LARRY BIZE, SR. AND MICHELLE R. BIZE
MALCOLM LARVADAIN, ET AL.
FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
257, 342-F HONORABLE GEORGE CLARENCE METOYER JR., DISTRICT
Welch Cameron COUNSEL FOR PLAINTIFFS/APPELLANTS: Larry Bize,
Sr., Michelle R. Bize
Huey Gibson COUNSEL FOR DEFENDANTS/APPELLEES: Malcolm
Larvadain, Edward Larvadain, III
G. Sanders COUNSEL FOR DEFENDANT/APPELLEE: Edward Larvadain,
Alexander T. Reinboth Louisiana Department of Justice, Civil
Division COUNSEL FOR OTHER APPELLEE: Attorney General for the
State of Louisiana
composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R.
Cooks, and Marc T. Amy, Judges.
T. AMY JUDGE
plaintiffs filed this claim against their former attorney,
and purported former attorneys, alleging legal malpractice in
a number of acts and omissions, including the entry of a
settlement. The plaintiffs appealed to this court after the
trial court sustained the defendants' exceptions of res
judicata and peremption. The plaintiffs further seek review
of the trial court's denial of their constitutional
challenge of the setting of bond for security for costs
pursuant to La.R.S. 13:4522. For the following reasons, we
affirm in part; reverse in part; and remand for further
limited proceedings as instructed. Upon reversal of the
sustaining of the exception of res judicata, we deny that
and Procedural Background
record indicates that Larry Bize, Sr. was arrested following
a March 2008 incident at a bar he owned in Avoyelles Parish.
Mr. Bize and his wife, Michelle R. Bize, retained Malcom
Larvadain (Mr. Larvadain) to represent them in a suit by
which they alleged that the Avoyelles Parish Sheriff's
deputies involved in the arrest were liable to them for
physical and mental damages resulting from the incident. That
initial petition was filed in March 2009.
September 2010, a first supplemental and amending petition
was filed attempting to plead claims pursuant to 42 U.S.C.
§ 1983. The trial court granted a motion for summary
judgment in July 2015 as to those latter claims on the basis
of prescription and upon a finding that they did not relate
to the original petition due to its lack of allegations in
support of the § 1983 claims. The trial court also
granted summary judgment on the basis of an absence of
genuine issues of material fact, as the plaintiffs
"failed to provide any evidence that they will be able
to satisfy their evidentiary burden regarding said claims at
trial." Thus, the trial court dismissed all § 1983
remaining issues proceeded to trial before Judge Kerry
Spruill. During a recess in the proceedings, Mr. and Mrs.
Bize entered into a November 13, 2015 settlement agreement,
whereby they would receive $50, 000 over a twelve-month
period. However, the matter was not dismissed at
April 2016, with the agreement confected, the defendants in
the personal injury suit filed a Motion to Enforce
Settlement. While that motion was pending, Mr. Bize
discharged Mr. Larvadain and retained Nelson W. Cameron as
reflected in a May 2, 2016 Motion to Enroll and Withdraw as
Counsel. Mr. Bize thereafter filed a Motion to Recuse,
asserting that he had lacked capacity to enter into the
settlement agreement and that Judge Spruill was a potential
witness at the forthcoming hearing on the Motion to Enforce
Settlement. Judge William J. Bennett was assigned to
consider the motion to recuse. Following a hearing, Judge
Bennett denied the motion, explaining in his reasons for
ruling that Judge Spruill was not a witness to Mr. Bize's
alleged deterioration given the latter's testimony that
he became distraught during settlement negotiations that
occurred during a recess.
on September 8, 2016, Mr. and Mrs. Bize signed a formal
Receipt and Release of All Claims. Therein, they acknowledged
that, for the sum of $50, 000, they released, acquitted, and
discharged the officers named as defendants in the suit. In
turn, the trial court granted the parties' Joint Motion
to Dismiss and ordered, on November 15, 2016, that Mr. and
Mrs. Bize's suit be dismissed as to all defendants.
Mrs. Bize instituted the present matter, also in November
2016, by filing a Petition for Damages and Trial By Jury in
Rapides Parish. The plaintiffs named Mr. Larvadain and his
brother, Edward Larvadain, III, as defendants, as well as
their purported partnership. The plaintiffs alleged that Mr.
