Opinion
NO. 2018 CW 1119
08-16-2018
JESSIE P. TOUCHET v. DIANE JONES
In Re: Jessie P. Touchet, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 633304. BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
WRIT GRANTED. The trial court erred in granting plaintiff's Motion to Dismiss Defendant's Petition for Suspensive Appeal ex parte. Pursuant to La. Code Civ. P. art. 963, a court may grant ex parte orders only if the order requested by written motion is one to which the mover is clearly entitled without supporting proof. Based on the allegations of and the relief requested in plaintiff's motion, an order dismissing the suspensive appeal was not one in which plaintiff was clearly entitled without supporting proof. Therefore, the motion was required to be served and tried contradictorily with the adverse party, Diane Jones. La. Code Civ. P. art. 963. Moreover, to the extent that plaintiff challenged the sufficiency or solvency of the surety, Todd Jones, on the suspensive appeal bond, plaintiff was required to rule the party furnishing the bond, Diane Jones, into court to show cause why the bond should not be decreed insufficient and invalid pursuant to La Code Civ. P. art. 5123. Accordingly, the July 9, 2018 order granting plaintiff's Motion to Dismiss Defendant's Petition for Suspensive Appeal is vacated and the matter is remanded to the trial court for further proceedings not inconsistent with this action.
TMH
VGW
PMc
COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT