Bryan Arnold Richman, Jr. v. the Travelers Indemnity Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-460

BRYAN ARNOLD RICHMAN, JR.

VERSUS

THE TRAVELERS INDEMNITY COMPANY, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2017-1756
HONORABLE DERRICK D. KEE, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of D. Kent Savoie, Van H. Kyzar, and Jonathan W. Perry, Judges.

DISMISSAL OF APPEAL AFFIRMED.

David J. Calogero
David J. Calogero, APLC
202 Magnate Drive
Lafayette, LA 70508
(337) 298-0240
COUNSEL FOR DEFENDANTS/APPELLANTS:
Shannon T. Rhodus
Climax Portable Machine Tools, Inc.
The Travelers Indemnity Company

Steven Broussard
Michael J. Williamson
Rachel K. Couvillion
Broussard & Williamson
1301 Common Street
Lake Charles, LA 70601
(337) 439-2450
COUNSEL FOR PLAINTIFF/APPELLEE:
Bryan Arnold Richman, Jr.

SAVOIE, Judge.

Defendants Shannon Rhodus, Climax Portable Machine Tools, Inc.

(“Climax”), and The Travelers Indemnity Company (“Travelers”) seek review of

the trial court’s judgment dismissing their appeal for failure to pay the estimated

costs of appeal as required by La.Code Civ.P. art. 2126. Defendants also ask us to

review the judgment that is the subject of their appeal that was dismissed. For the

reasons that follow, we affirm the trial court’s dismissal of Defendants’ appeal.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a May 12, 2016 auto accident between Plaintiff Bryan

Richman, Jr. and Defendant Shannon Rhodus. Following a four-day jury trial on

the issue of damages in September 2019, the trial court rendered a judgment on

October 23, 2019, in favor of Mr. Richman in accordance with the jury’s verdict.

Thereafter, Mr. Richman filed a Motion for Judgment Notwithstanding the Verdict

(JNOV). The trial court granted the motion and increased the amount of general

damages awarded to Mr. Richman.1

While Mr. Richman’s Motion for JNOV was pending in the trial court,

Defendants filed a motion to deposit funds in the amount of the October 23, 2019

judgment, plus legal interest, into the registry of the trial court, and they also

sought a ruling requiring Mr. Richman to execute a satisfaction of judgment and

cancellation of judicial mortgage. The trial court granted Defendants’ motion as

prayed for on December 3, 2019.

On June 15, 2020, Mr. Richman filed a motion seeking to unconditionally

withdraw the funds from the registry of the trial court, as well as a determination

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Defendants’ appeal of this judgment, along with the district court’s judgment taxing
costs in favor of Mr. Richman, and the district court’s denial of Defendants’ exception of
improper venue is the subject of a separate matter bearing this court’s docket number 21-459.

that legal interest continues to accrue on the amount of the judgment due to the

conditions associated with the withdrawal of the funds (i.e. execution of

satisfaction of judgment and cancellation of mortgage) and Defendants having

never made an unconditional tender of the sums owed.

Following a hearing, the trial court signed a judgment on July 27, 2020,

ordering that Mr. Richman “is allowed to unconditionally withdraw all funds from

the registry of the court previously deposited by Defendants[,]” and “that legal

interest continued to accrue on all funds deposited into the registry of the court

until the date of this ruling, July 15, 2020.”

On September 10, 2020, Defendants filed a Motion for Suspensive Appeal

of the July 27, 2020 judgment. An order granting the motion was signed on

October 5, 2020. The clerk of the trial court thereafter submitted an estimated cost

of appeal on November 9, 2020, which included $38,226.59 for copies of

pleadings, exhibits, and transcripts, $300.00 for the court reporter, and $336.50 for

the Clerk of Court of Appeal.

On or about January 5, 2021, Defendants submitted a check to the Calcasieu

Parish Clerk of Court in the amount $336.50, but, according to Defendants, the

payment was rejected as it was not in the full amount of the estimated costs of

appeal.

On January 21, 2021, Mr. Richman filed a Motion to Dismiss Defendant’s

Motion for Suspensive Appeal of the July 27, 2020 judgment in accordance with

La.Code Civ.P. art. 2126(E). He noted that Defendants had not paid the estimated

costs of appeal within twenty days of the notice and had not otherwise sought an

extension or time to pay or a reduction of costs, despite the express requirements of

La.Code Civ.P. art. 2126.

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Following a hearing on February 23, 2021, the trial court signed a judgment

on the same day granting Mr. Richman’s motion and dismissing Defendants’

appeal of the July 27, 2020 judgment.

Defendants now appeal the February 23, 2021 judgment dismissing their

appeal of the July 27, 2020 judgment. Defendants further seek review of the July

27, 2020 judgment. They assert the following as assignments of error:

1. The [Trial] Court committed error dismissing Defendants’
suspensive appeal from the judgment of July 27, 2020.

2. The [Trial] Court committed error in its judgment of July 27,
2020[,] which awarded [P]laintiff additional legal interest after the
judgment proceeds were deposited into the court registry.

