POLARIS ENG. v. PELICAN REFINING CO., 11-656 (La.App. 3 Cir. 8/31/11)

POLARIS ENGINEERING, INC. v. PELICAN REFINING COMPANY, LLC.

No. CA 11-656.Court of Appeal of Louisiana, Third Circuit.
August 31, 2011. NOT DESIGNATED FOR PUBLICATION

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[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2006-2137 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE.

Edward J. Fonti, Jones, Tete, Fonti Belfour, Lake Charles, LA, COUNSEL FOR DEFENDANT/APPELLANT: Pelican Refining Company, LLC.

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Christopher Paul Ieyoub, Plauche, Smith Nieset, Lake Charles, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Polaris Engineering, Inc.

Tyson Brahm Shofstahl, Adams Reese, New Orleans, LA, COUNSEL FOR THIRD PARTY/APPELLEE: James Rivers Ins. Co.

Thomas William Darling, Attorney at Law, Baton Rouge, LA, COUNSEL FOR THIRD PARTY/APPELLEE: Maryland Casualty Co.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.

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COOKS, Judge.

The plaintiff-appellee, Polaris Engineering, Inc. (Polaris), moves to dismiss the suspensive appeal filed by the defendant-appellant, Pelican Refining Company, LLC. (Pelican), based on Pelican’s failure to post a suspensive appeal bond. For the reasons given herein, we grant the motion, ordering the dismissal of the suspensive appeal, and maintain the appeal as devolutive.

Following the rendition of a judgment on December 14, 2010, Pelican filed a motion for new trial, which the trial court denied. Thereafter, Pelican filed its motion for a suspensive appeal. The trial court signed the order granting the suspensive appeal on March 1, 2011, and in the order of appeal, set the amount of the suspensive appeal bond for $6,875,000.00.

The record in this appeal was lodged in this court on May 31, 2011. Polaris filed its Motion to Dismiss Suspensive Appeal, and to Maintain as Devolutive Appeal in this court on July 1, 2011. In the motion, Polaris points out that Pelican has not filed a suspensive appeal bond. Therefore, Polaris asks that this court dismiss the suspensive appeal and maintain the appeal as devolutive.

In Strother v. Continental Casualty Co., 2005-1094 (La.App. 3 Cir. 2/8/06), 923 So.2d 783, the appellee moved to dismiss the suspensive appeal since the appellants had failed to post any suspensive appeal bond. First, this court noted that, ordinarily, a motion to dismiss a suspensive appeal due to the appellant’s failure to post bond timely must be filed no later than three days after the lodging of the record in the court of appeal or the return date, whichever is later pursuant to La. Code Civ.P. art. 2161. Nevertheless, this court stated i Strother, “We find that when the appellant has not filed any bond, a motion to dismiss the suspensive appeal is not untimely if filed beyond the three day time period set forth in Article 2161.” 2005-1094, p. 2, 923 So.2d at 785. This court dismissed the suspensive appeal in Strother and maintained the appeal as devolutive. Likewise, in the instant case, since Pelican has failed to post

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any suspensive appeal bond, we grant the motion, dismiss the suspensive appeal, and maintain the appeal as devolutive.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED. SUSPENSIVE APPEALDISMISSED. APPEAL MAINTAINED AS DEVOLUTIVE.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.

Rule 2-16.3 Uniform Rules, Court of Appeal.

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