Perkins v. Roy O. Martin Lumber Co.

• Decision Date: 06 April 2016
• Docket Number: No. 15–571.,15–571.
• Citation: 189 So.3d 531
• Parties: Edward PERKINS v. ROY O. MARTIN LUMBER CO., LLC, et al.
• Court: Court of Appeal of Louisiana — District of US

189 So.3d 531

Edward PERKINS

v.ROY O. MARTIN LUMBER CO., LLC, et al.

No. 15–571.

Court of Appeal of Louisiana, Third Circuit.

April 6, 2016.

Donna U. Grodner, Grodner Law Firm, Baton Rouge, LA, for Plaintiff/Appellant Edward Perkins.

H. Bradfor Calvit, Eli J. Meaux, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, for Defendant/Appellee William Earl Hilton, Sheriff of Rapides Parish.

James D. "Buddy" Caldwell, Attorney General, Lauren I. White, Assistant Attorney

General, Louisiana Department of Justice, Division of Risk Litigation, Alexandria, LA, for Defendant/Appellee State of Louisiana, through the Department of Public Safety and Corrections.

Court composed of SYLVIA R. COOKS, MARC T. AMY, BILLY HOWARD EZELL, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.

COOKS

, Judge.

FACTS AND PROCEDURAL HISTORY

This litigation arose from a Petition for Damages/Slip and Fall filed by Plaintiff, Edward Perkins. In the petition, Plaintiff alleged on March 21, 2012, he suffered a serious injury while participating in a work release program at the MARTCO plywood facility in Chopin, Louisiana. On that date, he was an inmate in the custody of the Louisiana Department of Corrections housed at the Rapides Parish Work Release Center.

According to Plaintiff, upon arriving at the MARTCO facility on the date in question, he was told by his supervisor to clean debris around the drop chute. To do so, Plaintiff had to drop to his knees to clean underneath. While getting back on his feet, he alleged he slipped on the wet floor and attempted to keep himself upright by grabbing a nearby cage. When he grabbed it, the cage was pulled down on top of Plaintiff and his head was trapped under the lift.

Named as defendants in the suit were the State of Louisiana, through the Department of Public Safety and Corrections (hereafter DOC), Sheriff William Earl Hilton, as the administrator of the Rapides Parish Work Release Center, and MARTCO, the work release employer. It was alleged by Plaintiff that either or both the Sheriff and/or the DOC breached a duty to provide Plaintiff with a safe workplace. At the same time suit was filed, Plaintiff filed a Motion to Proceed in Forma Pauperis, seeking pauper status to avoid having to pay the cost of court associated with the suit. The pauper motion is found in the record joined with an "order" and date stamped on March 8, 2013 by the Rapides Parish Clerk of Court. Although Plaintiff was out of prison at the time his suit was filed, he was at some point re-incarcerated and then released on September 23, 2014. The record does not show any action taken by the trial court on the pending March 2013 pauper motion. However, counsel for Plaintiff received and paid court costs subsequent to the filing of the pauper motion when requested by the clerk's office.

Although Plaintiff was a DOC inmate assigned to the Rapides Parish Work Release Center and allegedly injured while working in that capacity, the district court in Rapides Parish found the injury did not arise out of a "condition of confinement" and transferred the case to Natchitoches Parish, the parish where the MARTCO plywood facility was located. No party objected.

On June 10, 2013, the Sheriff answered the petition, filing a general denial. The DOC also answered, asserting it had no authority over the Rapides Parish Work Release program. On April 27, 2014, the Sheriff filed a motion for summary judgment and for sanctions against Plaintiff. The Sheriff maintained Plaintiff's exclusive remedy was in workers' compensation. The Sheriff also argued he had no duty as a matter of law to provide a safe workplace while Plaintiff was working for a work release employer. A similar motion seeking summary judgment on behalf of DOC was filed on May 9, 2014.

After a hearing on the motions for summary judgment and motion for sanctions, the trial court granted summary judgment in favor of DOC and the Sheriff. The trial court also found the basis for Plaintiff's suit was frivolous and granted the Sheriff's motion for sanctions, awarding sanctions in the amount of $10,142.40.

Plaintiff filed a Motion and Notice of Appeal on August 4, 2014, which was granted on August 7, 2014. The Natchitoches Parish Clerk of Court sent Plaintiff the estimated costs for the record pursuant to La.Code Civ.P. art. 2126

