State of Louisiana v. James Lance Fontenot

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1289

STATE OF LOUISIANA
VERSUS
JAMES LANCE FONTENOT

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 117603
HONORABLE DURWOOD CONQUE, DISTRICT JUDGE

**********
ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Judges Sylvia R. Cooks, Jimmie C. Peters, and Elizabeth A.
Pickett.

APPEAL DISMISSED.

David F. Hutchins
Asst. District Attorney
Post Office Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

James Kirk Piccione
Piccione & Piccione
Post Office Box 3029
Lafayette, LA 70502
(337) 233-9030
COUNSEL FOR DEFENDANT/APPELLEE:
James Lance Fontenot

Danny Joseph Louviere
Attorney at Law
105 N. Market St.
Opelousas, LA 70570
(337) 654-0594
COUNSEL FOR APPELLANTS:
Financial Casualty & Surety, Inc.
Zerangue's Bail Bonds, Inc.

PICKETT, Judge.

This court, sua sponte, issued a rule for the appellants, Zerangue’s Bail Bonds,

Inc., and Financial Casualty and Surety, Inc., to show cause why their appeal should

not be dismissed as premature pursuant to La.Code Civ.P. arts. 1911 and 2083. For

the reasons set forth herein, we dismiss the appeal.

The appellants were the sureties for a bail bond posted by the defendant, James

Lance Fontenot. When Fontenot failed to appear in court on April 17, 2008, the trial

court orally entered judgment forfeiting the bond and ordering the issuance of a bench

warrant for Fontenot. A written judgment ordering the bond forfeiture in the amount

of $750.00 was signed by the trial court on May 2, 2008. An affidavit prepared by

the clerk of court’s office for the Lafayette Parish District Court certified that notice

of the written judgment was sent to the appellants on May 12, 2008.

Fontenot again failed to appear at a hearing set for June 23, 2008. The trial

court, once again, issued a bench warrant for Fontenot and ordered forfeiture of the

bond. A written judgment ordering the bond forfeiture, this time in the amount of

$195.00, was signed by the trial court on July 9, 2008. An affidavit from the clerk of

court’s office for the Lafayette Parish District Court certifies that notice of this

judgment was mailed to the appellants on July 21, 2008.

On February 9, 2009, the appellants filed a Motion for Discharge and Release

of Surety. The appellants argued in their motion that after the judgment of bond

forfeiture was orally rendered on April 17, 2008, Fontenot surrendered himself on or

about May 6, 2008. Thus, the appellants contended that this surrender should have

resulted in the appellants being fully discharged and released from their surety

obligation. Therefore, the appellants prayed for entry of a judgment discharging and

releasing them from any obligation under the bond and judgment of bond forfeiture.

1

The state opposed this motion by asserting that the challenge to the judgment of

forfeiture was untimely filed in excess of the sixty day time limit imposed by La.R.S.

15:85(5).

A hearing on the appellants’ motion for release of surety was held on June 4,

2009. At the hearing the trial court orally denied the motion. The record contains no

written judgment memorializing this decision. Regardless, the appellants filed a

motion for appeal on July 2, 2009, referring to the June 4, 2009 ruling denying their

motion for release of surety.

Upon this court’s receipt of the record in this appeal, this court issued the

subject rule for the appellants to show cause why their appeal should not be dismissed

as premature based on the lack of a written judgment pursuant to La.Code Civ.P. arts.

1911 and 2083. The appellants filed a response to this rule arguing that the April 17,

2008 judgment of bond forfeiture and the June 4, 2009 judgment denying the motion

for release of the surety are appealable judgments.

The appellants cite this court to La.R.S. 15:85(6) as statutory support for the

appealable nature of the judgments at issue. This provision reads:

(6) Appeals.

(a) The defendant and his sureties shall have the right to an appeal that
suspends the effect or the execution of the judgment of bond forfeiture. The
security to be furnished for this suspensive appeal shall be equal to the bail
obligation.

(b) The defendant and his sureties shall have the right to a devolutive
appeal of the judgment of bond forfeiture.

(c) All appeals shall be to the appellate court having general civil
appellate jurisdiction over the court issuing the judgment of bond forfeiture.

The appellants appear to contend that this court should permit their appeal

based on the May 2, 2008 judgment of forfeiture, although the appellants refer to the

date of the oral ruling of April 17, 2008. This court agrees with the appellants that

2

a written judgment of bond forfeiture is appealable pursuant to La.R.S. 15:85(6).

Thus, a timely appeal was available to the appellants from the May 2, 2008,

judgment. The record reveals that the appellants were properly sent notice of the

signing of this judgment. Therefore, we find that the delays for seeking an appeal of

this judgment ran well before the appellants filed their motion and order for appeal

on July 2, 2009. See La.Code Civ.P. arts. 2087 and 2123.

The only remaining judgment to which the appellants refer in their response to

this court’s ruling that could arguably be appealable is the oral judgment denying the

motion to release surety. The appellants have provided this court with no authority,

statutory nor jurisprudential, which affords the appellants a right to appeal the oral

judgment denying the motion to release surety. Even if this judgment would be

appealable when reduced to proper form, which issue is not before this court, the

judgment must be reduced to writing before it would be appealable. La.Code Civ.P.

arts. 1911 and 2083. Since we find that the appeal delays have run as to the written

judgment of May 2, 2008, and that an appeal of the oral ruling of June 4, 2009, is

premature without the rendition of a written judgment, we hereby dismiss the instant

appeal at appellants’ cost.

APPEAL DISMISSED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.

Rule 2-16.3 Uniform Rules, Court of Appeal.

3