Gray v. Blanche

Full title: BOBBY J. GRAY, PLAINTIFF-APPELLANT, v. C.J. BLANCHE, ET AL.…

Court: Court of Appeal of Louisiana, Third Circuit

Date published: Oct 18, 1985

477 So. 2d 189 (La. Ct. App. 1985)

Opinion

No. 85-672.

October 18, 1985.

APPEAL FROM 15TH JUDICIAL DISTRICT COURT, PARISH OF ACADIA, STATE OF LOUISIANA, HONORABLE DON AARON, JR., J.

Sidney J. Zeller, Jo Ann Nixon, Lafayette, for plaintiff-appellant.

Denise A. Nagel, Baton Rouge, Jeansonne, Briney Goudelocke, Katherine Loos, Lafayette, for defendants-appellees.

Before LABORDE, YELVERTON, and KNOLL, JJ.

YELVERTON, Judge.

MOTION TO DISMISS

The defendant-appellee, National Supply Company, a Division of Armco, Inc., moves to dismiss the appeal of the plaintiff-appellant, Bobby J. Gray, on the grounds that there is no codal provision allowing an appeal from a judgment dismissing an appeal on the grounds of abandonment.

On January 2, 1985, the trial court rendered a judgment sustaining the defendant's exceptions of peremption and prescription and dismissing the plaintiff's suit. On March 4, 1985, the plaintiff was granted a devolutive appeal from the January 2, 1985 judgment. On March 8, 1985, the Clerk of Court notified the plaintiff that, pursuant to Louisiana Code of Civil Procedure Article 2126 the plaintiff had twenty days from receipt of notice within which to pay the estimated costs of the appeal.

The plaintiff failed to pay the estimated costs. As a result, the Clerk of Court moved to dismiss the appeal, under Louisiana Code of Civil Procedure Article 2126. The trial court then exercised its option under Louisiana Code of Civil Procedure Article 2126 and dismissed the plaintiff's appeal on the grounds of abandonment. From the judgment of abandonment, the plaintiff devolutively appealed.

The defendant contends that the plaintiff cannot appeal a judgment of abandonment as there are no codal provisions for such an appeal.

Under Louisiana Code of Civil Procedure Article 2126, when an appellant fails to pay the estimated costs, the trial court at its discretion may either dismiss the appeal on the grounds of abandonment or grant a ten day period within which costs must be paid in full.

A judgment dismissing an appeal as being abandoned is a final judgment as the judgment puts an end to the appellant's appeal. Therefore, under Louisiana Code of Civil Procedure Article 2083, a judgment dismissing an appeal on the grounds of abandonment is an appealable judgment.

For the foregoing reasons, the defendant's motion to dismiss is denied.

MOTION DENIED.