, but those costs were not paid. Following Plaintiff's release from prison on September 23, 2014, Plaintiff's counsel filed a second application for pauper status on October 8, 2014, which was denied by the trial court due to a lack of information in the application. This second pauper motion was in response to a revised estimate of costs mailed to Plaintiff's counsel by the Natchitoches Parish Clerk of Court on October 1, 2014. The Sheriff filed a Motion to Dismiss Appeal on November 3, 2014, alleging Plaintiff failed to pay the required estimated costs. On December 1, 2014 (before the ruling on that motion), Plaintiff filed a motion to continue the Motion to Dismiss Appeal and a motion for an extension to pay appeal costs and/or to perfect pauper status. He also filed a third application for pauper status, contending he was not required to pay the costs of appeal set by the clerk of court because he was in fact a pauper. At the hearing, it was noted Plaintiff had filed a pending motion for pauper status in March of 2013 in Rapides Parish, prior to the transfer to Natchitoches Parish, which was not acted upon by any trial judge. A hearing on December 15, 2014 was held on the Motion to Dismiss Appeal, at which time the trial court granted the motion, finding the costs had not been paid. The trial court believed Plaintiff's prior pending pauper application in Rapides Parish had no effect on Plaintiff's pauper status in Natchitoches Parish, and concluded Plaintiff had never been adjudicated a pauper. A judgment reflecting that ruling was signed on December 18, 2014.

Plaintiff's pending December 1, 2014 pauper motion, filed before the dismissal of his appeal on December 18, 2014, and argued at the December 15, 2014 hearing, was granted by a different trial judge on January 20, 2015.¹ On January 5, 2015, Plaintiff filed a Motion and Notice of Appeal, requesting an appeal from the December 18, 2014 judgment which dismissed his previous appeal for failure to pay costs. Plaintiff's Notice of Appeal recited he desired to appeal the December 18, 2014 judgment "adjudicating various motions." That motion for appeal was granted on January 14, 2015.

On appeal, the Sheriff and DOC both filed Motions to Dismiss the Appeal from the December 18, 2014 judgment, alleging Plaintiff abandoned the second appeal by failing to brief any errors in the December 18, 2014 judgment. They assert Plaintiff "has only briefed the merits of the June 27, 2014 and July 24, 2014 judgments, [and] ignor[ed] the December 18, 2014 dismissal of his first appeal of those judgments."

At oral argument, counsel for Plaintiff acknowledged no assignment of error was being asserted against DOC; and, thus, no appeal was being pursued against DOC. In accordance with that admission, DOC filed a Motion to Dismiss, which this court hereby grants, dismissing Plaintiff's appeal of the trial court's grant of summary judgment dismissing his claims against DOC.

I. Sheriff's Motion to Dismiss Appeal.

The Sheriff also filed a Motion and Order to Dismiss Appeal with this court, asserting Plaintiff has only appealed the judgment rendered on December 18, 2014. That judgment granted the Sheriff's November 3, 2014 motion to dismiss the appeal from the prior judgments as abandoned for failure to pay fees for the preparation of the record pursuant to La.Code Civ.P. art. 2126

.

The Sheriff argues:

None of the rulings contained in the December 18, 2014 judgments have been assigned as errors in [Plaintiff's] current appeal of that judgment. Instead [Plaintiff] has simply ignored the trial court's December 18, 2014 judgment, dismissing his appeal of the dismissal of his claims and the imposition of sanctions against his attorney and has instead briefed the merits as if the December 18, 2014 judgment was granted in his favor. Accordingly, [Plaintiff] does not currently have a viable appeal of the merits or sanctions despite what his brief might imply.

Plaintiff has opposed the Sheriff's Motion to Dismiss, arguing in brief as follows:

[Plaintiff] had a pauper motion pending at the time that he filed the notices of appeal. Upon his release, [Plaintiff] filed another pauper motion, which the trial court denied. [Plaintiff] then updated that pauper and had a pending motion for pauper at the time of the hearing on the motion to dismiss his appeal. The pauper motion was granted on the same date that the appeal was dismissed; therefore, there was no longer any procedural impediment to the appeal and the record of the appeal was prepared and docketed.

In support of this argument, Plaintiff cites Reed v. Columbia/HCA Info. Serv., Inc., 99–1315 (La.App. 5 Cir. 4/25/00), 761 So.2d 625

, noting the appellate court there found where the appeal costs have been posted prior to the hearing on the motion to dismiss, the later payment satisfied the intent and purposes of La.Code Civ.P. art. 2126 and dismissal of the appeal for failure to timely pay the costs within twenty days was improper.

Of particular relevance, this court in Lousiana Bd. Of Massage Therapy v. Fontenot, 04–1525 (La.App. 3 Cir. 5/4/05), 901 So.2d 1232

, discussed the purpose behind dismissing appeals for failure to pay costs as required by La.Code Civ.P. art. 2126 :

In Pray v. First National Bank of Jefferson Parish, 93–3027 (La.2/11/94), 634 So.2d 1163, 1163

, the supreme court explained the dual purpose of La.Code Civ.P. art. 2126 :

The primary purpose of La.Code Civ.P. art. 2126's authorization to dismiss appeals for non-payment of costs is to dismiss the appeal as abandoned, in those cases in which the appellant files a timely appeal and thereafter decides not to pursue it. A secondary purpose is to...