Gardner v. Beckham

504 So. 2d 1106, 1987 La. App. LEXIS 9116

• Court: Louisiana Court of Appeal
• Decided: March 16, 1987
• Docket: No. 86-CA-577
• Status: Published

Opinion

GOTHARD, Judge.

Defendant, Shirley Beckham, appealed from the judgment of the trial court in favor of plaintiff, Richard J. Gardner. The judgment awarded ownership of a 4.45 carat solitaire diamond ring to plaintiff for nullity of donation in default of marriage. On December 18, 1986 we dismissed appellant’s appeal for failure to timely file her brief.

The only questions before us are in Gardner’s answer to Beckham’s appeal, claiming error in the trial court’s failure to award him damages, and also claiming Beckham’s appeal was frivolous.

The trial court’s award of the diamond ring to Mr. Gardner did not include damages as none were requested; accordingly, this issue presents nothing for our review.

Damages for frivolous appeal are not allowable unless the appeal was taken solely for purposes of delay or counsel for appellant did not sincerely believe his position had merit. Ratcliff v. Roy, 260 So.2d 171 (La.App. 2nd Cir.1972).

We are of the opinion that the defendant was serious in perfecting her appeal and that it was not taken for delay. The issue of ownership of the ring is one of fact. Ms. Beckham’s counsel extensively litigated her case, including the taking of depositions, the urging of relevant motions both before and after trial, and presentation- to the trial judge of well-written memoranda detailing the applicable law. Therefore, Ms. Beckham was a bona fide appellant.

Delay could not be any benefit to Ms. Beckham. She had deposited the ring and $2500.00 as security pending the outcome of the appeal.

We hold that initially there was a genuine interest to win a reversal, and we reject plaintiff’s demand for damages for frivolous appeal.

Each party is to bear his own cost of the appeal.

CLAIM FOR FRIVOLOUS APPEAL DENIED.