Opinion
No. 97 CA 2228.
December 28, 1998.
APPEAL FROM PARISH COURT, PARISH OF ASCENSION, NO. 94-269 STATE OF LOUISIANA, HONORABLE MARILYN LAMBERT, J.
Steve Joffrion, Gonzales, LA, Counsel for plaintiff/appellee, Danny Hanna.
Glen E. Smith, Baton Rouge, LA, Counsel for plaintiff/appellee, Shannon Babin.
R. Henry Sarpy, Jr., Richard C. Badeaux, New Orleans, LA, Counsel for defendant/appellant, Reliance Insurance Company.
John A.E. Davidson, Metairie, LA, Counsel for defendant/appellee, Jose Hernandez.
Arthur H. Andrews, Baton Rouge, LA, Counsel for defendant/appellee, Homestead Insurance Company.
BEFORE: SHORTESS, CARTER AND WHIPPLE, JJ.
Defendant, Reliance Insurance Company ("Reliance") appeals from a judgment rendered by the Ascension Parish Court, in which the court denied as untimely its petitions for suspensive appeal from both an original judgment and an amended judgment rendered in this matter. For the following reasons, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
On July 14, 1994, Danny Hanna ("Hanna") and his passenger Shannon Babin ("Babin") were travelling west on I-10 near LaPlace, Louisiana when his pick-up truck collided into the rear end of a slower moving westbound vehicle in front of them. The forward vehicle was a delivery truck owned by Vincent Piazza, Jr. Sons Seafood, Inc. ("Piazza Sons") and being driven by Jose Hernandez ("Hernandez") while in the course and scope of his employment with Piazza Sons.
On August 10, 1994, Danny Hanna filed suit in Ascension Parish Court, naming as defendants: (1) Hernandez, as the driver of the other vehicle; (2) Piazza Sons, as the employer of Hernandez; (3) Homestead Insurance Company, the liability insurer for Piazza Sons; and (4) Reliance, Hanna's alleged uninsured/underinsured motorist (UM) insurer. Raising coverage and other issues, Reliance filed a third-party demand against Arnold Martinez d/b/a Martinez Insurance Agency ("Martinez"), the auto insurance procuring agent for Hanna. Homestead, Piazza Sons and Hernandez ("the Homestead group") all filed reconventional demands against Hanna.
On December 6, 1994, Babin filed suit in the 23rd Judicial District Court, naming as defendants the Homestead group and Reliance, in its alleged capacity as Hanna's liability insurer, pursuant to the direct action statute. Babin's suit was transferred from the 23rd Judicial District Court to the Parish Court for the Parish of Ascension and was consolidated with Hanna's pending case. The consolidated cases were tried on January 9, 1996, and taken under advisement.
In written reasons for judgment addressing liability and coverage, the trial court concluded that Hanna had a policy with Reliance providing liability, collision and UM coverage in full force and effect at the time of the accident. The court also concluded that there was no merit to the third-party claim asserted by Reliance against Martinez or his insurance agency. The court further concluded that Hanna was solely at fault in causing the accident.
Although the written reasons are not dated, the Clerk's stamp indicates the reasons were filed in the record herein on August 14, 1996.
Accordingly, by judgment dated August 13, 1996, judgment was rendered as follows:
(1) in favor of Hanna and against Reliance in the amount of $23,970.56, representing Hanna's undisputed property damage loss in the amount of $19,400.00 and his replacement rental cost;
(2) in favor of Babin and against Hanna and Reliance in the amount of $2,996.00 in special damages, and $15,000.00 for mental anguish and future medicals, for a total of $17,996.00;
(3) in favor of Piazza Sons and Homestead and against Hanna and Reliance in the amount of $1,061.31; and
(4) in favor of Hernandez and against Hanna and Reliance in the amount of $50.00, representing lost wages and $500.00 for mental anguish and inconvenience.
The judgment also dismissed all other claims. On August 15, 1996, the Clerk issued notice of judgment to the parties through their counsel.
On August 19, 1996, on its own motion, the trial court rendered an additional judgment. The August 19th amended judgment was identical to the original judgment, with the exception of the first paragraph. Paragraph (1) of the amended judgment provided that judgment was rendered:
(1) in favor of Hanna and against Reliance in the amount of $23,970.56 representing Hanna's undisputed property damage loss in the amount of $19,400.00 and his replacement rental cost, as consequential damages for violation of LSA-R.S. 22:1220 .
