Sample v. Sample

May 17, 1983
82 CA 0468
Versions:
432 So.2d 376 (1983)

Barbara Suzanne SAMPLE
v.
John Henry SAMPLE.

No. 82 CA 0468.

Court of Appeal of Louisiana, First Circuit.

May 17, 1983.

Alan S. Fishbein, Baton Rouge, for plaintiff-appellee.

G. Thomas Arbour, Baton Rouge, for defendant-appellant John Henry Sample.

Before PONDER, SAVOIE and CRAIN, JJ.

CRAIN, Judge.

This is an appeal from the judgment of the Family Court of East Baton Rouge denying defendant's motion to have an injunction declared terminated.

Previously, we ruled that the parties both stipulated to mutual injunctions prohibiting them from alienating or encumbering any community property prior to voluntary settlement or judicial partition of the property, and that, until such conditions occurred, the injunctions were not appealable. Sample v. Sample, 423 So.2d 106, (La. App. 1st Cir.1982). However, we found that the other provisions of the trial court's *377 judgment were appealable so we refused to dismiss the appeal. Since our ruling, appellant has not specified any additional error. Consequently, there is nothing for us to review except the refusal to terminate the injunction. La.C.C.P. Art. 2085; Uniform Rules-Courts of Appeal, Rule 2-12.4. Therefore, the appeal is dismissed.

The remaining question is appellee's answer to this appeal alleging it is frivolous. La.C.C.P. Art. 2164 allows damages and attorney's fees in cases of frivolous appeals. Where contentions on appeal are without merit, but raise legitimate issues, damages for frivolous appeals are not allowed. Mauboules v. Broussard Rice Mills, 379 So.2d 1196 (La.App. 3rd Cir.1980), writ denied at 381 So.2d 1234 (La.1980). Damages will lie when it is manifest that the appeal was taken solely for the purpose of delay or when it is evident that appellant's counsel is not serious in advocating the view of law which he presents. Salmon v. Hodges, 398 So.2d 548 (La.App. 1st Cir. 1979). In the instant case, although appellant's position is without merit, counsel for appellant raised legitimate questions and seriously advocated his view. Therefore, damages for frivolous appeal will not issue.

For the reasons assigned, the appeal is dismissed and damages for frivolous appeal are denied. Costs are to be paid by appellant.

APPEAL DISMISSED.