Larvadain committed various instances of legal malpractice in
his representation of them in the initial matter, including:
1) failing to timely plead claims allegedly arising under 42
U.S.C. § 1983 and failing to timely pursue an appeal or
writ on a determination that such claims had prescribed; 2)
failing to file the matter in federal court; and 3) pleading
causes of action against the defendants in their official
capacities and not in their individual capacities. The
plaintiffs additionally alleged that Mr. Larvadain
"counseled Plaintiffs to enter into a settlement
agreement dismissing the named Defendants with prejudice. Due
to failures in the pleading as drafted and the filings and
subsequent practice, the settlement obtained was woefully
inadequate." They continued, asserting that Mr.
Larvadain "knew or should have known during the
settlement negotiations that Larry Bize was under duress at
the time and was not competent to proceed with a
settlement." The plaintiffs alleged that they had
suffered "loss of damages including but not limited to
attorney fees, punitive damages and sufficient compensation
for the losses sustained in the case filed in Avoyelles
Parish district court."
plaintiffs thereafter filed three amending petitions. By
those petitions, the plaintiffs named Edward Larvadain, Jr.
as an additional defendant, suggesting that he assisted in
Mr. Larvadain's representation of them. Among other
factual assertions, the plaintiffs alleged legal malpractice
in the failure to employ experts in the use of force or
arrest and in economics; the failure to conduct sufficient
and timely discovery; and in the failure to conduct a prompt
prosecution of the matter. And, finally, the plaintiffs
alleged that certain instances of purported malpractice were
not known to them at the time of the occurrence. Rather, by
the second and third amended petitions, the plaintiffs
contended that Mr. Larvadain acted with an intent to conceal
the purported malpractice, doing so by failing to inform them
of, among other things, the summary judgment resulting in the
dismissal of the 42 U.S.C. § 1983 claims. They alleged
that they only became aware of such actions after examination
of the Avoyelles Parish Court records in November 2016 and
only after receipt of the file from Mr. Larvadain. The
plaintiffs further asserted that the delivery of the file was
not prompt. Those actions, the plaintiffs contended,
reflected concealment and fraud per La.R.S. 9:5605(E).
pleading, Mr. Larvadain and Edward Larvadian, III ("the
defendants") responded to the initial petition with a
Motion to Set Bond For Security For Costs, seeking a bond in
the amount of $25, 000, pursuant to La.R.S. 13:4522. The
trial court granted the motion, ordering the posting of a
bond by April 10, 2017. By the ruling, the trial court set
for hearing the plaintiffs' motion and rule to show cause
by which they prayed that La.R.S. 13:4522 be declared
unconstitutional pursuant to La.Const. art. 1, § 2 (Due
Process of Law); La.Const. art. 1, § 19 (Right to
Judicial Review); and La.Const. art. 1, § 22 (Access to
Courts). Following that hearing, the trial court
denied the plaintiffs' claim and entered judgment
indicating that "the constitutionality of La.R.S.
13:4522 is hereby upheld." The trial court maintained
its earlier order that the plaintiffs post a $25, 000 bond,
but modified the date for the posting to "two weeks
after any ruling by the Louisiana Third Circuit Court of
Appeal regarding this Judgment."
defendants further filed various proceedings, including an
Exception of Peremption, an Exception of Res Judicata, and a
Motion for Summary Judgment on Estoppel. Following two
hearings on the matters, the trial court denied the motion
for summary judgment, but sustained the exception of
peremption as well as the exception of res judicata. In
sustaining the exception of res judicata, the trial court
ordered that "all claims of plaintiffs Larry Bize, Sr.
and Michelle R. Bize concerning the alleged lack of mental
capacity of Larry Bize, Sr. when the plaintiffs settled the
underlying lawsuit are hereby dismissed with prejudice."
plaintiffs appeal, asserting that the trial court erred in:
1) requiring them to post bond pursuant to La.R.S. 13:4522,
as it violates La.Const. art. 1, § 22 and the Due
Process Clause of the U.S. Constitution; 2) requiring them to
post bond when there was insufficient evidence to support the
amount imposed; 3) granting the exception of preemption, as
the record indicates that acts of malpractice occurred within
the one-year period before the filing of suit, and other acts
occurred within one year of discovery and within three years
of the filing of suit; 4) not applying prescription upon the
demonstration of fraudulent concealment; and in 5) granting
the exception of res judicata when the parties to the prior
judgment and the case at issue are not the same.
Revised Statutes 13:4522
plaintiffs first two assignments of error address the trial
court's order that they post a bond for security and its
determination "that the constitutionality of La.R.S.
13:4522 is hereby upheld." Titled "Defendant may
demand security for costs[, ]" the subject statute
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.
