Ecopur, Inc. v. McCloud

432 So. 2d 380, 1983 La. App. LEXIS 8547

Opinion

CRAIN, Judge.

Defendant, C.E. McCloud d/b/a McCloud and Company, appealed from the judgment of the trial court in favor of plaintiff, Eco-pur, Inc. The judgment awarded damages to plaintiff for breach of contract, as well as reasonable attorney’s fees. On January 12,1983, we dismissed appellant’s appeal for failure to timely file his brief.

Ecopur, Inc. also appealed the dismissal of its third party demand simply to protect its rights in the event this court changed the judgment of the trial court on McCloud’s appeal. Since McCloud’s appeal has been dismissed, Ecopur, Inc. agrees that its appeal should also be dismissed. We accordingly dismiss the appeal of Ecopur, Inc.

The only question before us is Ecopur’s answer to McCloud’s appeal claiming it is frivolous. Damages for frivolous appeal have been allowed where the appeal was taken solely for purposes of delay, or where counsel for appellant did not sincerely believe the merit of the appellant’s position. Ratliff v. Roy, 260 So.2d 171 (La.App. 2d Cir.1972). Since appellant has not filed a brief specifying any error, it is difficult for us to find that he seriously believed in the merits of his position.

Accordingly, we find the appeal to be frivolous and the attorney’s fees in the amount of $250.00 requested by Ecopur, Inc. to be reasonable.

DECREE

For the reasons assigned, the remaining appeal of Ecopur, Inc. is dismissed as moot. Damages for frivolous appeal are granted in favor of Ecopur, Inc. against C.E. McCloud in the amount of $250.00. Costs of this appeal are to be paid by Ecopur, Inc.

DISMISSED IN PART, RENDERED IN PART.