Opinion
No. 82 CA 1101.
November 22, 1983. Writ Granted January 16, 1984.
APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT, EAST BATON ROUGE PARISH, STATE OF LOUISIANA, HONORABLE LEWIS S. DOHERTY, III, J.
Stephen E. Broyles, Baton Rouge, for plaintiff-appellee Andrea Clesi Fertitta and Jack Gathian Fertitta.
Ben F. Day, Baton Rouge, for third party plaintiff-appellee Paula McCarron.
Ben Louis Day, Baton Rouge, for third party defendant-appellee State Farm Mut. Auto. Ins. Co.
Donald R. Smith, Baton Rouge, for defendant-appellant Allstate Ins. Co. and Paul McCarron.
Before PONDER, WATKINS and CARTER, JJ.
Plaintiff, Andrea Clesi Fertitta, filed a motion to dismiss the appeal of Paula McCarron, defendant, on the ground that no bond was posted in her behalf and that she had failed to allege or brief any error relating to the judgment rendered against her in favor of Fertitta. We deny the motion.
Through oversight, the decision on the merits was handed down without addressing the issues raised by this motion. Fertitta v. Allstate Insurance Company, et al., 439 So.2d 531 (La.App. 1st Cir. 1983). We feel that the decision in that case implicitly disposed of the motion and rendered the issues raised moot. However, to clarify the situation, we make the following findings:
We find because the motion for the appeal was made on behalf of McCarron and Allstate, the bond was set at $71,000.00 and the appeal bond identified the judgment as being against both defendants that the bond did cover McCarron's appeal. The fact that only Allstate was listed as principal later in the bond, does not render the appeal invalid. Furthermore, even if the bond does not cover the appeal, McCarron would still have a valid devolutive appeal.
McCarron's appellate brief, answer to Allstate's appeal and opposition to plaintiff's motion to dismiss are strong evidence of an intent not to abandon her appeal. While McCarron's appellate brief did not raise a specification of error regarding the award to Fertitta, the issue of credit to her because of settlement with the uninsured motorist carrier was adverted to, even though somewhat tangentially.
MOTION DENIED.