Id. The supreme court has explained that the
requirement for the advance posting of security for costs
"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." Carter v. Phillips, 337 So.2d 187, 188
(La.1976). We turn to consideration of the plaintiffs'
to the Courts
first examine the plaintiffs' constitutional claim. In
addition to the defendants' arguments rebutting the
plaintiffs' contention, the Attorney General of the State
of Louisiana files an amicus curiae brief with this
court,  arguing that La.R.S. 13:4522 maintains the
plaintiffs' right of access to the courts.
noted by the Attorney General, this court must first
determine whether the constitutional issue presented by the
plaintiffs in their brief is appropriately before this court.
See State v. Lanclos, 07-0082 (La. 4/8/08), 980
So.2d 643. On this point, the supreme court has explained
We have repeatedly and consistently held that courts should
refrain from reaching or determining the constitutionality of
legislation unless, in the context of a particular case, the
resolution of the constitutional issue is essential to the
decision of the case or controversy. State v.
Fleming, 2001-2799 (La.6/21/02), 820 So.2d 467, 470;
Cat's Meow, Inc. v. City of New Orleans Through Dept.
of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186, 1199;
Louisiana Associated Gen. Contractors, Inc. v. New
Orleans Aviation Bd., 97-0752 (La.10/31/97), 701 So.2d
130, 132; Cameron Parish Sch. Bd. v. Acands, Inc.,
96-0895 (La.1/14/97), 687 So.2d 84, 87; White v. West
Carroll Hosp., Inc., 613 So.2d 150, 157 (La.1992).
Further, our jurisprudence counsels that the practice of
courts is "never to anticipate a question of
constitutional law in advance of the necessity of deciding
it." Matherne v. Gray Ins. Co., 95-0975
(La.10/16/95), 661 So.2d 432, 434; Communist Party of
U.S. v. Subversive Activities Control Bd., 367 U.S. 1,
81 S.Ct. 1357, 6 L.Ed.2d 625 (1961) (citing Liverpool,
New York & Philadelphia S.S. Co. v. Commissioners,
113 U.S. 33, 5 S.Ct. 352, 28 L.Ed. 899 (1885); Arizona v.
California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154
(1931). Courts should avoid constitutional rulings when the
case can be disposed of on non-constitutional grounds.
Blanchard v. State Through Parks and Recreation
Commission, 96-0053 (La.5/21/96), 673 So.2d 1000, 1002.
Id. at 647-48 (quoting Ring v. State, Dep't
of Transp. & Dev., 02-1367, pp. 4-5 (La. 1/14/03),
835 So.2d 423, 426-27).
addressing this preliminary question, the Attorney General
suggests that if it is determined that the trial court
appropriately dismissed the plaintiffs' suit upon
sustaining the defendants' exception, then resolution of
the constitutional challenge may not otherwise be required
and, therefore, should not be addressed. As we below find
reversal of aspects of the judgment necessary, we continue
with discussion of the constitutional claim. We do not find,
however, that the breadth of the plaintiffs' argument as
now presented to this court is preserved for review.
the supreme court has explained that "litigants must
raise constitutional challenges in the trial court rather
than in the appellate courts, and that the constitutional
challenge must be specially pleaded and the grounds for the
claim particularized." Arrington v. Galen-Med,
Inc., 06-2968, p. 3 (La. 2/2/07), 947 So.2d 727, 728-29.
Such a requirement permits the parties to brief and argue the
issues raised at a contradictory hearing and affords the
opportunity for a full record for review. Id.
(citing Vallo v. Gayle Oil Co., Inc.
94-1238 (La. 11/30/94), 646 So.2d 859');">646 So.2d 859). The supreme court
continued, stating that:
The requirement of specially pleading the unconstitutionality
of a statute in pleadings implies that this notable issue
will receive a contradictory hearing, wherein all parties
will be afforded the opportunity to brief and argue the
issue. Cf. LSA-C.C.P. arts. 929, 963, 966, 1038,
1871. The record of the proceeding could then be reviewed to
determine whether the party attacking the statute sustained
his or her burden of proof, and whether the trial court
attempted to construe the statute so as to preserve its
constitutionality. See Moore v. Roemer, 567 So.2d
75, 78 (La.1990); Board of Directors of the Louisiana
Recovery Dist. v. All Taxpayers, Property Owners and Citizens
of the State of Louisiana, 529 So.2d 384, 387-388
Id. at 729 (quoting Vallo, 646 So.2d at
pertinent part, the plaintiffs specifically pleaded in the
motion instituting their constitutional claim that La.R.S.
