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Green v. City of Shreveport10/27/2004
In this appeal, the tutors of the two minor plaintiffs failed to timely pay the estimated costs of appeal following an adverse judgment dismissing the plaintiffs' claims against defendants. The trial court dismissed the tutors' appeal as abandoned pursuant to La. C.C.P. art. 2126. Nevertheless, the undertutor of the minors, who had been listed as a party plaintiff with the tutors throughout the proceedings, attempted to pursue the appeal in forma pauperis. The defendants filed an exception of no right of action with this court seeking dismissal of the appeal of the undertutor. For the following reasons, we grant the peremptory exception and dismiss the appeal.
Facts and Procedural History This suit arises from an intersectional collision which occurred on April 6, 1996. Shreveport Police Officer James Creighton was driving his patrol vehicle in the favored lane of travel on a major street and impacted with a vehicle driven by Darnell Green ("Green") as it turned onto the street from a residential subdivision. Green's two passengers, Kathleen Fitzpatrick, and their young son, Corey Green ("Corey"), also occupied the front seat of the car. Green's blood alcohol level was later determined to be 0.17g% and he ultimately pled guilty to DWI. Kathleen Fitzpatrick sustained moderate facial injuries but died from an unrelated medical cause before suit was filed. Corey was briefly knocked unconscious and hospitalized for two days as a result of the accident. In addition to Corey, Kathleen was also survived by another child, Garrick Collins ("Garrick").
Green, individually and in his capacity as natural tutor of his minor son, Corey, filed a suit for damages against the City of Shreveport and Creighton. Garrick's father, Albert Collins ("Collins"), joined in the petition as Garrick's natural tutor. Meleria Fitzpatrick ("Meleria"), Kathleen's mother, also joined the suit, as undertutor for both Corey and Garrick. The petition also was said to be filed on behalf of the "Estate of Kathleen Fitzpatrick."
Defendants urged a dilatory exception, alleging that Green, Collins, and Meleria had not alleged facts sufficient to support their appointments as tutors and undertutor. Moreover, defendants excepted to the procedural capacity of "The Estate of Kathleen Fitzpatrick" as an improper party plaintiff in the suit, arguing that the survival action would devolve upon her two minor children.
The trial court dismissed the lawsuit on defendants' motion when plaintiffs failed to timely amend their pleadings to remove the grounds for the parties' procedural incapacity. This ruling was set aside after tutorship proceedings were instituted, and Green, Collins and Meleria were all confirmed as the representatives of the boys by judgments dated October 27, 1997. The trial court granted plaintiffs' motion for reconsideration and reinstated the lawsuit.
After a bench trial, the trial court found Green 100% at fault for the accident and dismissed the defendants from the suit. Green (individually and as tutor for Corey), Collins (as tutor for Garrick) and Meleria (as undertutor) petitioned for appeal of this judgment, and the order granting a devolutive appeal was entered by the trial court on August 12, 2003. On October 2, 2003, the plaintiffs all moved for and were granted an extension of time until October 22, 2003, to pay courts costs associated with prosecuting the appeal.
On October 22, the estimated costs for the appeal were not paid. However, on that day, Meleria moved to proceed in forma pauperis, and on October 23, the trial court granted her request.
Thereafter, upon the arrival of the record in this court, the plaintiffs' counsel was notified by
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