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                                                                                  *                    NO. 2009-CA-1729
COXE PROPERTY
MANAGEMENT AND                                                                    *
LEASING                                                                                                COURT OF APPEAL
*
VERSUS                                                                            FOURTH CIRCUIT
*
RICKEY J. WOODS AND                                                               STATE OF LOUISIANA
OCCUPANTS                                                                         *
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2006-8069, DIVISION “J-13”
Honorable Nadine M. Ramsey, Judge
PAUL A. BONIN
JUDGE
(Court composed of Judge Max N. Tobias, Jr., Judge David S. Gorbaty, Judge Paul
A. Bonin)
Stephen N. Chestnut
1413 Chartres Street
Suite A
New Orleans, LA 70116--2057
COUNSEL FOR ARONA TAYLOR WALKER
J. Rodney Messina
J. RODNEY MESSINA, APLC
256 East Boulevard
Baton Rouge, LA 70802
COUNSEL FOR DEFENDANT/APPELLANT, Rickey J. Woods
MOTION TO DISMISS APPEAL DENIED;
JUDGMENT AFFIRMED
AUGUST 11, 2010




Rickey Woods devolutively appeals the judgment rendered against him in
favor of Arona Taylor Walker in  the amount of  $5,000.    The amount  is to
compensate Ms. Walker for her movable property which Mr. Woods, her former
fiancé, refused to return to her.   Ms. Walker, for her part, moves to dismiss Mr.
Wood’s appeal as untimely.    She also requests additional damages from Mr.
Woods for a frivolous appeal.   Because we find Mr. Walker’s devolutive appeal to
have been filed within the statutory delay provided for such appeals, we deny Ms.
Walker’s motion to dismiss the appeal, and, because we find that the trial judge’s
award of special damages was reasonable and was not an abuse of her discretion,
we affirm the judgment.   Finally, because we find that Ms. Walker did not answer
Mr. Woods’ appeal, we determine that we are without jurisdiction to make an
award  of  additional  damages  for  frivolous  appeal.    We  explain  these  three
decisions in more detail in that same order in the following three parts.
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I
After the record was lodged in our court Ms. Walker filed a pleading titled
“Peremptory Exceptions of Prescription and No Right of Action.”   Irrespective of
the title, the pleading clearly seeks the dismissal of Mr. Woods’ devolutive appeal
as untimely. See La. C.C.P. art. 2162. We treat this pleading as a motion to dismiss
the appeal as untimely.   See La. C.C.P. art.  865  (“Every pleading shall be so
construed as to do substantial justice.”).  In Griffith v. Metry Cab Service, Inc., 266
So. 2d 739, 741 (La. App. 4th Cir. 1972), we stated in construing Article 865:
“[C]ourts look beyond mere heading and terminology used on or in pleadings to
determine the circumstances and the true nature thereof.” Appellate courts, too,
construe pleadings liberally to do substantial justice.   See McClelland v. State Nat.
Life Ins., 94-2123(La. 11/18/94), 646 So. 2d 309.
On June 17, 2009, at the conclusion of the trial on the merits, the trial judge
pronounced her decision to award Ms. Walker $5,000. See La. C.C.P. art. 1637.
The trial court, however, did not sign the judgment until July 1, 2009.   On August
20, 2009, Mr. Walker filed his motion for appeal.   Ms. Walker argues that Mr.
Woods had “sixty days” from the June 17th oral announcement within which to
timely move for appeal.  We disagree.
The  oral  announcement  is  not  a  final  appealable  judgment.    A  final
appealable judgment must be written.   See La. C. C. P. art. 1911, which states in
pertinent part:
Except  as  otherwise  provided  by  law,  every  final
judgment shall be signed by the judge.   For the purpose
of an appeal as provided in Article 2083, no appeal may
be taken from a final judgment until the requirement of
this Article has been fulfilled.
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See also Mullins v. Mississippi Valley Silica Co., Inc., 08-0330 (La. App. 4 Cir.
3/20/08), 982 So. 2d 209, 210.  Because Mr. Woods did not file a motion for new
trial after the rendition of the written judgment, he had                               60  days from  “[t]he
expiration of the delay for applying for a new trial...” within which to file his
motion for appeal. La. C. C. P. art. 2087 (1).   The delay for filing of a motion for
new trial is seven days from the mailing of the notice of signing of the judgment.
La. C. C. P. art. 1974.   Although the record before us does not contain a copy of
that notice, Mr. Woods’ counsel agrees that he received the notice shortly after the
signing of the judgment. The minimum statutory period in this case would have
been 67 days from July 1, 2009.   Having filed his motion for appeal on August 20,
2009, Mr. Woods’ motion was timely.
II
We now address the merits of Mr. Woods’ appeal.   His sole contention in
this  appeal  is  that  the  total  amount  of                                          $5,000  as  compensation  for  what  he
describes as a record player and albums is excessive.  A factfinder has considerable
discretion in making an award of damages.                                               “In the assessment of damages in
cases of offenses, quasi offenses, and quasi contracts, much discretion must be left
to the judge or jury.”  La. Civil Code art. 2324.1.
The standard of review for special damages is set forth by the Louisiana
Supreme Court in Kaiser v. Hardin, 06-2092, pp. 11-12 (La. 4/11/07), 953 So. 2d
802, 810:
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Special damages are those which have a  “ready
market  value,” such  that  the  amount  of the damages
theoretically may be determined with relative certainty,
including medical expenses and lost wages. McGee v. A
C and S, Inc., 05-1036 (La. 7/10/06), 933 So. 2d 770.   In
reviewing  a  jury’s  factual  conclusions  with  regard  to
special damages, an appellate court must satisfy a two-
step process based on the record as a whole:   There must
be  no  reasonable  factual  basis  for  the  trial  court’s
conclusions,  and  the  finding  must  be  clearly  wrong.
