COVINGTON v. CLARK SAND CO INC (2025)

Writ application granted. See per curiam.

On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of East Baton Rouge

PER CURIAM

It is well settled that appeals are favored in the law. Chauvin v. Shell Oil Co., 17-43 (La. 3/31/17), 214 So.3d 855; Shell Pipeline Corp. v. Kennedy, 00-3207 (La. 10/16/01), 799 So.2d 475, 478; General Motors Acceptance Corp. v. Deep South Pest Control Inc., 247 La. 625, 173 So.2d 190, 191 (1965).

Unless the ground urged for dismissal is free from doubt, the appeal should be maintained. Schiff v. Pugh, 22-210 (La. 4/12/22), 335 So.3d 830; Jackson v. Family Dollar Stores of Louisiana Inc., 18-170 (La. 6/27/18), 251 So.3d 368, 372; U.S. Fire Insurance Co. v. Swann, 424 So.2d 240, 244-45 (La. 1982).

Louisiana Code of Civil Procedure article 2126(F) provides: If the appellant pays the costs required by this Article, the appeal may not be dismissed because of the passage of the return day without an extension being obtained or because of an untimely lodging of the record on appeal.

In this case the costs were paid by the plaintiff prior to the hearing on a motion to dismiss. Thus, dismissal of the appeal is improper. See In re Singleton, 22-CA-285 (La. App. 5th Cir. 3/1/23), 360 So.3d 70, 75. We find the grounds cited by the court of appeal for dismissal of the appeal are not free from doubt. The court of appeal therefore erred in dismissing the appeal.

Accordingly, the writ is granted. The judgment of the court of appeal dismissing the appeal is vacated, and the appeal is reinstated. The case is remanded to the court of appeal for consideration of the appeal on the merits.

This matter concerns the dismissal of an appeal due to plaintiffs/appellants’ failure to timely designate the record on appeal and pay the original estimated appeal costs. There appears to be no question plaintiffs/appellants did not strictly comply with statutory time frames for payment of estimated appeal costs provided in the initial notice from the clerk, or for designating the record on appeal. However, considering those facts in light of statutory language and jurisprudence which supports maintaining the appeal, I agree with the per curiam opinion finding the lower courts erred in dismissing the appeal.

The underlying facts of this case complicate the issue. In brief sum, La. C.C.P. art. 2126 provides that once an order of appeal is granted, the clerk of court must estimate the costs to prepare the record and send notice of the estimated costs by certified mail to the appellant. Here, the clerk mailed the notice of estimated costs to appellants’ counsel on 12/20/22. Article 2126 requires that the appellant pay the estimated costs within 20 days of the mailing of the notice. Appellants did not pay the costs by the 20-day deadline of 1/9/23. Appellants’ counsel attested that he did not receive the notice from the clerk until 1/30/23, although counsel submitted no other proof of this assertion. Even assuming the notice was received after the deadline, appellants did not seek relief in a manner provided for in the article. Appellants could have moved for an extension of time to pay, or objected to the excessiveness of the costs by filing a written application for reduction. See La. C.C.P. art. 2126(B) & (C). Instead, on 2/1/23 (the day after counsel alleged he received the notice), appellants filed a motion to designate a smaller portion of the record for appeal (presumably dissatisfied with the amount of estimated costs). The district court granted that motion on 2/3/23. This was arguably error because La. C.C.P. art. 2128 provides that a motion designating a particular portion of the record for appeal is to be done within three days after taking the appeal–in this case, within three days of appellants filing their notice of appeal on 11/7/22–making appellants’ request to designate the record technically untimely. When the district court signed the order allowing designation of the record, the clerk mailed an amended notice of estimated appeal costs on 2/15/23, which appellants paid two days later. Defendant then moved to dismiss the appeal, which was granted after a hearing and affirmed by the court of appeal.

