Marnie Sobkowich VS Michelle Wilkerson
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NOT DESIGNATED FOR PUBLICATION TATE S OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT J 2013 CA 0414 0 Q MARNIE SOBKOWICH 5r VERSUS MICHELLE WILKERSON Judgment Rendered NOV 0 1 2013 Appealed from the 22 Judicial District Court In and for the Parish of St Tammany Louisiana Trial Court Number 2010 13272 Honorable Allison H Penzato Judge Scott G Jones Lawrence J Boasso Attorneys for Appellant Defendant Michelle Wilkerson Matthew J Guy Mandeville LA Craig P Hart Tammy L Karas Covington LA Attorneys for Appellee Plaintiff Marnie Sobkowich BEFORE WHIPPLE C WELCH AND CRAIN JJ J WELCH J Michelle Wilkerson defendant appeal a judgment awarding damages in s this personal injury lawsuit to plaintiff Marnie Sobkowich We affirm TI BEICKGROU On September 10 2009 an altercat occurred between Marnie and on Michelle who are sisters during which 1 struck Marnie in the face As a licnelle result Marnie sustained a fractured nose requiring surgery and a laceration to her nose requiring six stitches On May 18 2010 she filed this lawsuit against Michelle seeking to recover damages arising from the incident Marnie claimed that her sister committed a battery upon her by intentionally striking her in the face with a closed fist Michelle admitted striking Marnie but claimed that Marnie was at fault in provoking the incident that her sister took a swing at her and struck her in the arm and that she acted in self defense A bench trial was held during which Marnie and Michelle testified The record reflects that on the day in question Mamie and Michelle were at a home owned by Michelle and rented by their mother Marlene when an argument over the payment of the mortgage note on the home ensued between Michelle and Marlene Michelle who admitted that she was angry at the time and had a heated discussion with her mother walked out of the home with her 4 son old year Marnie exited the home soon thereafter The parties gave differing accounts of the events that transpired after they walked out of the home Marnie claimed that she went outside to retrieve the mortgage note that Michelle and her mother had fought over from Michelle so that she could pay it According to Marnie when she exited the home Michelle had already put her son in her vehicle and was walking back toward her Marnie testified that she told Michelle to give her the note and she would pay it she took the note from Michelle and Michelle punched her in the face 2 However Michelle testified that she was putting her son in his car seat when Marnie who was yelling came up behind her Michelle stated that she was pinned up against a car and a mailbox had no where to go and her son was crying Michelle testified that she was startled and rthat Marnie hit her although she admitted she was not sure if Marnie went to grab the mortgage note from her At that point Michelle tried to push Mamie away Michelle insisted that she struck Marnie in the nose with an open hand while trying to push her away and that at no time did she punch her sister with a closed fist The trial court issued written reasons for judgment in which it made the following findings of fact 1 Michelle intentionally struck Marnie and the contact was without Marnie sconsent 2 the evidence did not establish that there was an actual or reasonably apparent threat to Michelle ssafety and therefare the defense self doctrine did not apply and 3 Marnie intentionally came into contact with Michelle by at a minimum hitting her arm to take the mortgage note from her In light of these factual findings the court concluded that the actions of both Marnie and Michelle were intentional and found both equally at fault in causing s Marnie injuries The court entered judgment finding that Marnie suffered damages totaling 33 which it reduced to 16 after applying the 28 422 14 711 percentage of fault attributable to Marnie Michelle filed a motion for a new trial for a judgment notwithstanding the verdict and far remittitur She asked the court to issue a new judgment finding that Marnie was guilty of a greater pereentage of fault because Marnie was the aggressor The trial court denied the motion In this appeal Michelle contends that the trial court erred in rendering judgment against her as it was not established by a preponderance of the evidence that she committed an intentional battery on Mamie She insists that the evidence established that Marnie provoked the confrontation and thereby consented to the 3 altercation Although Michelle acknowledges in brief that there is a dispute in the version of the facts offered by the parties she contends that the record shows that she attempted to extricate herself from the argument to avoid any confrontation and that Marnie acti in pursuing her and grabbing for the mortgage note were s ns the sole cause of the altercation and esulting c tam2ges The trial court factual s determinations that Michelle did inflict an intentional battery upon her sister and that Michelle did not act in self are defense governed by the manifest error standard of review Under that standard ofreview this court may not set aside the trial court findings unless we determine that there s is no reasonable factual basis for the findings and the findings are clearly wrong Stobart v State Department of Transportation and Development 617 So 2d 880 882 La 1993 If the findings are reasanable in light of the record as a whole this court may not reverse even if canvinced that had it been sitting as the trier of fact it would have weighed the evidence differently Rosell v ESCO 549 2d So 840 844 La 1989 When as here the factual findings are based on the credibility of witnesses the fact finder decision to credit a witness testimony s s must be given great deference by the appellaYe court Id We have thoroughly reviewed the record and find the trial court s conclusions that Michelle committed an intentional battery upon her sister and that she did not act in self defense are reasonably supported therein We find no manifest errar in the trial court fault determination therefore we may not disturb s that ruling Although Marnie suggests in her appellee brief that the court should have found Michelle to be 100 at fault she did not file an answer to the appeal An appellee who seeks to have a judgment modified revised or reversed in part on appeal must file an answer in accordance with La C art 2133 P s Maznie failure to answer the appeal precludes this court from consideration of addressing the trial court allocation of 50 fault to her See Matthews v s Consolidated Companies Inc 95 La 12 664 So 1191 1925 95 8 2d 4 CONCLUSION For the foregoing reasons the judgment appealed from is affirmed All costs of this appeal are assessed to appellant Michelle Wilkerson AFFIRMED 5
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