Gregory James Klumpp v. Susan Blake Klumpp

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1141

GREGORY JAMES KLUMPP

VERSUS

SUSAN DOWS BLAKE KLUMPP

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2001-816
HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Oswald A. Decuir, Marc T. Amy, and J. David Painter, Judges.

MOTION TO DISMISS APPEAL GRANTED IN PART
AND DENIED IN PART.
CASE REMANDED WITH INSTRUCTIONS.

S.C. Garcia, III
Basile J. Uddo
Garcia & Bishop
3850 North Causeway Boulevard
Suite 1090
Metairie, Louisiana 70002
(504) 835-5085
COUNSEL FOR DEFENDANT/APPELLANT:
Susan Dows Blake Klumpp

Kathleen Kay
512 Pujo Street
Lake Charles, Louisiana 70602
(337) 439-7616
COUNSEL FOR PLAINTIFF/APPELLEE:
Gregory James Klumpp

Paul H. Spaht
Kantrow, Spaht, Weaver & Blitzer
Post Office Box 2997
Baton Rouge, Louisiana 70821
(225) 383-4703
COUNSEL FOR PLAINTIFF/APPELLEE:
Gregory James Klumpp

AMY, Judge.

The plaintiff, Gregory James Klumpp, moves to dismiss the suspensive

appeal of the defendant, Susan Dows Blake Klumpp, based on irregularities

pursuant to La.Code Civ.P. art. 2161. For the reasons assigned, we deny the

motion to dismiss and remand the case to the trial court for further

consideration as explained below.

This case arises out of the community property dispute incident to the

divorce of the parties. On December 15, 2005, the trial court signed a final

judgment regarding the community property division. Notice of the judgment

was mailed to the defendant on December 28, 2005. The defendant filed a

motion for new trial that was denied by the trial court. Notice of this ruling

was mailed to the defendant on February 3, 2006. The defendant timely filed

a motion and order for suspensive appeal on February 15, 2006. The trial

judge signed an order recusing himself on February 21, 2006, but thereafter

signed the order for appeal on March 7, 2006. The trial court set a suspensive

appeal bond in the amount of $292,202.56.

The record in this appeal was lodged in this court on September 5, 2006.

The instant Motion to Dismiss Appeal for Irregularities was filed in this court

on September 7, 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. The plaintiff argues that the defendant

did not perfect her appeal. The plaintiff contends the order granting the appeal

is invalid because it was signed by a judge who had already been recused in

this case. Judge Guy E. Bradberry signed an order recusing himself from this

case on February 21, 2006. Thereafter, Judge Bradberry signed the order for

appeal on March 7, 2006. The judge was without authority to sign any order

in the case once he had been recused. La.Code Civ.P. art. 153. Therefore, the

order for appeal is null and has no effect. However, the defendant timely filed

her motion and order for appeal with the trial court before the recusal and

should not be penalized for the trial court’s error in signing the order.

Accordingly, we deny the motion to dismiss the defendant’s appeal, and further

remand this case to the trial court in order for the order for appeal to be

considered by a judge with jurisdiction in this case.

The plaintiff also challenges the manner in which the defendant posted

bond in this matter. We find that this issue is properly presented to the trial

court pursuant to La.Code Civ.P. art. 2088, and will not be considered by this

court.

MOTION TO DISMISS APPEAL GRANTED IN PART
AND DENIED IN PART.
CASE REMANDED WITH INSTRUCTIONS.

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