10 696 DE ANGELO TILLMAN v. HERBERT PAUL SIMONS ET AL (2010)

(NOT FOR PUBLICATION)

of Court of the costs of this appeal and the deadline for paying such costs.   Once again the costs were not timely paid.   No extension had been granted for payment of these appeal costs.   On August 4, 2009, Appellants' counsel paid the appeal costs in the second appeal.   On August 6, 2009, Defendants/Appellees filed a motion to dismiss the second appeal for failure to pay costs timely.   On November 9, 2009, Plaintiffs/Appellants filed a motion for reconsideration of dismissal of appeal.   Following a hearing on the matter, the court rendered judgment on December 1, 2009 granting Plaintiffs/Appellants' motion for reconsideration allowing the appeal signed on June 8, 2009 to be reinstated.   Thus, the only matter now before this court on appeal is the dismissal of Plaintiffs/Appellants' first appeal which sought to attack the dismissal of Plaintiffs' case and the denial of the motion to continue the trial date.

LAW AND ANALYSIS

We find no error in the trial court's dismissal of the first appeal.   The record clearly shows that the Appellants' counsel received notice of the appeal costs and notice that if the costs were not paid by a certain date the appeal “shall be dismissed.”   This is in conformity with the express provisions of the Louisiana Code of Civil Procedure, Article 2126, which provides in pertinent part:

A.  The clerk of the trial court, immediately after the order of appeal has been granted, shall estimate the costs of the preparation of the record on appeal, including the fee of the court reporter for preparing the transcript and the filing fee required by the appellate court.   The clerk shall send notices of the estimated costs by certified mail to the appellant and by first class mail to the appellee.

B. Within twenty days of the mailing of notice, the appellant shall pay the amount of the estimated costs to the clerk.   The trial court may grant one extension of the period for paying the amount of the estimated costs for not more than an additional twenty days upon written motion showing good cause for the extension.

“․”

E. If the appellant fails to pay the estimated costs, or the difference between the estimated costs and the actual costs, within the time specified, the trial judge, on his own motion or upon motion by the clerk or by any party, and after a hearing, shall:

(1) Enter a formal order of dismissal on the grounds of abandonment;  or

(2) Grant a ten day period within which costs must be paid in full, in default of which the appeal is dismissed as abandoned.

Appellants did not file for an extension of time until two weeks after the date costs were due to be paid.   The motion should have been filed before the due date.   Counsel for Appellants makes no showing of any good cause as to why his motion for extension of time to pay costs was filed so long after the due date.   We review the trial court's decision to dismiss the first appeal for failure to pay costs under an abuse of discretion standard.  Pray v. First Nat'l Bank of Jefferson Parish, 93-3027 (La.2/11/94), 634 So.2d 1163.   See also Morgan v. Simon, 00-1556 (La.App. 3 Cir. 2/28/01), 80 So.2d 626 and La. Bd. Of Massage Therapy v. Fontenot, 04-1525 (La.App. 3 Cir. 5/4/05), 901 So.2d 1232.

The trial court noted in its judgment that it gave due consideration to “the record and the argument of counsel, including the time which has elapsed since the entry of the original judgment and the filing of the Notice of Appeal.”   We cannot say the trial court abused its discretion in this case by dismissing the appeal for failure to timely pay costs.   The trial court held a hearing as it is required to do.   It was incumbent on Appellants to present evidence to demonstrate good cause to allow more time for payment of costs.   They failed to do so.   The record evidences much fairness on the part of the trial court in that as to the second appeal for which costs were not timely paid, the trial court allowed that appeal to proceed because the costs were paid before the hearing could be had.   This action is in conformity with our prior decision in Fontenot, 901 So.2d at 1236-37.   The matter before us, however, does not

present the same circumstance.   Appellants' counsel states in his brief that the trial court granted a thirty-day extension to pay costs and then held a hearing before that period expired and therein dismissed the first appeal.   As we have noted, the record does not support this representation.   A review of the record discloses no such order was signed.   The Louisiana Supreme Court's language in the Pray case is instructive in these matters.   As set forth in Laborde v. Presbyterian Village of Homer, La., 32,639, (La.App. 2 Cir. 1/26/00), 750 So.2d 1182, 1184 citing Pray:

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

In Laborde, the Louisiana Second Circuit Court of Appeal upheld the trial court's dismissal of an appeal for failure to timely pay costs.   The second circuit, relying on our decision in Sandoz v. State Farm Mutual Auto. Ins. Co., 620 So.2d 441 (La.App. 3d Cir.1993), held that:

The steps taken by the trial judge regarding Laborde's appeal were warranted, correct and in accordance with the provisions of La.C.C.P. art. 2126.   (Citation omitted) The amendment history of Paragraph E of this statute shows an obvious legislative intent toward stricter standards, both in relation to the allowable time limits for payment of costs and the penalties imposed for failure to pay.   Most obvious is the 1984 amendment which changed the provisions of paragraph E from permissive to mandatory.   In that year, the legislature also reduced the discretionary extension provisions from thirty to ten days and added the default dismissal clause utilized by the trial judge in the present case.   Moreover, the removal of a fine provision notably allowed the court only two penalty options for the nonpayment of costs, both of which provided for dismissal of the appeal.

In the present case, Appellants had from September 11, 2008, the date judgment was signed dismissing the case, to December 23, 2008 to pay the appeal costs.   Appellants did not seek an extension of time to pay the costs until two weeks after the due date.   Appellants had an additional thirty-three days in which to pay the

costs before the hearing scheduled for January 26, 2009.   Had Appellants paid the costs before the hearing date, the trial judge, as he did regarding the second appeal, would have allowed the first appeal to go forward in conformity with our previous decisions.   Appellants assert in brief that appeal costs were paid before a hearing was had.   The record reveals that this occurred as to the second appeal which the trial court has permitted to go forward.   It did not occur as to the first appeal which we find was properly dismissed.

There is no abuse of discretion in the trial court's decision to dismiss the first appeal for failure to timely pay costs and its judgment in that regard is affirmed.   All costs of this appeal are assessed against Plaintiffs/Appellants.

AFFIRMED.

SYLVIA R. COOKS JUDGE