Thus, the August 19th amended judgment included language which specified that the replacement rental cost was being granted as a result of Reliance's breach of a specific penal statute. On August 22, 1996, the Clerk again issued notice of the judgment to the parties through their counsel
On September 12, 1996, Reliance filed a petition for suspensive appeal of the August 13, 1996 original judgment. On September 18, 1996, the trial judge denied the motion for appeal as untimely. Thereafter, on September 24, 1996, Reliance filed an amended petition for suspensive appeal directed to the August 19, 1996 amended judgment. This petition likewise was denied as untimely on September 25, 1996.
Pursuant to LSA-C.C.P. art. 5002 (A), "[a]n appeal from a judgment rendered by a city court or parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary."
Reliance then filed an application for supervisory writs to this court seeking review of the trial court's denial of the petitions for appeal. On April 17, 1997, this court granted the writ application in part, vacated the order denying the suspensive appeal and ordered that the consolidated cases be remanded to the Ascension Parish court for an evidentiary hearing on the issue of Reliance's receipt of notice of the judgments in order to determine the timeliness of the appeals. On remand, based on the stipulations and testimony, the trial court rendered judgment dated June 23, 1997, finding that Reliance had received timely notice of the judgments and again ruling that the petitions for appeal filed by Reliance in September 1996 were untimely.
From this June 23, 1997 judgment, Reliance appeals, contending that the trial Court misapplied LSA-C.C.P. art. 5002 and erred in concluding that its petitions for appeal of both the original and amended judgments were untimely. Babin, Hanna, the Homestead group and Martinez answered the appeal seeking damages for frivolous appeal.
DISCUSSION Timeliness of Appeal from the August 19, 1996 Amended Judgment
In determining whether the petitions for appeal were timely, we must first consider the legal effect, if any, of the amended judgment and its impact, if any, upon the delay for appeal.
Louisiana Code of Civil Procedure art. 1951 provides: "A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party: (1) To alter the phraseology of the judgment, but not the substance; or (2) To correct errors of calculation." Thus, under LSA-C.C.P. art. 1951, a judgment may be amended where the amendment takes nothing from or adds nothing to the original judgment. Starnes v. Asplundh Tree Expert Company, 94-1647, p. 5 (La.App. 1st Cir. 10/6/95); 670 So.2d 1242, 1246.
Where an amendment to a judgment adds to, subtracts from, or in any way affects the substance of the judgment, the judgment may not be amended under LSA-C.C.P. art. 1951. Starnes, 94-1647 at p. 5; 670 So.2d at 1246. The proper vehicle for a substantive change in a judgment is a timely motion for a new trial or a timely appeal. Gentile v. Baton Rouge General Medical Center, 95-0348, p. 3 (La.App. 1st Cir. 11/9/95); 665 So.2d 422, 425. The Louisiana Supreme Court has also recognized that a trial court may amend a judgment substantively, on its own motion with consent of the parties. Villaume v. Villaume, 363 So.2d 448, 451 (La. 1978). However, an amended judgment rendered without recourse to these procedures is an absolute nullity. Gentile, 95-0348 at pp. 3-4; 665 So.2d at 425.
In the case sub judice, it is undisputed that none of these procedures occurred herein. Instead, the subsequent judgment was rendered by the trial court ex proprio motu. The issue then becomes whether or not the amendment to the judgment was substantive amendment. We conclude that the August 19, 1996 amendment did more than alter the phraseology of the original judgment. See LSA-C.C.P. art. 1951. The additional language in the judgment modified the judgment by specifying that the amount awarded for the rental reimbursement cost was a damage award assessed pursuant to LSA-R.S. 22:1220, thereby providing a new legal basis for the award.
We deem this change significant and substantive inasmuch as the award of damages and/or penalties pursuant to LSA-R.S. 22:1220 requires a factual determination after consideration of evidence directed to this issue, that the insurer had breached its duty of good faith and fair dealing in handling the claims of the insured. See Graves v. Businelle Towing Corp., 95-1999, p. 6 (La.App. 1st Cir. 4/30/96); 673 So.2d 311, 315; Holt v. Aetna Casualty Surety Co., 28,450, 28,451, 28,452, p. 18 (La.App. 2nd Cir. 9/3/96); 680 So.2d 117, 130, writ denied, 96-2515 (La. 12/6/96); 684 So.2d 937, writ denied, 96-2523 (La. 12/6/96); 684 So.2d 938.
