Opinion
No. 2002-CC-1883
July 16, 2002.
IN RE: DeGualle Manor Ltd. etal; Crisler, William J. Jr., Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, Nos. 99-18552, 99-19006, 99-19398; to the Court of Appeal, Fourth Circuit, No. 2002-C-1306
Stay recalled; Writ denied. We find no error in the trial court's application of La. Code Civ.P. art. 2124. Relators are granted 48 hours from the issuance of this order to post the requisite suspensive appeal bonds, should they choose to seek a suspensive appeal.
JLW
PFC
CDK
BJJ
JPV
CDT
KNOLL, J., dissents with reasons. I would grant the writ and remand this matter to the court of appeal. LSA-C.C.P. art. 2124 (C) requires the court of appeal to independently review the amount of security. Without an evaluation of factors such as the defendants' net worth, the court of appeal abused its discretion by not ascertaining whether the amount of security in this case precludes the defendants from their opportunity for a meaningful appeal. See Modjeski Masters v. Carter, 485 U.S. 1031 108 S.Ct. 1590, 99 L.Ed.2d 905 (1988). If the defendants' net worth were to prove less than the amount of security ordered by the trial court, their inability to post security would be tantamount to an arbitrary denial of their access to the courts, violating their right to due process. Therefore, I would remand this matter to the court of appeal for such determination.