Christopher J. Bruno v. Jennifer M. Medley, Individually and "Jennifer M. Medley Campaign Fund"

CHRISTOPHER J. BRUNO * NO. 2020-CA-0515

VERSUS * COURT OF APPEAL

JENNIFER M. MEDLEY, * FOURTH CIRCUIT
INDIVIDUALLY AND
"JENNIFER M. MEDLEY * STATE OF LOUISIANA
CAMPAIGN FUND"
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DNA ATKINS, J., CONCURS IN THE RESULT WITH REASONS

I concur with the majority’s decision to affirm the trial court’s judgment

granting the preliminary injunction. After review of the record, I do not consider

this appeal to be frivolous. Accordingly, I find that Judge Bruno’s request for

frivolous appeal damages under La. C.C.P. art. 2164 should be denied.

Recently, in Ellison v. Romero, 2020-0376, p. 13 (La. App. 4 Cir. 8/11/20),

___ So.3d ___, 2020 WL 4592805 at *7, writ denied, 2020-01000 (La. 8/17/20),

300 So.3d 875, this Court articulated that “[o]ur jurisprudence reflects that

damages for a frivolous appeal may be awarded ‘if the appellant is trying to delay

the action or if the appealing counsel does not seriously believe the law he or she

advocates.’” (quoting Hunter v. Maximum Grp. Behavioral Servs., Inc., 2010-

0930, p. 6 (La. App. 4 Cir. 3/16/11), 61 So.3d 735, 739 (internal citation omitted)).

This Court went on to state that “[o]ur jurisprudence also reflects that

‘appeals are always favored and, unless the appeal is unquestionably frivolous,

damages will not be granted’ due in part to the possible chilling effect on the

appellate process.” Id. (quoting Johnson v. Johnson, 2008-0060, pp. 5-6 (La. App.

4 Cir. 5/28/08), 986 So.2d 797, 801 (internal citation omitted)). “Likewise, because

the statute allowing the imposition of damages for frivolous appeal is penal in

nature, it ‘must be strictly construed in favor of the appellant.’” Id., 2020-0376, p.

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14, ___ So.3d ___, 2020 WL 4592805 at *7 (quoting Hunter, 2010-0930, p. 6, 61

So.3d at 739).

Accordingly, “[e]ven when an appeal lacks serious legal merit, frivolous

appeal damages will not be awarded unless the appeal was taken solely for the

purpose of delay or the appellant’s counsel is not serious in the position he

advances.” Miralda v. Gonzalez, 2014-0888, p. 33 (La. App. 4 Cir. 2/4/15), 160

So.3d 998, 1019 (citing Dugas v. Thompson, 2011-0178, p. 15 (La. App. 4 Cir.

6/29/11), 71 So.3d 1059, 1068 (internal citation omitted); see also Hardy v. Easy

T.V. and Appliances of Louisiana, Inc., 2001-0025, p. 9 (La. App. 4 Cir. 12/12/01),

804 So.2d 777, 782; Sherman for and on Behalf of Magee v. B & G Crane Service,

455 So.2d 1275, 1278 (La. App. 4th Cir.1984).

Therefore, “[a]ny doubt regarding whether an appeal is frivolous must be

resolved in the appellant’s favor.” Streiffer v. Deltatech Constr., LLC, 2019-0990,

p. 17 (La. App. 4 Cir. 3/25/20), 294 So.3d 564, 578 (citing City of Ruston v.

Perritt, 30,896, p. 13 (La. App. 2 Cir. 9/23/98), 718 So.2d 1044, 1052); see also

Troth Corp. v. Deutsch, Kerrigan & Stiles, L.L.P., 2006-0457, p. 5 (La. App. 4 Cir.

1/24/07), 951 So.2d 1162, 1166.

Given that Medley asked for expedited consideration of her appeal, it cannot

be said that this appeal was taken to cause delay. Additionally, the record does not

support a finding that Medley’s counsel is not serious in the position Medley

advances. Although we have determined that Medley’s positions in this appeal are

ultimately incorrect, in applying the foregoing principles, I cannot say that

Medley’s appeal is frivolous. Accordingly, Judge Bruno’s request for frivolous

appeal damages is denied.

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