LSA-R.S. 22:1220 (A) imposes on the insurer a duty of good faith and fair dealing and describes this duty as, "[an] affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach." An insurer's breach of the duty of good faith and fair dealing in performance of the contract renders it liable for any damages foreseeable or not that are a direct consequence of its failure to perform. Williams v. Louisiana Indemnity Company, 26,887, p. 3 (La.App. 2nd Cir. 6/21/95); 658 So.2d 739, 742.
LSA-R.S. 22:1220 (B) enumerates the acts which constitute a breach of the affirmative duty set forth in paragraph (A). LSA-R.S. 22:1220 (C) authorizes a double damages penalty in addition to damages under paragraph (A).
Indeed, in order to assert a claim under LSA-R.S. 22:1220, a plaintiff must allege and establish that the defendant insurer knowingly committed one of the acts set out in paragraph (B) of the statute. Spear v. Tran, 96-1490, p. 2 (La.App. 4th Cir. 9/18/96); 682 So.2d 267, 269, writ denied, 96-3024 (La. 2/7/97); 688 So.2d 500. Moreover, penalties, as opposed to compensatory damages, involve different interpretive jurisprudence and strict statutory construction. See Holt, 28,450, 28,451, 28,451 at p. 18; 680 So.2d at 130.
Despite these threshold requirements for the making of an award pursuant to LSA-R.S. 22:1220, it appears that the issue of Reliance's breach of the LSA-R.S. 22:1220 duty of good faith and fair dealing was raised in Hanna's post-trial memorandum, filed with the clerk of court two days after the original judgment was signed.
Hanna's post-trial memorandum was filed with the Clerk of Court on August 15, 1996. Thus, the judgment and the reasons were already rendered, signed and filed before Hanna's post-trial memorandum was submitted. The amendment to award LSA-R.S. 22:1220 damages that the trial court later made to the August 15, 1996 judgment clearly incorporated part of the argument made by Hanna in his post-trial memorandum concerning similar duties owed under LSA-R.S. 22:658.
Under these circumstances, where the amendment necessarily required factual evidence and additional findings of fact and which granted relief on an additional basis, we conclude that while the dollar amounts of the judgment remained the same, by changing the legal basis for the award of rental costs, the amended judgment substantively altered the August 13th judgment in violation of the provisions of LSA-C.C.P. art. 1951. Cain v. Aquarius Builders, Inc., 96-66, pp. 8-9 (La.App. 5th Cir. 7/30/96); 680 So.2d 69, 74; Alliance for Good Government Inc. v. Jefferson Alliance For Good Government, 96-309, pp. 6-7 (La.App 5th Cir. 10/16/96); 683 So.2d 836, 839.
The usual remedy applied by an appellate court which finds an amendment made in violation of LSA-C.C.P. art. 1951 is to annul and set aside the amending judgment and reinstate the original judgment. Alliance for Good Government, 96-309 at p. 7; 683 So.2d at 839; see also, Gentile, 95-0348 at p. 4; 655 So.2d at 425. Accordingly, we annul and set aside the amended judgment of August 19, 1996, and reinstate the judgment of August 13, 1996.
Because the August 19, 1996 amended judgment is without legal effect, the appeal delay began from the date of notice of the original judgment. Therefore, the issue of the timeliness of appeal from the August 19, 1996 amended judgment is moot. Stevenson v. State Farm, 624 So.2d 28, 30 (La.App. 2nd Cir. 1993). Thus, the issue before the court is whether Reliance's petition for appeal was timely with respect to the original judgment.
The issue also has been raised whether the judgment of August 19, 1996 is a single judgment or if each award is a separate judgment for purposes of LSA-C.C.P. art. 1951. We find it unnecessary to address the merit of this issue because, whether or not the judgment in this case constitutes "many separate judgments" or a single judgment with several awards, we are convinced that the entire August 19, 1996 amended judgment is null and must be set aside.
