FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
VERMILION, NO. 100, 264 HONORABLE MICHELLE M. BREAUX,
Arthur Smith, III Smith Law Firm COUNSEL FOR:
Plaintiff/Appellant - Aleashia Clarkston
H. Gibson Allen & Gooch COUNSEL FOR: Defendant/Appellee -
composed of Ulysses Gene Thibodeaux, Chief Judge, John D.
Saunders, and David E. Chatelain [*] Judges.
ULYSSES GENE THIBODEAUX CHIEF JUDGE
plaintiff-appellant, Aleashia Clarkston, appeals the trial
court's judgment dismissing her legal malpractice suit
against the defendant-appellee, Ike Funderburk, for failure
to post bond as security for costs. Finding no abuse of
discretion in the trial court's judgment, we affirm.
(1) whether the trial court abused its discretion in
requiring the plaintiff to post bond as security for costs in
this case; and
(2) whether the trial court erred in dismissing the defendant
when the plaintiff failed to post the bond.
AND PROCEDURAL HISTORY
Clarkston was a teacher with the Iberia Parish School Board.
She had been on a medical leave of absence since September
2012, when, in April 2013, she was terminated by the school
board on the basis of abuse of leave policy. Ms. Clarkston
asserts that she was wrongfully terminated, denied due
process as a tenured employee, and publicly defamed. Attorney
Ike Funderburk was contracted through the Louisiana
Association of Educators (LAE) to represent Ms. Clarkston in
her case against the school board. Approximately fourteen
months later, Mr. Funderburk informed Ms. Clarkston that he
was no longer affiliated with LAE and, thus, no longer
representing her in her case against Iberia Parish School
assigned another attorney to the case. Ms. Clarkston learned
that a suit had never been filed on her behalf against Iberia
Parish School Board and that her claims against the school
board had prescribed in April 2014. Filing as a pro se
plaintiff, Ms. Clarkston filed a legal malpractice suit
against Mr. Funderburk for his failure to file suit on her
behalf against the school board.
Funderburk responded with a motion to set bond as security
for his litigation costs, pursuant to La.R.S. 13:4522. He
then answered the suit asserting that Ms. Clarkston's
rights had been waived before he became involved in her
representation. He further asserted that he informed Ms.
Clarkston of the waiver and that nothing could be done for
an October 26, 2015 hearing on the motion to fix bond, the
trial court entered judgment setting the security bond for
the requested amount of $10, 000.00, to be paid within
forty-five days from the October 26 hearing date. Ms.
Clarkston did not file an opposition to the motion to fix
bond or challenge the necessity for the bond. By ex-parte
motion, Ms. Clarkston sought a thirty-day extension of time
to post the bond, due to financial hardship. The trial court
granted the extension. In January 2016, Mr. Funderburk filed
a motion to dismiss the suit against him due to the
plaintiff's failure to post the bond set by the court.
a February 22, 2016 hearing on the motion to dismiss, the
trial court entered judgment in favor of Mr. Funderburk,
dismissing Ms. Clarkston's suit due to her failure to
post the required bond.
Clarkston enrolled new counsel, who filed a motion for
devolutive appeal from the February judgment dismissing her
for Ms. Clarkston filed an ex parte motion to proceed on
appeal in forma pauperis. The motion on behalf of Ms.
Clarkston sought "to exercise the privilege granted
pursuant to La.C.C.P. art. 5181."
appeal, Ms. Clarkston asserts that the trial court erred in
requiring her to post the bond, and in dismissing her suit
for failure to post the bond. She argues that the dismissal
should be vacated because she was "subsequently
permitted to proceed in forma pauperis." She
further raises the issue that requiring her, as a pauper, to
post bond, "has and will deny her access to the courts
in violation of her due process rights and her rights
guaranteed by La.Const. art. I, § 22." For the
following reasons, we affirm the judgment of the trial court.
trial court has the discretion to determine both the
necessity for posting a bond to secure the cost of litigation
and for fixing the amount of the bond for costs. Whitson
v. American Ice Co., 164 La. 283, 113 So. 849 (1927).
Accordingly, those matters are reviewed under an abuse of
discretion standard of review. Questions of law, such as the
proper interpretation of a statute, are reviewed by the
appellate court under the de novo standard of review.
Land v. Vidrine, 10-1342 (La. 3/15/11), 62 So.3d 36
(citations omitted). Thus, in this case, we apply the de novo
standard of review to the trial court's dismissal of the
plaintiff's case under the governing statute.
13:4522 and Security For Costs
governing statute in this case is La.R.S. 13:4522. It is
found in Louisiana Revised Statutes, under Title Thirteen,
"Courts and Judicial Procedure, " and Chapter
Twenty-Eight, "Costs." Louisiana Revised Statutes
13:4522 is entitled, "Defendant may demand security for
costs, " and it states as follows (emphasis added):
The defendant before pleading in all cases may by motion
demand and require the plaintiff or intervenor to give
security for the cost in such case, and on failure to do so
within the time fixed by the court such suit or intervention,
as the case may be, shall be dismissed without prejudice.
This section shall not apply to the Parish of
Orleans and to cases brought in forma pauperis, nor
to the state or any political subdivision thereof.
the appellant argues that the statute does not apply to
paupers, the operative word in the statute is that it does
not apply to cases "brought" in forma
pauperis. Throughout two hearings and the passage of several
months, Ms. Clarkston never sought to apply for pauper
status. She did not file for pauper status until four months
after her suit was dismissed, and that filing was for
purposes of her appeal. Louisiana Revised Statutes 13:4533
states: "The costs of the clerk, sheriff, witness'
fees, costs of taking depositions and copies of acts used on
the trial, and all other costs allowed by the court, shall be
taxed as costs." The advance posting of a bond,
"secures the payment of those expenses incurred by the
defendant in defense of the suit which may be taxed as court
costs and which the plaintiff may finally be condemned to
pay. Among these costs are . . . the fees of expert witnesses
and the costs of taking their depositions, when
necessary." Carter v. Phillips, 337 So.2d 187
(La.1976) (citing Whitson, 113 So. 849).
case, the defendant's motion for bond was filed and
time-stamped by the clerk of court a few minutes before the
filing of the defendant's answer to the suit. At oral
argument, the question arose as to whether this almost
contemporaneous filing of the motion for bond, along with the
answer, satisfied the first sentence of La.R.S. 13:4522,
which states that "before pleading" the defendant
may require the plaintiff to post bond for costs. In
response, the defendant points out, and the record confirms,
that (1) the timeliness of the filing was never objected to
in the trial court; and (2) the issue of timing was not
raised in the appeal nor assigned as error in the
appellant's brief. Pursuant to Uniform Rules, Courts of
Appeal, Rule 1-3, if the issue is not raised in the trial
court and assigned as error and briefed on appeal, we are not
required to address it on appeal. Notwithstanding, under the
same Uniform Rule, we may ...