13:4522 violated La.Const. art. 1, § 2 (Due Process of
Law); La.Const. art. 1, § 19 (Right to Judicial Review);
and La.Const. art. 1, § 22 (Access to Courts). Yet, the
motion's incorporated memorandum did not particularize the
ground arising under Section 2, failing to separately cite to
that provision. And, to the extent it superficially cited
Section 19, it did so within its discussion of access to the
courts. The plaintiffs did, however, address and further
particularize this latter ground, arising under Section 22
and the due process considerations contained therein. We make
final note here that, in framing their assignments of error,
the plaintiffs also assert that the La.R.S. 13:4522 as
applied here violates "the First Amendment and Due
Process Clause of the U.S. Constitution." See
U.S. Const. amend. I and U.S. Const. amend. XIV. However, we
again note those grounds were not raised by the
plaintiffs' motion and were referenced in the memorandum
only within the reporting of jurisprudence. Accordingly, we
limit review to that ground raised in the motion and
ultimately preserved for review.
that the plaintiffs preserved for review the single ground of
the constitutionality of La.R.S. 13:4522 in light of
La.Const. art. 1, § 22, we turn to de novo
review of the trial court's rejection of that
constitutionality claim. See City of New Orleans v.
Clark, 17-1453, p. 4 (La. 9/7/18), 251 So.3d 1047, 1051
("The determination of the constitutionality of a
statute presents a question of law, which is reviewed by this
court de novo."). In doing so, we are mindful
that statutes are presumed to be constitutional and that, in
turn, it is the party challenging a statute's validity
who must bear the burden of proving its unconstitutionality.
Id. As "[a] facial constitutional challenge
seeks more drastic relief than" those presented on an
"as-applied" basis, "the movant in a facial
challenge bears an especially heavy burden."
LaPointe v. Vermilion Parish Sch. Bd., 15-0432, p.
10 (La. 6/30/15), 173 So.3d 1152, 1159 (citing U.S. v.
Salerno, 481 U.S. 739, 107 S.Ct. 2095 (1987)). In such a
challenge, the movant "must establish that no set of
circumstances exists under which the statute would be valid,
that is, that the law is unconstitutional in all its
applications." Id. at 1159-60.
"Access to Court[, ]" La.Const. art. 1, § 22
provides: "All courts shall be open, and every person
shall have an adequate remedy by due process of law and
justice, administered without denial, partiality, or
unreasonable delay, for injury to him in his person,
property, reputation, or other rights."
lodging their constitutional claim, the plaintiffs observed
in their memorandum to the trial court that, in Michel v.
Edmondson, 218 So.2d 103 (La.App. 3 Cir. 1968), a panel
of this court upheld the constitutionality of La.R.S.
13:4522. However, they noted both that Michel was
rendered prior to the enactment of the 1974 Louisiana
Constitution and that the Michel panel appeared to
be addressing a facial constitutional challenge. The
plaintiffs suggest that they alternatively lodged an
"as- applied" challenge.
to Michel, 218 So.2d 103, indicates that the
plaintiff in that case filed suit for damages allegedly
sustained to his crops due to flooding caused by the
defendant's construction of a dam across a drainage
canal. The defendant filed a motion for security for costs
pursuant to La.R.S. 13:4522 based on the need to employ
engineers, surveyors, and agricultural experts for his
defense. The plaintiff, however, raised various
constitutional concerns, including one arising under Article
1, § 6 of the 1921 Louisiana Constitution. Then titled
"Open courts; legal remedies[, ]" the provision
indicated at the time of Michel, that:
Section 6. All courts shall be open, and every person for
injury done him in his rights, lands, goods, person or
reputation shall have adequate remedy by due process of law
and justice administered without denial, partiality or
the plaintiff's assertion of unconstitutionality, the
trial court in Michel ordered the plaintiff to post
a $750 bond for costs. Michel, 218 So.2d 103. When
the plaintiff failed to do so, the trial court dismissed the
suit. The plaintiff appealed. Id.
review, however, the panel rejected the plaintiff's claim
that La.R.S. 13:4522 discriminated against civil suit
plaintiffs as they, distinct from defendants, could be
required to furnish security for costs. Michel, 218
So.2d 103. The panel explained:
In Grinage et al. v. Times-Democrat Publishing
Company, 107 La. 121, 31 So. 682 (1902), the
constitutionality of Act 136 of 1880, Section 4 was again
attacked and the court held:
"The constitutional declaration that the courts shall be
open, and every person for injury done him in his rights,
lands, goods, person or reputation shall have adequate remedy
by due process of law, etc. (article 6, Const. 1898) is not
to be understood or construed as taking from the legislature
the power to prescribe reasonable rules and regulations
relative to the costs incurred in litigation. Succession of
Grover, 49 La.Ann. 1050, 1051, 22 So. 313. When a person is
impleaded in the courts his right to make defense thereto
arises and he, necessarily, in many cases, incurs expense.
