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Etienne v. C. Thompson Automotive, Inc.

Court of Appeals of Louisiana, Third Circuit

March 13, 2019

ARTHUR ETIENNE, JR.
v.
C. THOMPSON AUTOMOTIVE, INC., ET AL

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, No. 2014-0446 HONORABLE EDWARD RUBIN, DISTRICT JUDGE

          JOSLYN RENEE ALEX ALEX & ASSOCIATES COUNSEL FOR PLAINTIFF/APPELLANT ARTHUR ETIENNE, JR.

          KRISTIN L. BECKMAN BARASSO USDIN KUPPERMAN FREEMAN & SARVER, COUNSEL FOR DEFENDANT/APPELLEE PEERLESS INSURANCE Company

          Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry, Judges.

          JONATHAN W. PERRY JUDGE.

         The plaintiff, Arthur Etienne, Jr. ("Etienne"), appeals the adequacy of the general damages the trial court awarded him on a judgment by default. Finding no abuse of discretion, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On July 27, 2013, Etienne was involved in a motorcycle accident. Within a year of the accident, Etienne filed suit against C. Thompson Automotive, Inc. ("Thompson Automotive"), contending Thompson Automotive defectively manufactured his motorcycle and he suffered injuries as a result of that manufacturing defect. In his initial petition, Etienne alleged that Thompson Automotive had a liability policy with "XYZ Insurance Company." Later, Etienne amended his petition, replacing "XYZ Insurance Company" with Peerless Insurance Company ("Peerless"). Service was made on Thompson Automotive and Peerless through Louisiana's long-arm statute, on June 2, 2014 and October 21, 2014, respectively.

         On February 9, 2017, Etienne moved for a preliminary default against Thompson Automotive and Peerless. Later, on February 26, 2018, the trial court entered a final default judgment against both Thompson Automotive and Peerless. After hearing Etienne's testimony about the circumstances of his accident and his injuries, the trial court awarded general damages of $7, 000.00 and medical expenses of $2, 219.12 but declined to award damages for lost wages because it was "not satisfied that [Etienne] met [his] burden."

         On April 23, 2018, Etienne timely filed a motion for appeal. Peerless filed an answer to Etienne's appeal on October 15, 2018.

         TIMELINESS OF PEERLESS'S ANSWER TO THE APPEAL

         At the outset, we must determine if Peerless timely filed its answer to the appeal.

         Louisiana Code of Civil Procedure Article 2133 provides that an appellee seeking to have the judgment modified, revised, or reversed must file an answer to the appeal not later than fifteen days after the return date or the lodging of the record, whichever is later. This court mailed a notice of lodging to the parties on September 17, 2018, making the answer due on October 2, 2018.

         Alternatively, the answer was due within fifteen days of the return date, which the trial court set "according to law." The timing of the return date is governed by La.Code Civ.P. art. 2125, which provides that when there is testimony to be transcribed, the return date is forty-five days from the date estimated costs are paid. As the Deputy Appeals Clerk for Acadia Parish confirmed in correspondence to this court, Etienne paid the estimated costs on July 8, 2018. As a result, the return ...


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