Clearly, the amendment to the award in favor of Hanna is a substantive alteration. As to the unaltered awards (paragraphs 2 through 4 of the judgment) of the August 19th amended judgment, even if we were to assume that each award made therein constituted a separate judgment for purposes of LSA-C.C.P. art. 1951, the unaltered awards would likewise be without legal effect, as a trial court has no authority under these circumstances to render such a final judgment, even one that is practically identical to a prior final judgment. Ahmed v. Bogalusa Kidney Care Center, 560 So.2d 485, 486 (La.App. 1st Cir.), writ denied, 564 So.2d 324 (La. 1990); Pousson v. Klumpp, 456 So.2d 1037, 1038 (La.App. 3rd Cir. 1984). Therefore, even if we assume, arguendo, that the separate awards constituted separate judgements, (and thus that the substantive amendment to paragraph one would not have affected the other awards) this does not alter our conclusion that the entire amended judgment and all of the awards and provisions contained therein have no legal effect upon the appeal delay.
The Appeal from the August 13, 1996 Original Judgment: Application of LSA-C.C.P. art. 5002
In its appeal brief, Reliance contends that its September 12, 1996 motion for appeal from the August 13, 1996 original judgment is timely and avers the trial court misapplied LSA-C.C.P. art. 5002 in failing to so conclude. Reliance first argues that LSA-C.C.P. art. 5002 requires service of notice of judgment by proper process with proof of service filed in the record to commence the running of the appeal delay. Second, Reliance contends that LSA-C.C.P. art. 2123 applies to appeals taken from parish court where notice of judgment is mailed. Alternatively, Reliance argues that if notice of judgment may be mailed pursuant to LSA-C.C.P. art. 5002, any notice of judgment must be mailed by certified or registered mail and proof of receipt must be filed in the record for the ten-day appeal delay of LSA-C.C.P. art. 5002 to commence. These arguments are without merit.
We note that although the appellant's brief lists "issues presented," the arguments actually presented neither follow the order of the "issues presented" nor do the arguments made in the brief directly track the enumerated "issues presented"; therefore, this court has tried to address the arguments made by the appellant in the most efficient manner possible.
Louisiana Civil Code of Procedure art. 5002(A) sets forth a ten-day delay period for appeal from a parish court judgment and provides, in part, "An appeal from a judgment rendered by a . . . parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary." Louisiana Code of Civil Procedure article 4905 addresses notice of judgment in parish or city courts and provides in paragraph (A)(2) one of the circumstances under which notice of a parish court judgment is necessary: when "[t]he case has been taken under advisement." Additionally, Subparagraphs (B) and (C) of LSA-C.C.P. art. 4905 further indicate how notice of judgment may be given when it is necessary: it must be served upon a party who does not have counsel of record, but it must be mailed or delivered to the counsel of record when the party entitled to notice is represented.
In the present case, after the consolidated cases were tried on January 9, 1996, the trial court took the case under advisement until judgment was rendered in August of the same year. Thus, it is clear that the parties in this case were entitled to receive notice of the judgment, and because all parties were represented by counsel of record, the proper method of giving notice of the judgment was by mailing or delivering a copy to the counsel of record as set forth in LSA-C.C.P. art. 4905.
At the hearing on the timeliness of the petitions for appeal, the Deputy Clerk of Court of Ascension Parish testified that the notices of the original judgment rendered August 13th were mailed to all counsel of record on August 15, 1996. Additionally, counsel for Reliance admitted having received notice of the August 13, 1996 judgment by mail on August 19, 1996. Nevertheless, the motion to appeal the August 13th judgment was not filed until September 12, 1996, far in excess of ten days from Reliance's receipt of notice of judgment.
Under the applicable law and jurisprudence, Reliance's appeal of the August 13th judgment is clearly untimely. Myles v. Turner, 612 So.2d 32, 35 (La. 1993). In Myles, the Louisiana Supreme Court resolved a split amongst the circuit courts regarding the commencement of the appeal delays set forth by LSA-C.C.P. art. 5002. The court held that the 10-day appeal delay provided for in LSA-C.C.P. art. 5002 commences to run the day after receipt of the notice of judgment rather than the day after the mere mailing of said notice. Myles, 612 So.2d at 35. Thus, under Myles, the ten-day appeal delay commenced running on August 20, 1996, and the September 12, 1996 motion to appeal was untimely.