Despite the errors or failures described above, appellants timely paid the costs per the amended notice of estimated appeal costs, and those costs were paid before the hearing on the motion to dismiss appeal. As the per curiam opinion recognizes, jurisprudence provides that if costs are paid before the hearing on the motion to dismiss, the appeal should be maintained. See, e.g., In re Singleton, 22-285, p. 6 (La.App. 5 Cir. 3/1/23), 360 So.3d 70, 75 (internal citation omitted) (because plaintiff's payment of appeal costs was made prior to the hearing on defendant's motion to dismiss her appeal, the payment satisfied the intent and purposes of La. C.C.P. art. 2126 and made the motion to dismiss moot); Neill Corp. v. Shutt, 20-0269, pp. 6-7 (La.App. 1 Cir. 1/25/21), 319 So.3d 872, 877 (payment of appeal costs prior to the hearing was indicative of intent not to abandon the appeal and rendered the motion to dismiss the appeal moot); see also Richards v. Everett, 509 So.2d 851, 852-53 (La.App. 4 Cir. 1987) (Schott, J., concurring) (“C.C.P. art. 2126 is not self operative. Before the trial judge may dismiss the appeal for non-payment of costs there must be a hearing which may be provoked by the judge on his own motion or on motion of the clerk or that of a party ․ [W]hen the costs are already paid at the time of the hearing the statute has no application by its own terms.”).

Maintaining the appeal is consistent with the purpose of Article 2126, as confirmed by this court:

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 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. The focus of district courts in deciding Article 2126 motions to dismiss should be on securing payment of costs in order to move appeals forward rather than on dismissing appeals, although obviously not abandoned, simply because a motion was filed (as in this case) immediately after expiration of the twenty-day period for paying the costs.

Pray v. First Nat. Bank of Jefferson Par., 634 So.2d 1163, 1163 (La. 1994) (emphasis added). Article 2126 is not jurisdictional. Courts have found it is a procedural vehicle designed solely for the efficient administration of the court. Singleton, 22-285 at 5, 360 So.3d at 75; Reed v. Columbia/HCA Info. Serv., Inc., 99-1315, p. 6 (La.App. 5 Cir. 4/25/00), 761 So.2d 625, 628; Ronquille v. State, Dept. of Wildlife and Fisheries, 532 So.2d 891, 894 (La.App. 5 Cir. 1988). Considering the particular facts of this case, it seems clear that appellants had no intention to abandon the appeal, and the above jurisprudence suggests that a dismissal under Article 2126 is not appropriate. Moreover, appeals are favored, and any doubt should be resolved in favor of maintaining rather than dismissing an appeal. As this court has expressed:

In recognition of the fact that procedural rules are merely to implement the substantive law, as well as the fact that appeals are constitutionally guaranteed (La. Const. art. V, § 5 and § 10), this Court has consistently held that appeals are favored in the law and should be maintained unless a legal ground for dismissal is clearly shown. An appeal is not to be dismissed for a mere technicality. Unless the ground urged for dismissal is free from doubt, the appeal should be maintained.

Shell Pipeline Corp. v. Kennedy, 00-3207, pp. 4-5 (La. 10/16/01), 799 So.2d 475, 478 (internal citations omitted; emphasis in original).

In sum, believing, as did Judge Schott, that La. C.C.P. art. 2126 “is not self operative” and a hearing is required, when the costs have been paid prior to the hearing, Article 2126 has no application and the appeal should be maintained because the statutory goal of having costs paid is satisfied. The jurisprudence favoring appeals is consistent with this reading of the statute.

For these reasons, I agree with the per curiam opinion reinstating the appeal.

The clerk of court mailed the notice of estimated costs to appellants’ counsel on December 20, 2022. Payment was due within 20 days. La. Code Civ. Proc. art. 2126. The costs were not paid, nor was relief sought as provided for in the article. The law allows for designation of the record for appeal within three days of taking the appeal. La. Code Civ. Proc. art. 2128. Appellant missed that deadline and, on February 1, 2023, an untimely motion to designate the record was filed. By allowing this appeal, the majority writes these deadlines out of the law. There are too many violations to ignore. The lower courts correctly dismissed the appeal. I dissent.

Weimer, C.J., additionally concurs and assigns reasons. Crain, J., dissents and assigns reasons.