Guillory  v.  Ins.  Co.  v.  North  America,                                         96-1084  (La.
4/8/97), 692 So. 2d 1029.
See also Moffitt v Sewerage & Water Board of New Orleans, 2010 WL 2030377,
09-1596, p.   9 (La. App. 4 Cir. 5/19/10), ___ So. 3d ___, ___.
In this case the trial court made an award of special damages only.   Special
damages  are those which  generally refer  to  specific expenses  which  may be
quantified  arising out of the consequences  of the defendant’s  behavior.    For
example, medical and related expenses, both past and future, and earnings losses,
past and future, are special damages in tort cases.
Ms. Walker describes herself as a DJ or disc jockey.   She began her part-
time career at the WYLD radio station. According to her uncontradicted testimony,
around 1983 her late father had purchased for her Numark turntables, speakers, a
stand, headphones, and cables.  At the time the equipment cost him about $5,000 to
$6,000.   Her own estimate of the depreciated value of this equipment was $3,000.
In preparation for trial she obtained an estimate or appraisal from C and C Music
Center.   Although the trial judge refused over Mr. Woods’ objection to allow the
introduction of the written appraisal, the judge did permit Ms. Walker to testify
without any further objection from Mr. Woods as to the amount of the appraisal.
See La. C.E. art. 103 A(1).  The value was stated to be almost $3,400.  Mr. Woods,
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who did not testify, did not offer any competing valuations.    The trial court
awarded $2,500 for the depreciated equipment.
The trial court awarded an additional $2,500 for the loss of over 200 LP
albums and 45 records which were used in the DJ business.   The lost recordings
included performances by Quincy Jones, Roberta Flack, and the Chi-Lites.   Hilton
Anderson, Jr. verified that Ms. Walker had a considerable collection of “albums
and music.”  According to Ms. Walker’s testimony, the value of each lost LP or 45
starts at $5.00.   Again, Mr. Woods offered no competing, much less contradictory,
valuations of the collection.
A trial judge’s determination of value is a finding of fact which is reviewed
under the “clearly wrong” standard.   See Katner v. Katner, 09-0974, p. 5 (La. App.
4 Cir. 12/23/09), 28 So. 3d 566, 571; Rosell v. ESCO, 549 So. 2d 840, 844 (La.
1989).   We find the awards for the equipment and the record collection to be
reasonable and not clearly wrong.   Accordingly, we affirm the award of special
damages.
III
We finally address Ms. Walker’s request for additional damages incurred as
a result of what she categorizes as Mr. Woods’ frivolous appeal.   She first made
this request in her pleading filed on April 8, 2010.   An appellee, such as Ms.
Walker, may seek additional damages on account of a frivolous appeal.   See La.
C.C.P. art. 2164 (which provides in part that “[t]he [appellate] court may award
damages for frivolous appeal …”).
An appellate court, however, does not have jurisdiction to consider a request
for damages for a frivolous appeal absent an appeal or an answer to an appeal.  See
La. C. C. P. arts.                                                                    2121 and 2133 A.   See also Westcott v. Westcott, 08-1339, p. 1,
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fn. 1 (La. App. 4 Cir.                                                                                            4/17/09), 11 So. 3d 45, 48.; HCNO Services, Inc. v. Secure
Computing Systems, Inc., 96-1753, 96-1693 (La. App. 4 Cir. 4/34/97), 693 So. 2d
835, 847.  Ms. Walker did not file an appeal under Article 2121. 1
Under Article 2133 A, an answer to an appeal must be filed at the latest
within 15 days of the return date or of the lodging of the record, whichever is the
later date.2 The record was lodged on December 28, 2009, which was after the
return date.   Even if we were to consider Ms. Walker’s pleading filed on April 8,
2010, as an answer to Mr. Woods’ appeal, it is untimely.   In the absence of a
timely answer to the appeal, we are without jurisdiction to consider Ms. Walker’s
request for additional damages.
DECREE
Accordingly, we deny the motion of Arona Taylor Walker to dismiss the
appeal of Rickey J. Woods and her request for additional damages;   and we affirm
the judgment in her favor and against Mr. Woods in the full amount of $5,000.  All
costs of this appeal are assessed to Rickey J. Woods.  La. C.C.P. art. 2164.
MOTION TO DISMISS APPEAL DENIED;
JUDGMENT AFFIRMED
1   La. C. C. P. art. 2121 states in pertinent part:                                                              “An appeal is taken by obtaining an order therefor, within the delay
allowed, from the court which rendered the judgment.   An order of appeal may be granted on oral motion in open
court, on written motion, or on petition.”
2 La. C.C.P. art. 2133 A provides:
An appellee shall not be obliged to answer the appeal unless he desires
to have the judgment modified, revised, or reversed in part or unless he demands
damages against the appellant. In such cases, he must file an answer to the
appeal, stating the relief demanded, not later than fifteen days after the return
day or the lodging of the record whichever is later.   The answer filed by the
appellee shall be equivalent to an appeal on his part from any portion of the
judgment  rendered  against  him  in  favor  of  the  appellant  and  of  which  he
complains in his answer.   Additionally, however, an appellee may by answer to
the appeal, demand modification, revision, or reversal of the judgment insofar as
it did not allow or consider relief prayed for by an incidental action filed in the
trial court.   If an appellee files such an answer, all other parties to the incidental
demand may file similar answers within fifteen days of the appellee’s action.
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