Case Summary: RICHARD E. DUNHAM v. KATHERINE O. DUNHAM ET AL., No. 10898 (La. App. 1st Cir. Sept. 20, 1976)

Factual and Procedural Background

A judgment in this matter was signed on September 16, 1975. The appellant filed a timely order of devolutive appeal and an appeal bond. The appeal was originally made returnable on February 12, 1976. On February 6, 1976, the Clerk of Court obtained an order extending the return date sixty days from February 12, 1976. Plaintiffs in reconvention (appellees) filed a motion to dismiss the appeal for the appellant's failure to pay the costs of preparing the record and the appellate court filing fee not later than three days prior to the extended return day, pursuant to Code of Civil Procedure Article 2126. A Show Cause Order was issued. The affidavit of the Deputy Clerk of Court, filed on appeal, establishes that the attorney for appellant was notified of the nonpayment ($645.97) on March 12, 1976 and on April 5, 1976. The appellant did not respond to the Show Cause Order.

Legal Issues Presented

Whether the appeal must be dismissed for failure to pay required appellate costs and filing fees before the deadline set by Code of Civil Procedure Article 2126 (i.e., not later than three days prior to the extended return date).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tropicana Hotel and Country Club v. Dantoni, 287 So.2d 817 (La.App. 1st Cir 1974)	Supports dismissal of appeals when required costs are not paid within the statutory deadline prior to the return date.	The court relied on this authority to conclude that failure to pay costs within the prescribed time mandates dismissal of the appeal.
Thibodeaux v. St. Paul Mercury Insurance Company, 310 So.2d 860 (La.App. 3rd Cir. 1975)	Holds that untimely payment of appellate costs constitutes grounds for dismissal.	The court cited this decision as additional authority affirming that untimely payment supports dismissal of the appeal.

Court's Reasoning and Analysis

The court examined the procedural timeline: judgment was signed, a timely devolutive appeal and bond were filed, and the appeal was made returnable February 12, 1976. The return date was extended sixty days by order obtained February 6, 1976. The appellees moved to dismiss based on appellant's failure to pay required costs and fees before the deadline prescribed by Code of Civil Procedure Article 2126 (payment due not later than three days prior to the extended return date). The Deputy Clerk's affidavit showed that the appellant's counsel was notified of the nonpayment on March 12, 1976 and again on April 5, 1976, and the appellant did not respond to the court's Show Cause Order.

Applying the cited precedents (Tropicana Hotel and Country Club v. Dantoni and Thibodeaux v. St. Paul Mercury Insurance Company), which hold that failure or untimely payment of required costs is grounds for dismissal, the court concluded the statutory deadline was not met. Based on that noncompliance and the absence of a response to the Show Cause Order, the court determined dismissal was required.

Holding and Implications

Holding: The appeal is dismissed, at the costs of appellant.

Implications: The direct effect is dismissal of the appellant's devolutive appeal and assessment of costs against the appellant. The opinion applies existing authority on the consequence of failing to timely pay appellate costs and does not purport to establish a new legal rule beyond those precedents.

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RICHARD E. DUNHAM v. KATHERINE O. DUNHAM ET AL.

PONDER, Judge.

Plaintiffs in reconvention-appellees filed a motion to dismiss the appeal for failure to pay costs of preparing the record and filing fee of the appellate court not later than three days prior to the extended return day pursuant to Code of Civil Procedure Article 2126. A Show Cause Order was issued, but appellant has not responded thereto.

Judgment was signed in this matter on September 16, 1975. A timely order of devolutive appeal and appeal bond was filed. The appeal was made returnable on February 12, 1976. On February 6, 1976, the Clerk of Court obtained an order extending the return date sixty days from February 12, 1976.

The affidavit of the Deputy Clerk of Court filed on appeal establishes that the attorney for appellant was notified of the nonpayment ($645.97) on March 12, 1976 and on April 5, 1976.

The appeal must be dismissed for appellant's failure to pay the required costs and fees before three days of the extended return date. Tropicana Hotel and Country Club v. Dantoni, 287 So.2d 817 (La.App. 1st Cir 1974). See also Thibodeaux v. St. Paul Mercury Insurance Company, 310 So.2d 860, (La.App. 3rd Cir. 1975) where untimely payment was held to constitute grounds for dismissal.

Accordingly, for these reasons, the appeal is dismissed, at the costs of appellant.

DUNHAM v. DUNHAM