Joseph H. Fontenot, Jr. v. Wal-Mart

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCM 07-1082 AND WCA 07-1152

JOSEPH H. FONTENOT, JR.
VERSUS
WAL-MART

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APPEAL FROM THE
WORKERS’ COMPENSATION COURT, DISTRICT 4
PARISH OF LAFAYETTE, NO.04-07245
HONORABLE ELIZABETH ANNE WARREN,
WORKER’S COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Michael G. Sullivan,
Judges.

REMANDED.

James Steven Gates
Morrow, Gates & Morrow, L.L.C.
630 S. Main Street
Post Office Drawer 219
Opelousas, Louisiana 70571-0219
(337) 942-6529
COUNSEL FOR PLAINTIFF/APPELLANT:
Joseph H. Fontenot, Jr.

Charles Martin Kreamer, Sr.
Allen & Gooch
A Law Corporation
1015 St. John Street
Post Office Box 3768
Lafayette, Louisiana 70502-3768
(337) 291-1390
COUNSEL FOR DEFENDANT/APPELLEE:
Wal-Mart

PETERS, Judge.

The Appellee, Wal-Mart, moves to have this case remanded to the trial
court so that Appellee may have a chance to traverse the right of Appellant,
Joseph H. Fontenot, Jr., to proceed in forma pauperis. For the reasons given
below, we grant the motion to remand.
This case involves a worker’s compensation claim in which judgment
was rendered on January 24, 2007. Appellant filed a motion for new trial
which was denied by the trial court on April 17, 2007. On June 22, 2007, the
trial court granted Appellant’s motion to file a devolutive appeal, and on July
6, 2007, the trial court granted Appellant’s motion to proceed with his appeal
in forma pauperis.
Appellee asserts that because Appellant did not file his pauper
application until he took his appeal, Appellee did not get an opportunity to
traverse Appellant’s right to proceed in forma pauperis. Appellee also asserts
that Appellant is not entitled to proceed with his appeal in forma pauperis
because Appellant has substantial assets and because Appellant’s monthly
income exceeds his monthly expenses. Therefore, Appellee seeks to have this
court remand this case to the Worker’s Compensation Court, District 4, so that
Appellee can traverse Appellant’s right to proceed in forma pauperis.
This court has held:
Once the trial court signs an order for a devolutive appeal,
it loses jurisdiction to entertain a motion to traverse the pauper
status of a party. La.Code Civ.P. art. 2088. Therefore, the
defendant’s appropriate remedy is to seek a remand of this appeal
by this court to the trial court for a hearing on a motion to
traverse.

Brack v. Ferrington, 05-13 (La.App. 3 Cir. 2/16/05), 895 So.2d 617, 618.
Accordingly, in the instant case, when the worker’s compensation court
granted Appellant’s motion for devolutive appeal on June 22, 2007, it lost
jurisdiction to entertain a motion to traverse Appellant’s pauper status.
Because Appellant did not proceed in forma pauperis in the trial court
proceedings, this is not a situation in which Appellee had ample opportunity
to traverse the Appellant’s pauper status before the appeal order was granted.
See McKellar v. Mason, 154 So.2d 237 (La.App. 4 Cir. 1963). As such, we
find that Appellee should be granted an opportunity to have its motion to

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traverse heard. Therefore, we remand this matter to the Worker’s
Compensation Court, District 4, for a hearing on Appellee’s motion to traverse
Appellant’s right to proceed in forma pauperis.
REMANDED.

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