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Clarkston v. Funderburk

Court of Appeals of Louisiana, Third Circuit

February 1, 2017




          J. Arthur Smith, III Smith Law Firm COUNSEL FOR: Plaintiff/Appellant - Aleashia Clarkston

          James H. Gibson Allen & Gooch COUNSEL FOR: Defendant/Appellee - Ike Funderburk

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and David E. Chatelain [*] Judges.


         The 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.



         We must decide:

(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.



         Ms. 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 Board.

         LAE 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.

         Mr. 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 her.

         Following 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.

         Following 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.

         Ms. Clarkston enrolled new counsel, who filed a motion for devolutive appeal from the February judgment dismissing her suit.

         Counsel 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."

         On 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.



         The 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.



         La.R.S. 13:4522 and Security For Costs

         The 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.

         While 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).

         In this 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 ...

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