Blaine Strother v. Continental Casualty Insurance Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-1094

BLAINE STROTHER, ET AL.
VERSUS
CONTINENTAL CASUALTY COMPANY, ET AL.

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2002-004
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and James T. Genovese,
Judges.

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

Andre F. Toce
Attorney at Law
Post Office Box 2716
Lafayette, LA 70502-2716
(337)233-6818
COUNSEL FOR PLAINTIFFS:
Blaine Strother
Connie Strother

Bruce David Beach
Ungarino & Eckert, LLC
315 S. College Rd., Suite 239
Lafayette, LA 70503
(337)235-5656
COUNSEL FOR DEFENDANTS:
Continental Casualty Insurance Co.

Southern Food Groups, Inc.
Foremost Dairies, Inc.
Freddie Lynn Fair

Aaron J. Allen
Attorney at Law
Post Office Box 3204
Lafayette, LA 70502
(337)232-9918
COUNSEL FOR PLAINTIFFS:
Blaine Strother
Connie Strother

COOKS, Judge.

The plaintiff-appellee, Blaine Strother, moves to dismiss the suspensive

appeal of the defendants-appellants, Continental Casualty Insurance Company,

Southern Foods Group, L.P. d/b/a Foremost Dairy, Dean Foods Product

Company, and Freddie Lynn Fair (the defendants), based on the defendants’

failure to file a suspensive appeal bond. For the reasons discussed below, we

grant the plaintiffs’ motion to dismiss and dismiss the suspensive appeal, but

maintain the appeal as devolutive.

In an earlier ruling from this court in this appeal, this court dismissed the

appeal which had been taken by the plaintiffs from a null judgment rendered

subsequent to the final judgment. However, this court recognized in that

opinion that, on the record, an appeal by the defendants was still viable. The

plaintiff, Blaine Strother, now moves to dismiss this appeal arguing that the

defendants have failed to post a suspensive appeal bond.

As accurately argued by the defendants in their opposition brief

submitted to this court in response to the instant motion, as a general rule, a

motion to dismiss a suspensive appeal for failure to post a suspensive appeal

bond timely is itself untimely unless filed no later than three days from the later

of the lodging of the record in the appellate court or the return date. La.Code

Civ.P. art. 2161; Baton Rouge Bank & Trust Co. v. Coleman, 582 So.2d 191

(La.1991). The appeal in this case was lodged in this court on August 18,

2005. The motion sub judice was not filed until December 1, 2005.

However, the jurisprudence has not been as definite on the application

of the three day rule of Article 2161 when the appellant has failed to post any

suspensive appeal bond. Thus, the court in Clement v. Graves, 04-1831, p. 5

(La.App. 1 Cir. 9/28/05), ___ So.2d ___, in dismissing the suspensive appeal
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while maintaining the appeal as devolutive, offered the following reasoning:

Additionally, the jurisprudence holds that an appellant’s
tardiness in furnishing security merely constitutes an irregularity
or defect which, if imputable to the appellant, may form the basis
for the appellee to move for the dismissal of the suspensive
appeal under LSA-C.C.P. art. 2161. Blue, Williams & Buckley [v.
Brian Investments, Ltd.], 96-1451 [(La. 11/21/97)] at p. 5, 706
So.2d [999] at 1002. Accordingly, a motion to dismiss a
suspensive appeal must be filed within three days, exclusive of
holidays, of the return day or the date on which the record is
lodged in the appellate court, whichever is later. LSA-C.C.P. art.
2161; Schenker [v. Watkins], 521 So.2d [686] at 687. In the
instant case, we recognize there may be a question as to the
timeliness of plaintiff’s motion to dismiss suspensive appeal.
However, in Schenker, the motion to dismiss suspensive appeal
was not timely filed, but this court nonetheless granted the motion
because, as in the instant case, no appeal bond had ever been
filed. Noting that all the parties agreed that a suspensive appeal
bond had not been filed and could not be obtained, this court
concluded it would be a vain and useless act to refuse to dismiss
the suspensive appeal. Schenker, 521 So.2d at 687,688. This
same logic applies herein. Accordingly, while we grant the
motion to dismiss the suspensive appeal, we deny plaintiff’s
request for attorney’s fees pursuant to LSA-C.C.P. art. 2164.
Further, we maintain the appeal as a devolutive appeal.

In the case sub judice, the defendants filed a brief in opposition to the

plaintiff’s motion to dismiss their appeal. Unlike the facts present in Clement

and the Schenker case on which it relies, the record does not reflect that the

defendants cannot post the suspensive appeal bond. In the brief filed by the

defendants in the instant case, though, the defendants do not contend that they

have filed or have attempted to file a suspensive appeal bond. Instead, the

extent of their argument is that the plaintiff’s motion was filed untimely

pursuant to La.Code Civ.P. art. 2161.

We find that when the appellant has not filed any bond, a motion to

dismiss the suspensive appeal is not untimely if filed beyond the three day time

period set forth in Article 2161. Therefore, we find that the suspensive appeal

must be dismissed. However, we agree with the defendants that although the

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suspensive appeal should be dismissed, the appeal should be maintained as

devolutive. See Landry v. Hornsby, 544 So.2d 55 (La.App. 3 Cir. 1989).

Accordingly, we dismiss the suspensive appeal and maintain the appeal as

devolutive.

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

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