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State v. Dennis

Court of Appeals of Louisiana, Fourth Circuit

April 29, 2015



Leon A. Cannizzaro, Jr., District Attorney, J. Edward McAuliffe, III, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/ STATE OF LOUISIANA.


(Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins).



Page 1125

[2014-1258 La.App. 4 Cir. 1] A commercial surety purports to appeal the trial court's denial of its motion to set aside the judgment for bond forfeiture. For the reasons that follow, we find no jurisdiction vests in this Court and dismiss the appeal.


The defendant, Douglas Dennis, was arrested and charged with illegal carrying of a firearm, a violation of La. R.S. 14:95.1. On February 13, 2013, a commercial surety bond was posted by Financial Casualty & Surety, Inc. (" Financial" ) in the amount of $20,000.00. A hearing on motions was set for March 27, 2013. When the defendant failed to appear on March 27, 2013, the State filed a motion for forfeiture of the bond. The trial judge granted the motion, the bond was forfeited, and notice was mailed to Financial.

On October 23, 2013, Financial filed a Motion to Set Aside Judgment of Forfeiture and Petition for Nullity of Judgment. The State timely filed an opposition, and after a hearing on the merits, the trial court denied Financial's motion in open court. It is from this ruling that Financial appeals.

[2014-1258 La.App. 4 Cir. 2] JURISDICTIONAL ISSUE

While the appeal was pending in this Court, the State filed a motion to dismiss Financial's appeal arguing that bond forfeiture proceedings are civil in nature and

Page 1126

Financial failed to comply with the requirements to take such an appeal. Financial responded contending that bond forfeitures are governed by the Louisiana Code of Criminal Procedure and because those provisions were followed, the State's motion to dismiss is without merit. We agree with the State.

Bond forfeiture proceedings are unique because they are " intrinsically civil matters," and their outcomes are based upon provisions found within the Code of Civil Procedure and related jurisprudence. See State v. Allen, 11-2843, p. 2 (La. 4/13/12), 84 So.3d 1288, 1288; State v. Nellon, 12-1429, p. 5 (La.App. 4 Cir. 9/4/13), 124 So.3d 1115, 1118; City of New Orleans v. Young, 07-0925, pp. 1-2 (La.App. 4 Cir. 9/12/07), 967 So.2d 539, 540.

After the trial court denied Financial's motion, Financial orally noted its " intent to take an appeal," and was given a December 12, 2013 return date. Financial then filed a Notice of Appeal[1] and Designation of the Record for Appeal on December 4, 2013. Therefore, the question raised by the set of circumstances presented in the instant case is whether the timely filing of the notice of appeal was sufficient to meet the requirements for filing an appeal.

This Court has stated that perfecting an appeal of a judgment in a civil matter, such as here, requires three procedural elements: " (1) a motion or petition for appeal, (2) an order of appeal, and (3) notice of appeal." Sibley v. Bremermann, 05-0547, p. 2 (La.App. 4 Cir. 1/11/06), 923 So.2d 187, 188 (quoting [2014-1258 La.App. 4 Cir. 3] Ratcliff v. Boydell, 566 So.2d 197, 199 (La.App. 4th Cir. 1990). In addition, it is well-established that the jurisdiction of the appellate court attaches upon the granting of the order of appeal. La. C.C.P. art. 2121; [2] Brennan's, Inc. v. Colbert, 13-0943, p. 4 (La.App. 4 Cir. 9/25/13), 125 So.3d 537, 539 (quoting Barnes v. L.M. Massey, Inc., 93-1080, p. 3 (La.App. 1 Cir. 5/20/94), 637 So.2d 799, 801); La. C.C.P. art. 2088. Thus, " [f]ailure of the appellant to obtain the order of appeal forfeits his right to appeal" and " the appellate court has the authority to dismiss an appeal on its own motion or own motion of any party when the appellant has no right to appeal." Stein v. Martin, 98-1370 (La.App. 4 Cir. 11/18/98), 723 So.2d 1038, 1040 (citations omitted); see also Bamburg v. St. Francis Med. Ctr., 45,024, pp. 3-4 (La.App. 2 Cir. 1/27/10), 30 So.3d 1071, 1074; Osborn Painting, Inc. v. Auxilien, 04-1330, p. 5 (La.App. 5 Cir. 3/29/05), 900 So.2d 969, 972. However, the Louisiana Supreme Court has stated that no appeal shall be dismissed " when the motion for appeal is filed timely but the order is not signed until after the delay has run." Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183, 186 (La. 1981); Bremermann, 05-0547, p. 3, 923 So.2d at 189; Lifecare Hospitals, Inc., v. B & W Quality Growers, Inc., 39,065, p. 2 (La.App. 2 Cir. 7/8/04), 875 So.2d 135, 137.

Page 1127

[2014-1258 La.App. 4 Cir. 4] The instant case does not involve a timely filed motion for appeal where the order was signed after the delays had run. Instead, the record before us contains a timely filed notice of appeal--with an accompanying order that was never signed--but does not include any motion or petition for appeal, or even a signed judgment.[3] Since Financial's notice of appeal does not satisfy the statutory requirements for " taking" an appeal, this Court is without jurisdiction to entertain this " appeal."


For the foregoing reasons, Financial's appeal is dismissed.


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