Appeal from the Twenty-Second Judicial District Court In and
for the Parish of St. Tammany State of Louisiana Trial Court
No. 2012-15166 The Honorable Reginald Badeaux, Judge
F. Myers Covington, Louisiana Attorney for
Plaintiffs/Appellants, Barry McCraney and Peggy Souza
J. Knight Folsom, Louisiana Attorney for Defendant/Appellee,
N. Ours Baton Rouge, Louisiana Attorney for
Defendant/Appellee, New Zion Baptist Church.
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
an appeal by Appellants, Barry McCraney and Peggy Souza
McCraney, of a judgment dismissing their case following a
trial of the matter against Appellees, Matt Smith and New
Zion Baptist Church. Appellants failed to timely file a brief
within the time period provided by Rule 2-12.7 of the Uniform
Rules of Louisiana Courts of Appeal. This court dismissed the
appeal on May 3, 2017 after thirty (30) days passed from the
mailing of the notice in accordance with Rule 2-8.6 of the
Uniform Rules of Louisiana Courts of Appeal and no brief was
filed. However, both Appellees timely answered the appeal
requesting damages for a frivolous appeal. The answers to
appeal are the only issue before this court.
AND PROCEDURAL HISTORY
forth the facts of the appeal only as it relates to the
request for damages for a frivolous appeal by both Appellees
in their answers to appeal. Appellants sued Matt Smith, New
Zion Baptist Church, and John Doe, alleging that Matt Smith
made harassing phone calls to them. Both Appellees filed
answers denying the allegations. The matter was originally
set for trial on March 9, 2015, but Appellants sought a
continuance. The trial court granted the continuance and set
the trial for the week of August 24, 2015. Counsel for
Appellants withdrew from the case on August 12, 2015.
Subsequently, new counsel enrolled and sought to continue the
trial date. The second counsel for Appellants withdrew from
the case on September 8, 2015. A third counsel enrolled for
Appellants and sought a continuance of the November 23, 2015
trial date, which the trial court granted over the opposition
of both Appellees. The matter was reset for trial on March 9,
2016. On that date, the trial court granted a previously
filed motion to continue and set the trial for June 3, 2016.
Two days prior to the June 3, 2016 trial date, Appellants
filed a motion to continue trial. On the day of the trial,
the trial court heard oral arguments regarding the motion to
continue. The trial court denied the continuance, but agreed
to hold the transcript open to allow the Appellants to
proffer any necessary depositions. Counsel for Appellants
informed the trial court that he was not prepared to go
forward with the trial, and on oral motion of Matt Smith, the
case was dismissed with prejudice. The trial court signed a
judgment on July 13, 2016, dismissing Appellants' case,
with prejudice, and noting that Appellants declined at the
trial to present any evidence in support of their case.
having presented no evidence at the trial court, Appellants
filed an appeal in this matter. The return day was extended
in this matter until February 2, 2017. Therefore, both
Appellees answered the appeal within the time delay provided
by La. C.C.P. art. 2133, seeking damages for a frivolous
appeal. As noted above, this court dismissed the appeal as no
brief was filed on behalf of Appellants.
only issue before this court is whether Appellees are
entitled to damages for a frivolous appeal. Louisiana Code of
Civil Procedure article 2164 provides that an appellate court
may award damages, including attorney fees, for a frivolous
appeal, and may tax the costs of the lower or appellate
court, or any part thereof, against any party to the suit, as
in its judgment may be considered equitable. The courts have
been reluctant to grant damages under this article, as it is
penal in nature and must be strictly construed. Cordon v.
Par. Glass of St. Tammany, Inc., 2014-0475 (La.App. 1
Cir. 12/23/14), 168 So.3d 633, 640, writ not
considered, 2015-0167 (La. 4/17/15), 168 So.3d 390,
citing Henkelmann v. Whiskey Island Preserve, LLC,
2013-0180 (La.App. 1 Cir. 5/15/14), 145 So.3d 465, 471. In
order to assess damages for a frivolous appeal, it must
appear that the appeal was taken solely for the purpose of
delay or that counsel does not sincerely believe in the view
of law he advocates. Furthermore, because appeals are favored
in our law, penalties for the filing of a frivolous appeal
will not be imposed unless they are clearly due.
Cordon, 168 So.3d at 640.
Notice of Appeal was filed on October 5, 2016. On February 2,
2017, Matt Smith filed an answer to the appeal claiming he
had incurred attorney's fees and expenses in connection
with the case. On February 10, 2017, New Zion Baptist Church
filed an answer to the appeal seeking civil damages,
attorney's fees, and all costs (trial and appellate). On
March 3, 2017, this court notified the Appellants that
because no brief had been filed, the appeal would be deemed
abandoned pursuant to Rule 2-8.6 of the Uniform Rules of
Louisiana Courts of Appeal if the Appellants' brief was
not filed by a certain date. On March 27, 2017, Appellants
sought an extension of time to file their brief, which was
granted until April 12, 2017. On April 12, 2017, Appellants
again sought to extend the time to file their brief, which
this court denied on April 21, 2017. Prior to the denial,
Smith filed an appellee brief, which mainly asserted his
position as to damages for frivolous appeal. On May 3, 2017,
this court dismissed the appeal as abandoned.
appellant does not file a brief specifying any error, it is
difficult for a court to find that the party seriously
believed in the merits of his position. Voiron v.
Voiron, 2003-2823 (La.App. 1 Cir. 12/17/04), 897 So.2d
697, 699, citing Capital-Union Savings, FA. v.
Williams,528 So.2d 187, 188 (La.App. 1 Cir. 1988).
Furthermore, Appellants' abandonment of the appeal took
place after Smith and New Zion Baptist Church answered the
appeal seeking damages for frivolous appeal. See
Voiron, 897 So.2d at 699, citing Muse v. Ross,
26, 554 (La.App. 2 Cir. 3/1/95), 651 So.2d 364, 366;
Ecopour, Inc. v. McCloud,432 So.2d 380, 381
(La.App. 1 Cir. 1983). On the record before us, we find that
Appellants could not have possibly believed they could win
the appeal when it was filed. They presented absolutely no
evidence at the trial court, even though they were granted
four continuances of the trial date, and the trial court
agreed to hold the transcript open to proffer any necessary
depositions. The case had been pending since September 25,
2012, more than three years prior to the June 3, 2016 trial
date and over a year from the original trial date of March 9,
2015. We agree with counsel for Matt Smith that
Appellants' attempt to obtain a continuance based on
needing more discovery was ...