Agilus Health (James Wilbanks) v. Dresser, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-315

AGILUS HEALTH (JAMES WILBANKS)

VERSUS

DRESSER, INC., ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02
PARISH OF RAPIDES, NO. 08-05823
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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DAVID E. CHATELAIN*
JUDGE

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Court composed of Oswald A. Decuir, J. David Painter, and David E. Chatelain,
Judges.

MOTION TO DISMISS SUSPENSIVE APPEAL AND
CONVERT TO DEVOLUTIVE APPEAL DENIED.

Patrick A. Johnson
D. Paul Gardner, Jr.
Allen & Gooch
Post Office Box 81129
Lafayette, Louisiana 70598-1129
(337) 291-1430
Counsel for Defendants/Appellants:
Liberty Mutual Insurance Company
Dresser, Inc.

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Edward R. Wicker, Jr.
Barrasso, Usdin, Kupperman, Freeman and Sarver
909 Poydras Street, Suite 1800
New Orleans, Louisiana 70112
(504) 589-9700
Counsel for Defendants/Appellants:
Liberty Mutual Insurance Company
Dresser, Inc.

Edward E. Roberts, III
Neblett, Beard & Arsenault
Post Office Box 1190
Alexandria, Louisiana 71309
(318) 487-9874
Counsel for Plaintiff/Appellee:
Agilus Health

R. Bray Williams
Joseph Payne Williams, Sr.
Williams Family Law Firm, L.L.C.
Post Office Box 15
Natchitoches, Louisiana 71458-0015
(318) 352-6695
Counsel for Plaintiff/Appellee:
Agilus Health

CHATELAIN, Judge.

The appellee, Agilus Health, Inc., moves to dismiss the suspensive appeal of

the appellants, Dresser, Inc. and Liberty Mutual Insurance Company, and to convert

their appeal to a devolutive appeal. The appellee contends that the appellants posted

their suspensive appeal bond untimely. Finding that the posting of the bond was

timely in accordance with La.R.S. 23:1310.5, we deny the motion to dismiss.

Following trial of this matter, the workers’ compensation judge (WCJ)

rendered a money judgment against the appellants, finding that the appellee had been

underpaid by the appellants in the sum of $23.40 for health care bills associated with

a work-related injury to James Wilbanks. The WCJ also cast the appellants with a

$2,000.00 statutory penalty and with $3,000.00 in attorney fees.

The WCJ signed the written judgment on January 14, 2010. On this date, the

trial court mailed notice of this judgment to all counsel of record. No motion for new

trial was filed. The appellants filed their motion and order for appeal on February 4,

2010, and the order was granted by the WCJ that same date. Appellants also filed on

that date a Motion and Order to Set Bond for Suspensive Appeal, which order was

signed by the WCJ setting a hearing for February 8, 2010.

The hearing on the bond amount was conducted on February 8, 2010, at which

time the WCJ set the bond amount. On February 10, 2010, the WCJ signed an order

setting the bond amount at $5,352.00. The appellants posted the suspensive appeal

bond on March 2, 2010. The record was subsequently lodged in this court.

The appellee filed a motion to convert the appeal from suspensive to

devolutive, arguing that the appellants failed to post their suspensive appeal bond

within thirty days of notice of the final judgment, as provided in La.Code Civ.P.

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2123. The appellants filed an opposition memorandum in this court, contending that

the suspensive appeal bond was timely posted within thirty days of the notice of the

setting of the bond’s amount as provided in La.R.S. 23:1310.5(C).

In a case involving substantially similar facts, this court has issued an opinion

on this date, finding that the posting of the suspensive appeal bond within thirty days

of the notice of the setting of the bond amount was timely. Agilus Health (Kenneth

McKeithen) v. Dresser, Inc., 10-313 (La.App. 3 Cir. 4/14/10), ___ So.3d ___. For

those same reasons, we hereby deny the motion to dismiss the appellants’ suspensive

appeal.

MOTION TO DISMISS SUSPENSIVE APPEAL AND CONVERT TO
DEVOLUTIVE APPEAL DENIED.

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