What happens when an appellant fails to pay the appeal costs
02 December 2024
In Louisiana courts, appeals cost money—even excluding attorney fees. The appellant is responsible for paying the cost of preparing the record for the appeal. Immediately after the order of appeal is granted, the clerk is supposed to estimate the costs of preparing the record and mail a bill for the estimated costs to the appellant. The appellant then has 20 days from that mailing to either pay the estimated costs or file a motion to reduce the costs. If the appellant fails to do either timely, the trial court can either dismiss the appeal on grounds of abandonment or grant a 10-day time for the appellant to pay the appeal costs. See La. Code Civ. P. art. 2126. If only part of the trial-court record is needed for the appeal, the appellant has the option to designate the record and serve a statement of points on which the appellant will rely. See id. arts. 2128 and 2129. But to go this route, the appellant must file its record designation within 3 working days after taking the appeal. Id. art. 2128.
What happens if the appellant fails to do any of these things timely. If you ever find yourself in this situation, either as appellant or appellee, then you’ll want to read the Louisiana First Circuit’s recent decision in Covington v. Clark Sand Co., 2024-CA-0485 (La. App. 1 Cir. 11/13/24). Besides compiling other cases on this topic, it reminds us that Article 2126 “is not jurisdictional, but is a procedural vehicle designed solely for the efficient administration of the court.” Id., p. 5. Its purposes are “to dismiss the appeal as abandoned, in those cases in which the appellant files a timely appeal and thereafter decides not to pursue it,” and “to ensure prompt payment of costs of appeal by dilatory appellants.” Id., p. 6. “The focus of trial courts in deciding Article 2126 motions to dismiss should be on securing payment of costs in order to move appeals forward rather than on dismissing appeals, although obviously not abandoned, simply because a motion was filed after expiration of the twenty-day period for paying costs.” Id.
In Covington, the First Circuit affirmed dismissal of the appeal under Article 2126. The would-be appellant never paid the original bill for estimated appeal costs (over $17,000), and the appellant’s attempt to reduce the costs by designating the record for appeal was about 80 days too late. Although the trial court signed an order allowing the belated record designation, the First Circuit held that the trial court had no authority to do so after the 3-day period in Article 2128 had expired. Id., p. 7 n. 5.
The lesson for potential appellants is clear: Don’t blow off the deadlines in Articles 2126 and (if applicable) Article 2128. If you want to designate the record for appeal, do so within 3 days of taking the appeal. And when you get the bill for estimated appeal cost, do one of two things within 20 days of its mailing: (1) pay it; or (2) file a motion to reduce the cost. If you blow all these deadlines, you risk dismissal of your appeal.
The lesson for potential appellees: if your opponent blows the deadlines in Articles 2126 and 2128, take a deep breath, dust off Covington, and read Covington and the cases it cites. Move to dismiss the appeal, realizing that dismissal is not automatic—the trial court may (and perhaps should) grant the appellant 10 more days to pay the bill for estimated appeal costs.
Comments