While a plaintiff is primarily bound for the costs of a suit
he institutes, it is not always true that he is financially
able to respond. A defendant may make large outlays in
vindicating his position, and may successfully vindicate it,
and yet at the end of the suit, with a judgment discharging
him, may be unable to recoup his expenditures . Therefore it
is, that the requirement of a bond for costs has always been
In the Federal Courts security for costs is not expressly
covered by the Federal Rules of Civil Procedure. The Federal
District Courts require such security under their general
rule-making power, Federal Rule 83. Usually, they follow the
state court practice. See the general discussion in Barron
& Holtzoff, Sections 1198 and 1711. We find no Federal
case holding security for costs unconstitutional as denying
either due process or equal protection of the laws.
The equal protection of law guarantees in our Federal
Constitution require generally that all citizens similarly
situated be accorded the same rights in the prosecution of
civil suits. Classifications of citizens who are similarly
situated may be established by the legislature, so long as
such classifications are based on reasonable grounds.
Roper v. Brooks, 201 La. 135, 9 So.2d 485 (1942);
16A C.J.S. Verbo Constitutional Law §§ 502-503 and
557-566, pp. 296-300, and 502-536.
Under these general principles, we think the reasoning of the
court in the Grinage case quoted above, furnishes valid
grounds to treat plaintiffs as a class in civil actions
different from defendants under the state statute authorizing
security for costs.
We find at least one of our sister states has considered a
similar problem. In Columbia Water Power Company v.
Nunamaker, 73 S.C. 550, 53 S.E. 996, the Supreme Court
of South Carolina held that a statute requiring a bond of the
plaintiff before granting an injunction, while no such bond
was required of the defendant, does not deny to plaintiff the
equal protection of the laws.
Id. at 105. While the plaintiffs point out that
Michel was decided under the prior constitution,
comparison of Article 1, § 6 of the 1921 Louisiana
Constitution to La.Const. art. 1, § 22 reveals
substantively equivalent language. Further, the version of
La.R.S. 13:4522 under review in Michel has not been
amended since that time.
they acknowledge Michel, the plaintiffs argue that
the 1968 opinion is no longer authoritative. They instead
assert that Detraz v. Fontana, 416 So.2d 1291
(La.1982) is reflective of a contemporary view of La.Const.
art. 1, § 22 and is similar to the present case. In
Detraz, the defendants filed a rule to require the
plaintiffs in that case to furnish a bond for attorney fees
pursuant to La.R.S. 42:261(E) as it existed at that
time. The plaintiffs opposed the rule on the
basis of state and federal equal protection. The trial court
ordered the posting of a $15, 000 bond and ultimately
dismissed the suit when the plaintiffs failed to post the
the appellate panel upheld the constitutionality of the
statute, the supreme court granted the writ application in
order to consider the constitutional question presented,
i.e., the equal protection mandate of U.S. Const. amend. XIV
and La.Const. art. 1, § 22. Detraz, 416 So.2d
1291. The supreme court observed that the statute treated
litigants opposing governmental defendants differently than
those opposing private defendants. It noted that only the
first class of litigants would suffer the burden of the bond
for attorney fees. Id. It found no justification for
that disparate treatment and, thus, the statute was found to
violate both the state and federal constitutions. Following
that determination as to equal protection, the supreme court
further determined that the statute deprived the plaintiff of
due process and denied open access to the courts.
Id. (citing U.S. Const. amend. V; U.S. Const. amend.
XIV; La.Const. art. 1, § 2; La.Const. art. 1, §
22). This reasoning, the plaintiffs suggest, should be
applied in the present case to find La.R.S. 13:4522 similarly
urged by both the defendants and the Attorney General in
opposition, however, reference to Detraz, 416 So.2d
1291 in full undermines the plaintiffs' comparison.
