25,991 La.App. 2 Cir. 5/4/94, North American Land Development v. Tucker
| Decision Date | 04 May 1994 |
| Citation | 637 So.2d 654 |
| Parties | 25,991 La.App. 2 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Madeleine M. Slaughter, Monroe, for appellant.
Bruscata, Tramontana & Underwood by J. Antonio Tramontana, Carey B. Underwood, Monroe, for appellee.
Before LINDSAY and WILLIAMS, JJ., and PRICE, J. Pro Tem.
A writ was granted by this court to review the holding of the Monroe City Court that, in order to perfect a suspensive appeal, the suspensive appeal bond must be filed within ten days of the judgment rendered by it as provided by LSA-C.C.P. art. 5002, and that the delay provided by LSA-C.C.P. art. 2123 is inapplicable to city courts.
Maria Tucker and Enrique Cueto obtained a money judgment against North American Land Development (NALD) in Monroe City Court on July 12, 1993. The judgment was signed and filed on July 14, 1993. NALD timely moved for a suspensive appeal on the day after the judgment was filed and the trial court signed the order of appeal on July 26, 1993. However, NALD did not post the appeal bond until August 16, 1993. On August 23, 1993, Tucker and Cueto filed a Rule to Show Cause challenging the suspensive nature of the appeal because the bond was not timely filed within the ten-day delay provided by LSA-C.C.P. art. 5002. NALD contended the bond was timely under the provisions of LSA-C.C.P. art. 2123, which it contends is applicable to city courts as well as district courts.
The Monroe City Court judge ruled that article 5002 controls and that the appeal was not timely perfected as suspensive, and ordered that the appeal be considered as devolutive. NALD herein seeks review of this judgment, asserting that the applicable delay period is thirty days after expiration of the three day delay for applying for new trial. We granted the writ application, in part, to determine the sole issue of whether the applicable delay period is ten days or thirty days.
The instant issue is whether NALD's suspensive appeal was perfected by a timely filing of the appeal bond. Applicant, NALD, contends that the cash appeal bond was timely because the delay for appeals from district court judgments also applies to appeals from city court judgments.
Louisiana Code of Civil Procedure articles 5001(B) and 2123 provide as follows Art. 5001. Appeals from city and parish courts
B. Appeal shall be on the record and shall be taken in the same manner as an appeal from the district court.
Art. 2123. Delay for taking suspensive appeal
A. Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely; ...
However, the delay for an appeal from city court is governed by LSA-C.C.P. art. 5002 as follows:
Art. 5002. Delay for appeal
A. An appeal from a judgment rendered by a city court or a parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary.
B. When an application for new trial is timely filed, however, the delay for appeal commences on the day after the motion is denied, or from service of notice of the order denying a new trial, when such notice is necessary.
By its own terms, the C.C.P. article 2123 thirty day delay applies "except as otherwise provided by law." The legislature has otherwise provided for a different time period for city courts by the provisions of C.C.P. article 5002, as set forth above.
In setting this ten day delay period for appeal of a city court judgment, the legislature did not distinguish between devolutive and suspensive appeals. The language of article 5002 is simple and unambiguous. NALD's appeal of the July 12, 1993 judgment by the Monroe City Court "may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary."
In order to timely perfect a suspensive appeal from a city court judgment, the appeal bond as well as the motion for appeal must be filed within the article 5002 ten day period. The Research Group, Inc. v. Sharp, 430 So.2d 165, 167 (La.App.2d Cir.1983); Associated Agencies, Inc. v. LaBorde, 315 So.2d 430 (La.App. 4th Cir.1975) (applying former C.C.P. article 5002); Haywood v. Salter, 421 So.2d 1190, 1194 (La.App.2d Cir.1982); Dusenberry v. Andrus, 510 So.2d 386, 387 (La.App. 1st Cir.1987). See also, Gissel v. Sehdeva, 413 So.2d 1370 (La.App. 1st Cir.1982) and Poynter, Mannear & Speer v. Suggs, 431 So.2d 116, 117 (La.App. 1st Cir.1983) (both applying former C.C.P. article 5003). As stated in Gissel, supra,
The Code of Civil Procedure articles dealing with courts of limited jurisdiction were amended by Act 46 of 1979. Prior to this act, La.C.C.P. art. 5002 specifically provided that the appeal bond must be filed within the delay allowed for taking an appeal in city court. This delay was ten days. However, this provision was eliminated in the new articles, and La.C.C.P. art. 5003, which now sets forth the delay for taking an appeal from a city court judgment, contains no reference to the time allowed for the filing of the appeal bond.
Historically, both in city and district courts, the delay for filing a suspensive appeal bond has always been the same as the delay for taking a suspensive appeal. In fact, as noted above, former Article 5002 did not provide a specific number of days in which a suspensive appeal bond was required to be filed, but rather merely referred to the delay for taking the suspensive appeal and required that the bond be filed within that delay. While there is no specific provision setting forth the delay for filing a bond in connection with a suspensive appeal from a city court judgment, we find that Act 46 of 1979 was not intended by the legislature to change the historical requirement for filing a suspensive appeal bond within the delay allowed for taking the suspensive appeal. We, therefore, hold that,...
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