. Fontenot filed a suspensive appeal

on July 16, 2004, and on July 23, 2004, the clerk mailed a notice of the estimated

appeal costs to Ms. Fontenot. On September 1, 2004, the Board filed another motion

to dismiss for failure to pay costs. Prior to the October 18, 2004 hearing, Ms.

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Fontenot paid the appeal costs. The court refused to dismiss the appeal but

sanctioned Ms. Fontenot by ordering her to pay the Board’s attorney fees. After the

Board failed to convince the trial court to dismiss the appeal, the Board filed a motion

to dismiss the suspensive appeal with this court, but we also refused to dismiss it.

Thus, the appeal currently before this court is Ms. Fontenot’s appeal of the trial

court’s decision to dismiss her appeal on May 4, 2004.

ASSIGNMENT OF ERROR

Did the trial court incorrectly dismiss the appeal?

LAW & ANALYSIS

In reviewing a trial court’s decision to dismiss an appeal for failure to pay

costs, the appellate court looks to whether or not the trial court committed an abuse

of discretion in reaching its decision. See Pray v. First Nat’l Bank of Jefferson

Parish, 93-3027 (la. 2/11/94), 634 So.2d 1163; Morgan v. Simon, 00-1556 (La.App.

3 Cir. 2/28/01), 780 So.2d 626.

DISCUSSION

Ms. Fontenot argues that the trial court incorrectly dismissed the appeal on

May 4, 2004. Particularly, she argues that the dismissal is an abuse of discretion as

the appeal costs were paid three weeks prior to the hearing on the motion to dismiss.

The appellee argues that the trial court correctly dismissed the appeal as La.Code

Civ.P. art. 2126 provides twenty days from the clerk’s notice in which to pay the

appeal costs.

Louisiana Code of Civil Procedure Article 2126 provides the relevant rule on

the payment of costs:

A. The clerk of the trial court, immediately after the order of
appeal has been granted, shall estimate the cost of the preparation of the

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record on appeal, including the fee of the court reporter for preparing the
transcript and the filing fee required by the appellate court. The clerk
shall send notices of the estimated costs by certified mail to the
appellant and by first class mail to the appellee.

B. Within twenty days of the mailing of notice, the appellant
shall pay the amount of the estimated costs to the clerk. The trial court
may grant one extension of the period for paying the amount of the
estimated costs for not more than an additional twenty days upon written
motion showing good cause for the extension.

C. The appellant may question the excessiveness of the
estimated costs by filing a written application for reduction in the trial
court within the first twenty-day time limit, and the trial court may order
reduction of the estimate upon proper showing. If an application for
reduction has been timely filed, the appellant shall have twenty days to
pay the costs beginning from the date of the action by the trial court on
application for reduction.

D. After the preparation of the record on appeal has been
completed, the clerk of the trial court shall, as the situation may require,
either refund to the appellant the difference between the estimated costs
and the actual costs if the estimated costs exceed the actual costs, or
send a notice by certified mail to the appellant of the amount of
additional costs due, if the actual costs exceed the estimated costs. If the
payment of additional costs is required, the appellant shall pay the
amount of additional costs within twenty days of the mailing of the
notice.

E. If the appellant fails to pay the estimated costs, or the
difference between the estimated costs, and the actual costs, within the
time specified, the trial judge, on his own motion or upon motion by the
clerk or by any party, and after a hearing, shall:
(1) Enter a formal order of dismissal on the grounds of
abandonment; or
(2) Grant a ten day period within which costs must be paid in
full, in default of which the appeal is dismissed as
abandoned.

F. If the appellant pays the costs required by this Article, the
appeal may not be dismissed because of the passage of the return day
without an extension being obtained or because of an untimely lodging
of the record on appeal.

In Pray, 634 So.2d at 1163, the Louisiana Supreme Court explained the

purpose of La.Code Civ.P. art. 2126:

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The primary purpose of La.Code Civ.Proc. art. 2126's authorization to
dismiss appeals for non-payment of costs is to dismiss the appeal as
abandoned, in those cases in which the appellant files a timely appeal
and thereafter decides not to pursue it. A secondary purpose is to ensure
prompt payment of costs of appeal by dilatory appellants. The focus of
district courts in deciding Article 2126 motions to dismiss should be on
securing payment of costs in order to move appeals forward rather than
on dismissing appeals, although obviously not abandoned, simply
because a motion was filed . . . immediately after expiration of the
twenty-day period for paying the costs.

In addition, it is important to recognize that appeals are favored and should be

maintained when possible. “Appeals are favored in the law and should be maintained

unless a legal ground for dismissal is clearly shown. An appeal is not to be dismissed

for a mere technicality. Unless the ground urged for dismissal is free from doubt, the

appeal should not be dismissed.” Stadtlander v. Ryan’s Family Steakhouses, Inc.,

34,384, p. 2 (La.App. 2 Cir. 4/4/01), 794 So.2d 881, 885, writ denied, 01-1327 (la.

6/22/01), 794 So.2d 790 (citations omitted).

The appellee’s argument centers around La.Code Civ.P. art. 2126, which

provides the appellant with twenty days from notice of the appeal costs to provide

payment of those costs. The appellee argues that Ms. Fontenot’s time to pay expired

on July 29, 2003, as notice was sent to her on July 9, 2003. The appellee contends

that La.Code Civ.P. art. 2126(E) provides the trial court with only two options when

an appellant does not render payment within the twenty-day period. The article

directs the trial court to either dismiss the appeal or grant an extension of time. In this

case, the court could not grant an extension of time for payment as the costs were paid

prior to the hearing. Therefore, according to the appellee’s argument, the only option

available to the trial court was dismissal.

In addition, the appellee relies on two cases where the trial court dismissed the

appeal for failure to timely pay the appeal costs, Laborde v. Presbyterian Village of

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Homer, La., Inc., 32,639 (La.App. 2 Cir. 1/26/00), 750 So.2d 1182; Schmolke v.

Clary, 03-2107 (La.App. 1 Cir. 9/17/04), 884 So.2d 675, writ denied, 04-3089 (La.

2/18/05), ___ So.2d ___. In Laborde and Schmolke, the appellant failed to pay within

the twenty-day period and also within the extension granted by the court. Laborde

and Schmolke support the appellee’s argument that the trial court has only two

options under La.Code Civ.P. art. 2126, i.e., dismiss or grant an extension. In these

two cases, the appellants failed to pay within the twenty-day period and the court

granted extensions of time to pay the appeal costs. Thus, after the appellants failed

to pay in the time allowed by the extension, the only option left for the judges was

dismissal.

The cases cited by the appellee are not applicable to the present case as in those

cases the appellants had been granted an extension of time by the court. In this case,

Ms. Fontenot failed to render payment within the twenty days, and no additional time

had been requested or granted. However, payment was rendered shortly after she

received notice that the appellee had chosen to challenge the appeal by having it

dismissed.

The cases cited by Ms. Fontenot coincide with the principles enunciated in

Stadtlander and in Pray. In Reed v. Columbia/HCA Information Service, Inc., 99-

1315 (La.App. 5 Cir. 4/25/00), 761 So.2d 625, the appellant filed the appeal on March

30, 1999, and notice of the appeal costs was mailed on April 21, 1999. On May 18,

1999, the defendant filed a motion to dismiss the appeal as abandoned. The hearing

was set for June 21, 1999, and the appellant paid the costs on June 15, 1999. The

court found that although the payment was late, it was made prior to the motion to

dismiss the hearing and, thus, sufficient. The court stated:

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This article is not jurisdictional, but is a procedural vehicle
designed solely for the efficient administration of the court.

As noted in the concurring opinion in Richards v. Everett, 509
So.2d 851, 852-853 (La.App. 4 Cir. 1987),

C.C.P. art. 2126 is not self operative. Before the
trial judge may dismiss the appeal for non-payment of costs
there must be a hearing which may be provoked by the
judge on his own motion or on motion of the clerk or that
of a party . . . . But when the costs are already paid at
the time of the hearing the statute has no application by
its own terms.
....
We find, therefore, that because plaintiff’s payment of appeal
costs was made prior to the hearing on defendant’s motion to
dismiss her appeal, the payment satisfied the intent and purposes of
La. C.C.P. art. 2126 and made the motion to dismiss moot.

Id. at 628-29 (emphasis added) (citations omitted).

In Morgan v. Simon, 00-1556 (La.App. 3 Cir. 2/28/01), 780 So.2d 626, the

appellant filed the appeal on October 25, 1999, and the notice of costs was sent on

October 29, 1999. On January 3, 2000, the defendant filed a motion to dismiss for

failure to pay costs. Costs were paid on January 27, 2000, and the hearing was held

on February 22, 2000, with the court dismissing the appeal. The reviewing court

determined that the dismissal was inappropriate and stated:

In the matter before us, it is clear the appeal had not been
abandoned. Whether or not the appellants’ counsel received legal notice
under the article, the estimated costs were promptly paid upon receiving
notice that a motion to dismiss had been filed. As in Pray the motion to
dismiss was filed almost immediately after the 20 days had lapsed.
Payment of the estimated costs was made well before the hearing on the
motion to dismiss.

Under the facts of this case, the trial court abused its discretion by
dismissing the appeal. The harsh remedy of dismissal should not be
applied in a matter, when the appeal has clearly not been
abandoned, without first giving the appellant a brief extension of
time to pay. As has been previously noted in this matter, costs were
paid well before the hearing.

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Id. at 628-29 (emphasis added).

In Reed and Morgan, the court found that dismissal was not appropriate even

though the time allowed in La.Code Civ.P. art. 2126 had expired, as the appeal had

not been abandoned.

The primary difference between those cases and our present case is the amount

of time that transpired between the twenty day period and the filing of the motion to

dismiss. In both Reed and Morgan, the defendants filed the dismissal shortly after the

twenty-day period expired, and the court determined that dismissal was not

appropriate. In the present case, the Board did not file the dismissal until over six

months after the expiration of the twenty-day period. Once filed, Ms. Fontenot paid

the appeal costs. The payment of those costs were made three weeks prior to the

hearing. Thus, in accordance with Reed and Morgan, we find that the payment prior

to the hearing is sufficient evidence that the appeal had not been abandoned.

CONCLUSION

As the appeal costs were paid prior to the hearing, the trial court committed an

abuse of discretion in dismissing the appeal. Accordingly, we reverse.

Normally, the party cast is responsible for the court costs, but in exceptional

circumstances the prevailing party may be assessed with the costs. This is such a

case. Ms. Fontenot has shown a very cavalier attitude to her litigation, and equity

requires that she bear the appellate costs. Accordingly, the appellant is cast with

costs.

REVERSED.

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