Rather, the supreme court therein discussed at length the
illegitimate "motivating force" in the enactment of
La.R.S. 42:261(E) in 1960. Id. at 1292. Namely, the
supreme court reviewed legislatively-endorsed materials from
the time period that revealed "contempt of state leaders
for the decision of the United States Supreme Court in
Brown v. Board of Education, 347 U.S. 483, 74 S.Ct.
686, [ ] (1954)." Id. at 1293 (footnote
omitted). The supreme court remarked that although the
specific legislative history was unavailable, the context in
which it was passed indicated that it too would further the
segregationist purpose "by making it extremely costly,
if not prohibitive, for minority groups or individuals to
bring suit against any public official (school board member,
police officer, police juror) for the redress of grievances
suffered because of race." Id. at 1293-94
supreme court acknowledged that "[w]ide discretion is
normally afforded legislative classifications" and that
"legislative judgment will be upheld 'if any state
of facts reasonably may be conceived to justify
it.'" Detraz, 416 So.2d at 1294 (quoting
McGowan v. State of Maryland, 366 U.S. 420, 426, 81
S.Ct. 1101, 1105 (1961)). It further explained, however, that
racial classifications such as the one before it are
"suspect and subject to the 'most rigid
scrutiny.'" Id. (quoting Loving v.
Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823 (1967)).
Such has not been alleged to be the context of the statute in
the present case. Further recall that the plaintiffs have not
preserved an equal protection claim.
the supreme court in Detraz also found that the
statute at issue in that case violated concepts of due
process and access to the courts, it is critical to recognize
that the statute under review by the supreme court afforded
neither an opportunity to be heard nor did it include an
exception for litigants qualified as paupers. By contrast,
La.R.S. 13:4522 includes an express exception for those
qualified as paupers. Carter, 337 So.2d 187;
Whitson v. American Ice Co., 164 La. 283, 113 So.
849 (1927). In fact, and as it relates to the plaintiffs'
suggestion that they have raised an as-applied challenge, we
note that the record demonstrates that the plaintiffs have
not qualified as paupers, but have instead received
settlement proceeds and, as developed at trial, the
plaintiffs have multiple sources of income. They were also
afforded a hearing at which they were able to oppose the
necessity and the size of the bond (as well as a separate
hearing for consideration of the instant constitutional
challenge). The record does not otherwise demonstrate, other
than a bare assertion, any way in which the application of
La.R.S. 13:4522 is an economic hardship or is otherwise
violative of the plaintiffs' right of access to the
courts as guaranteed by La.Const. art. 1, §
we find no merit in the plaintiffs' suggestion that the
analysis in Michel, 218 So.2d 103, is now
antiquated. Instead, the supreme court has explained that
"the legislature is free to allocate access to the
judicial machinery in any system or classification which is
not totally arbitrary." Moore v. RLCC Tech.,
Inc., 95-2621, p. 16 (La. 2/28/96), 668 So.2d 1135,
1144 (quoting Bazley v. Tortorich, 397 So.2d 475,
485 (La.1981)). Finding no indication of such
unreasonableness in the limitations attendant to the bond
requirement provided by La.R.S. 13:4522, we find no merit to
the plaintiffs' constitutional claim.
Support for the Bond
plaintiffs alternatively assert that the defendants failed to
demonstrate sufficient need for the $25, 000 bond. They
contend that, rather than presenting specific evidence of the
necessity of the bond, the defendants relied upon the bare
allegations of their motion to set the bond. This type of
reliance, the plaintiffs suggest, is insufficient for the
type of bond provided by La.R.S. 13:4522.
Carter, 337 So.2d at 189, the supreme court examined
a trial court's bond order and stated that: "We
agree that it is within the discretion of the trial judge to
determine whether the showing required may be made by the
allegations in the motion, supporting affidavits, the
arguments of counsel at the hearing, introduction of
evidence, or in any other manner which the trial judge deems
appropriate." Under the facts of the case before it,
however, the supreme court annulled the order, explaining
[W]e feel that the trial judge abused his discretion here in
accepting as a showing the allegations in the motion and
perhaps argument of counsel. There is no indication in the
record that the trial judge exercised his discretion
"with the regard for the actual necessity for a
bond and for the interest or motive of the party demanding
it." (Emphasis added). Whitson v. American Ice
Co., 113 So. 849, 851. We are not convinced by the bare
pleadings that the defendant needed the testimony of five
expert witnesses in order to properly defend his suit. Nor is
it clear why the defendant must take the depositions of the
three doctors from Alexandria rather than subpoenaing them as
witnesses at the trial. We do not mean to suggest that the
arguments of counsel may never ...