The Myles Court expressly overruled the decisions of the first, second, and third circuits to the contrary. Myles, 612 So.2d at 35. See e.g., Dimaio v. Tucker, 506 So.2d 846 (La.App. 1st Cir. 1987), and St. Amant v. Talley, 436 So.2d 659 (La.App. 1st Cir. 1983).
"Service of Notice of Judgment" Under LSA-C.C.P. art. 5002
Nevertheless, counsel for Reliance argues that LSA-C.C.P. art. 5002 requires service of notice of judgment by proper process and proof of service filed in the record in order to commence the running of the ten-day delay period and that Myles should be overruled or modified to the extent it is inconsistent with this suggested reading of article 5002. We likewise find no merit to this argument.
The procedural article that dictates when and how notice of a parish court judgment shall be made declares that when a party has counsel of record, notice of judgment shall be given by "mailing or delivering" a copy of the judgment to counsel of record. LSA-C.C.P. art. 4905 (C). In contrast, the same article mandates that when a party does not have counsel of record, the notice shall be "served by a proper officer upon the party, either personally or at his domicile." LSA-C.C.P. art. 4905 (B).
At the outset, we note that both articles 4905 and 5002 were enacted by the same legislative act, Acts 1986, No. 156, § 1; address the same subject matter, rules of parish court; and are both situated in Book VIII, Title 2 of the Code of Civil Procedure. In interpreting a part or section of an act in dispute, we are obligated to interpret the part or section in connection with the rest of the act, and in connection with all laws on the same subject-matter. LSA-C.C. art. 13; Thibaut v. Board of Commissioners of Lafourche Basin Levee District, 153 La. 501, 505-506, 96 So. 47, 48 (1923). To prevent their misapplication, codal articles must not be read in isolation. See Potter v. First Federal Savings and Loan Association of Scotlandville, 615 So.2d 318, 322 (La. 1993).
Viewed alone, LSA-C.C.P. art. 5002 perhaps could be interpreted as requiring service in the manner urged by Reliance. However, when "service of notice of judgment" as used in LSA-C.C.P. art. 5002 is read in pari materia with LSA-C.C.P. art. 4905, it is clear that service of notice of judgment in the form suggested by Reliance is not required when a party is represented by counsel of record. In view of the fact that both articles were enacted by the same legislative act and address the same subject matter, i.e., procedure in parish and city courts, and because LSA-C.C.P. art. 4905 is more specific and describes how service of notice of judgment is to be made in parish court, this more specific article sets forth the type of service contemplated by LSA-C.C.P. art. 5002's use of the term "service of notice of judgment." See Delahoussaye v. Thibodeaux, 498 So.2d 1137, 1138 (La.App. 3rd Cir. 1986), writ denied, 501 So.2d 236 (La. 1987). Thus, "service of notice" as contemplated by LSA-C.C.P. art. 5002 and by reference to LSA-C.C.P. art. 4905 means service "by a proper officer upon the party" who does not have counsel of record, but means "mailing or delivering" notice to counsel of record, when the party has counsel of record.
We find further support for our rejection of this argument in other courts' treatment of the same statute, where the courts have interpreted "service of notice of judgment" for purposes of LSA-C.C.P. 5002 by referring to LSA-C.C.P. art. 4905. See Myles, 612 So.2d at 34; Smith v. Winn-Dixie Louisiana, Inc., 626 So.2d 750, 751-752 (La.App. 5th Cir. 1993). Thus, we reject Reliance's arguments.
Application of LSA-C.C.P. art. 2123 to Parish Court
Citing LSA-C.C.P. art. 5003, appellant asserts that the Parish Court rules found in Book VIII of the Code of Civil Procedure are silent as to the delay for appeal of judgments mailed to the parties, and therefore, the general rules for appeals apply. Thus, Reliance contends, the 30-day appeal delay of LSA-C.C.P. art. 2123 applies to appeals taken from parish court when notice of judgment is mailed.
LSA-C.C.P. art. 5003 provides: "The appellate procedure provided by Book III for appeals from the district court shall be applicable."
We disagree. Reliance again errs by interpreting LSA-C.C.P. art. 5002 in isolation without reference to the articles on the same subject matter. See LSA-C.C. art. 13; Thibaut, 153 La. at 505-506, 96 So. at 48. As previously discussed, LSA-C.C.P. art. 5002 must be interpreted in relation to LSA-C.C.P. art. 4905.Potter, 615 So.2d at 322.
