Richard C. Bentley v. Bobby Fanguy

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CM 09-822
consolidated with
CA 09-1509

RICHARD BENTLEY

VERSUS

BOBBY FANGUY

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 69461
HONORABLE CHARLES LEE PORTER, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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

SUSPENSIVE APPEAL DISMISSED.
APPEAL MAINTAINED AS DEVOLUTIVE.
PLAINTIFF’S REQUEST FOR SANCTIONS DENIED.

Stephen Gary McGoffin
Ryan M. Goudelocke
Durio, McGoffin, Stagg
Post Office Box 53485
Lafayette, LA 70505
(337) 233-0300
COUNSEL FOR DEFENDANT/APPELLEE:
Bobby Fanguy

Ed W. Bankston
Attorney at Law
Post Office Box 53485
Lafayette, LA 70505
(337) 237-4223
COUNSEL FOR PLAINTIFF/APPELLANT:
Richard C. Bentley

PETERS, J.

The defendant-appellee, Bobby Fanguy, moves to dismiss the suspensive

appeal of the plaintiff-appellant, Richard C. Bentley, based on the failure of the

plaintiff to post a timely suspensive appeal bond. For the reasons assigned, we grant

the motion to dismiss the suspensive appeal, but we maintain the appeal as

devolutive.

On February 3, 2009, the trial court entered a final written judgment on

damages. Notice of the signing of judgment was sent on February 19, 2009. The

plaintiff filed a notice of suspensive appeal on February 27, 2009, and the trial court

signed a subsequent order granting the appeal on March 9, 2009. The plaintiff’s

bond was set in the amount of $159,488.51. The defendant filed a motion to dismiss

the plaintiff’s suspensive appeal on July 13, 2009. The appeal was lodged with this

court on December 16, 2009.

In order to perfect a suspensive appeal, an 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. This article states, in pertinent part:

A. Except as otherwise provided by law, an appeal that
suspends the effect or the execution of an appealable order or judgment
may be taken, and the security therefor furnished, only within thirty days
of any of the following:

(1) The expiration of the delay for applying for a new trial or
judgment notwithstanding the verdict, as provided by Article 1974 and
Article 1811, if no application has been filed timely.

(2) The date of the mailing of notice of the court’s refusal to
grant a timely application for a new trial or judgment notwithstanding
the verdict, as provided under Article 1914.

Louisiana Code of Civil Procedure Article 2124(B)(1) provides the “[w]hen

the judgment is for a sum of money, the amount of the security shall be equal to the

amount of the judgment, including the interest allowed by the judgment to the date

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the security is furnished, exclusive of the costs.” Louisiana Code of Civil Procedure

Article 2123 clearly sets forth that the suspensive appeal bond must be filed within

the applicable thirty-day time period. Because the judgment rendered was for a sum

of money, to perfect the suspensive appeal, the plaintiff was required to post the

suspensive appeal bond in the amount of the judgment within the thirty-day time

delay.

Here, suspensive appeal delays ran on April 2, 2009. The plaintiff untimely

filed his suspensive appeal bond on April 13, 2009. Although a suspensive appeal

may be dismissed for failure to timely file the bond, the appeal should be maintained

as devolutive. Strother v. Continental Cas. Co., 05-1094 (La.App. 3 Cir. 2/8/06), 923

So.2d 783. Accordingly, we dismiss the suspensive appeal and maintain the appeal

as devolutive. In addition, the plaintiff requests that sanctions be awarded against the

defendant for allegedly filing a frivolous motion to dismiss. Having found merit to

a portion of the motion to dismiss, we deny the request for sanctions.

SUSPENSIVE APPEAL DISMISSED.
APPEAL MAINTAINED AS DEVOLUTIVE.
PLAINTIFF’S REQUEST FOR SANCTIONS DENIED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.

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