ANALYSIS

We will first review the trial court’s dismissal of Defendants’ appeal of the

July 27, 2020 judgment.

Louisiana Code of Civil Procedure Article 2126 states in pertinent part as

follows (emphasis added):

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 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.

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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.

As stated by this court in Fontenot v. Delhomme’s Funeral Home, Inc., 09-

1071, p. 2 (La.App. 3 Cir. 4/7/10), 33 So.3d 1100, 1102, writ denied, 10-1064 (La.

9/3/10), 44 So.3d 687, “[t]his article grants the trial court the discretion to dismiss

the appeal as abandoned where the appellant fails to pay the costs within the time

specified.”

On appeal, Defendants suggest the trial court erred in dismissing their appeal

of the July 27, 2020 judgment because the estimated costs of appeal were largely

duplicative of the estimated appeal costs associated with Defendants’ separate

appeal of, inter alia, the trial court’s judgment granting Mr. Richman’s JNOV and

increasing damages, and because the estimated costs of that prior appeal were

subject to a pending motion to traverse or reduce costs.2

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Mr. Richman also sought to dismiss Defendants’ prior appeal of the trial court’s
judgments granting the motion for JNOV, increasing damages, and denying Defendants’ venue
exception due to Defendants’ non-payment of estimated costs associated with that appeal.
However, the district court denied that motion pursuant to a judgment signed February 23, 2020,
in light of a pending motion to traverse the costs of that appeal, but also ordered that Defendants
had ten days to pay the estimated costs, or, alternatively, a hearing was set for March 10, 2021,

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However, we note, as did the trial court, that Defendants failed to file a

motion seeking to reduce the estimated costs of appeal associated with the appeal

of the July 27, 2020 judgment, as contemplated by La.Code Civ.P. art. 2126(C).

The fact that Defendants filed a motion challenging the estimated costs associated

with a wholly separate appeal does not relieve Defendants of their obligation to

comply with La.Code Civ.P. art. 2126 with respect to their subsequent appeal of

the July 27, 2020 judgment.

Defendants further argue that the following language from Pray v. First

National Bank of Jefferson Parish, 93-3027, p. 1 (La. 2/11/94), 634 So.2d 1163,

1163 supports a finding of error on the part of the trial court in dismissing their

appeal:

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 (as in this case)
immediately after expiration of the twenty-day period for paying the
costs.

The district court abused its discretion in this case by
immediately dismissing the appeal, which the appellant clearly had
not abandoned, without affording the appellant a brief extension of
time for payment of costs.

Unlike in Pray, however, Mr. Richman did not file a motion seeking

dismissal immediately after the expiration of La.Code Civ.P. art. 2126(B)’s

twenty-day payment deadline. Rather, Mr. Richman filed his motion to dismiss

on Defendants’ motion to traverse. It is unclear from the record before us what subsequently
transpired with respect to Defendants’ payment of estimated costs for the prior appeal; however,
that appeal was not dismissed and is the subject of this court’s docket number 21-459.

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nearly two months after the notice of the estimated costs. In addition, the hearing

on the motion was held over one-hundred days after the notice of estimated costs.

Defendants failed to provide any justifiable reason as to why, by the date of the

February 23, 2021 hearing, they had not either paid the estimated costs or

otherwise sought to have the estimated costs reduced. Their reliance on a motion

to reduce estimated costs associated with a completely different appeal is

insufficient.

In Fontenot, 33 So.2d at 1102, we concluded that there was no abuse of

discretion by the trial court in dismissing an appeal when the appellant “failed to

pay the costs timely, failed to move for an extension of time prior to the expiration

of the time to pay the costs, and, finally, attempted a partial payment of appeal

costs well after opposing counsel moved to dismiss the appeal.”

We similarly conclude that, given Defendants’ failure to pay the estimated

costs, seek an extension, or seek a reduction of estimated costs, not only within the

twenty-day time frame required by La.Code Civ.P. art. 2126, but also within the

one-hundred days between the date of notice of estimated costs and the date of the

hearing on the motion to dismiss, the trial court did not abuse its discretion in

dismissing Defendants’ appeal of the July 27, 2020 judgment. Dismissal under

these circumstances is expressly allowable in accordance with La.Code Civ.P. art.

2126(E).

Because the dismissal of the appeal was not in error, Defendants’ appeal of

the July 27, 2020 judgment is not properly before us, and we, therefore, will not

consider it.

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DECREE

For the reasons stated above, the trial court’s February 23, 2021 judgment

dismissing Defendants’ appeal of the trial court’s July 27, 2020 judgment is hereby

affirmed. Costs of this appeal are assessed to Defendants Shannon Rhodus,

Climax Portable Machine Tools, Inc., and The Travelers Indemnity Company.

DISMISSAL OF APPEAL AFFIRMED.

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