Fogleman v. Roy O. Martin Industries, Inc.

432 So. 2d 1197

• Court: Louisiana Court of Appeal
• Decided: May 25, 1983
• Docket: 83-149
• Status: Published

Opinion

432 So.2d 1197 (1983)

Thelma E. FOGLEMAN and Perry H. Fogleman, Plaintiffs-Appellees,
v.
ROY O. MARTIN INDUSTRIES, INC. and Louisiana Pacific Corporation, Defendants-Appellants.

No. 83-149.

Court of Appeal of Louisiana, Third Circuit.

May 25, 1983.

Gold, Little, Simon, Weems & Bruser, Dee D. Drell, Alexandria, for defendants-appellants.

Nelson M. Lee and Dan B. McKay, Bunkie, for plaintiffs-appellees.

Before GUIDRY, LABORDE and KNOLL, JJ.

KNOLL, Judge.

MOTION TO DISMISS AMENDED ANSWER TO APPEAL

The defendants-appellants, Roy O. Martin Industries, Inc. and Louisiana Pacific Corporation, move to dismiss the amended answer to appeal filed by the appellees, Thelma E. Fogleman and Perry H. Fogleman, as being untimely filed.

The record in this case was lodged in the Court of Appeal on February 22, 1983. Appellees' original answer was filed well within the 15 day delay allowed by C.C.P. Article 2133. However, appellees' amended answer, one which seeks additional damages for a frivolous appeal, was filed on April 14, 1983.

The appellant argues that an amended answer must be filed within the delay allowed for the filing of the original answer but cites no authority for this argument.

As there is no statutory law concerning the timely filing of amended answers to appeals, this court will exercise the broad authority granted to it by C.C.P. Article 2164 and allow the amended answer to be filed.

The appellant also contends that the amended answer should be dismissed on the grounds that the appellees cannot succeed on the merits. As to appellants' second argument, this court will not consider a motion to dismiss an appeal or pleading filed therein which is based on issues which go to the merits of the appeal or pleading. Caspari v. Deblieux, 391 So.2d 494 (La.App. 3rd Cir.1981).

MOTION DENIED.