Based on our conclusion that "service of notice" as used in LSA-C.C.P. art. 5002 and as interpreted by reference to LSA-C.C.P. art. 4905 means "mailing or delivering" notice to counsel of record, when the party entitled to notice has counsel of record, we find that the ten day appeal delay set forth in article 5002 governs the appeal delays of Parish Court judgments even where notice of judgment is mailed to counsel of record. Because the more specific rules governing procedure in Parish Court preempt the application of the more general rules of appellate procedure found in Book III, Title 1, we reject Reliance's argument that the 30-day delay period provided in LSA-C.C.P. art. 2123 governs the timeliness of the appeal from the August 13, 1996 judgment of the Ascension Parish Court.
A statute which distinctly covers a particular subject takes precedence over general law. Horil v. Scheinhorn, 95-0967, p. 3 (La. 11/27/95); 663 So.2d 697, 699.
Proof of Service of Notice of Judgment
The final argument Reliance asserts is that LSA-C.C.P. art. 5002 requires conclusive proof of the date of service of notice of judgment in the record for a court to impose the 10-day appeal delay. We agree generally that article 5002 does contemplate some manner of proof establishing the date of receipt of notice of judgment. However, we reject Reliance's contention that the only conclusive proof of receipt of notice of judgment is by a return of service filed in the record or by certified or registered mail receipts filed in the record.
Although it is unclear in appellant's brief whether this argument is asserted as to the appeal of the amended judgment or as to the appeal of the original judgement, we find that sufficient proof was presented at the evidentiary hearing on remand of this case to establish the date of receipt of notice of the original judgment by appellant's counsel. Counsel for Reliance admitted in the June 10, 1997 hearing that his office had received notice, at the very latest, by August 19, 1996.
In summary, we hold that where the party entitled to notice is represented by counsel of record, the 10-day appeal delay applies to appeals taken from parish court even when counsel has been mailed notice of judgment pursuant to LSA-C.C.P. art. 4905, and that admission by counsel of record of receipt of notice of judgment mailed pursuant to LSA-C.C.P. art. 4905 is sufficient proof of date of receipt of notice for a court to calculate and impose the appeal delay.
At the June 10, 1997 hearing, counsel for Reliance admitted having received notice of the August 13, 1996 judgment on August 19, 1996. Reliance did not file a petition to appeal the August 13, 1996 judgment until September 12, 1996. As the trial court properly found, the petition to appeal the August 13, 1996 judgment was filed more than 10 days from counsel's receipt of notice of judgment on August 19, 1996. Therefore, we affirm the trial court's ruling and reject the appeal from the original judgment as untimely.
Although appellant briefed numerous other issues, including the alleged nullity of the judgments rendered by the trial court, these issues are not before us absent a timely appeal. Nevertheless, we note that a petition for nullity has been filed in the case and has been appealed in a companion case, also decided this same day. Hanna v. Homestead Insurance Co., No. 98-CA-1455.
Answers to Appeal
Hanna, Babin, the Homestead Group and Martinez have all answered Reliance's appeal seeking damages and attorney fees pursuant to LSA-C.C.P. art. 2164, contending in brief and at oral argument that the appeal by Reliance is frivolous and was interposed to cause delay and additional cost of litigation.
Even when an appeal lacks serious merit, damages for frivolous appeal are allowed only when it is obvious that the appeal was taken solely for delay or that counsel is not sincere in the view of the law he advocates. LSA-C.C.P. art. 2164;Woodrow Wilson Construction Company, Inc. v. MMR-Radon Constructors, Inc., 96-0618, p. 5 (La.App. 1st Cir. 12/20/96); 684 So.2d 1125, 1128, writ denied, 97-0152 (La. 3/7/97); 689 So.2d 1379. There is nothing in the record before us to indicate that this appeal, while lacking merit, was taken solely for the purposes of delay or of needlessly increasing the cost of litigation. Accordingly, we are unable to find this is an instance where damages and attorney fees for frivolous appeal may be assessed.
CONCLUSION
For the reasons assigned, we affirm the trial court's finding that the appeal of the original judgment was untimely an(f dismiss the appeal. The answers to appeal are denied. All costs are assessed against appellant, Reliance Insurance Company.
APPEAL DISMISSED; AND ANSWERS TO APPEAL DENIED.