Opinion
NO. 23-C-588
03-13-2024
Courtney PARKER v. The STATE of Louisiana, THROUGH the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Robert Alford
COUNSEL FOR PLAINTIFF/RESPONDENT, COURTNEY PARKER, Craig S. Leydecker, Metairie, Ellen B. Thornton, Frank G. DeSalvo, Jr., New Orleans, Andrea B Remy COUNSEL FOR DEFENDANT/RELATOR, THE STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND ROBERT ALFORD, Jeffrey M. Landry, Jeannie C. Prudhomme, Lafayette, Paige M. Dominick
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTYFOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 790-296, DIVISION "E", HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/RESPONDENT, COURTNEY PARKER, Craig S. Leydecker, Metairie, Ellen B. Thornton, Frank G. DeSalvo, Jr., New Orleans, Andrea B Remy
COUNSEL FOR DEFENDANT/RELATOR, THE STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND ROBERT ALFORD, Jeffrey M. Landry, Jeannie C. Prudhomme, Lafayette, Paige M. Dominick
Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and John J. Molaison, Jr.
WINDHORST, J.
1Defendants, State of Louisiana, through the Department of Transportation and Development ("DOTD") and its employee, Robert Alford ("Alford"), seek supervisory review of the trial court’s November 14, 2023 judgment, denying their second motion for leave to file amended answer and affirmative defenses. For the following reasons, we find no error in the trial court’s ruling.
PROCEDURAL BACKGROUND
On June 15, 2018, plaintiff-respondent, Courtney Parker, filed a petition for damages against DOTD and Alford, seeking compensatory damages resulting from a June 21, 2017 automobile accident in which Alford, driving a DOTD-owned vehicle, rear-ended her. On August 18, 2019, defendants answered plaintiff's petition and asserted multiple exceptions. Soon thereafter, on October 29, 2019, plaintiff filed a first supplemental and amended petition or damages. On July 29, 2020, defendants filed an answer to plaintiff's first supplemental petition re-asserting the same answers, exceptions, and affirmative defenses pled in their answer to plaintiff's original petition.
On January 4, 2023, defendants filed a motion for leave to file an amended answer and affirmative defenses ("first motion for leave"), seeking to amend their answer to assert the affirmative defense of immunity based on La. R.S. 29:735. Defendants stated in their motion that the parties would not be prejudiced by allowing defendants to amend their answer and affirmative defenses. The trial court granted defendants’ motion for leave to file their amended answer and affirmative defenses on January 11, 2023 without a hearing. On April 19, 2023, defendants filed a motion for summary judgment, seeking dismissal of plaintiff’s claim based on the immunity defense in La. R.S. 29:735.
Subsequently, on May 22, 2023, plaintiff moved to strike defendants’ amended answer and affirmative defenses, asserting that (1) defendants failed to file 2a rule to show cause and set for hearing their first motion for leave, thereby preventing plaintiff from having an opportunity to be heard; (2) defendants’ motion for leave was improperly heard ex parte because they were not clearly entitled to amend; and (3) plaintiff would suffer undue prejudice due to defendants’ delay in asserting the statutory immunity defense after the conclusion of discovery with trial set to begin in October 2023. After a July 13, 2023 hearing, the trial court granted plaintiffs’ motion to strike and ordered defendants to re-amend their answer and request a contradictory hearing by written judgment dated July 25, 2023.
Thereafter, on August 4, 2023, defendants filed a second motion for leave to file amended answer and affirmative defenses ("second motion for leave") and a rule to show cause, in which it requested leave to file an amended answer and had it set for hearing. In its motion, defendants asserted that the amended answer was timely in that the deadline for filing their amended answer was August 24, 2023, that plaintiff had seven months to conduct discovery before trial, and that plaintiff would not suffer undue prejudice.
Plaintiff opposed defendants’ second motion for leave, arguing that defendants had no good faith reason to justify their delay of five years in asserting the statutory immunity defense. Plaintiff also asserted that the defendants acted in bad faith by intentionally failing to assert this affirmative defense until mere months before trial that defendants have asserted it now as a delay tactic, and that plaintiff would be prejudiced by the late assertion of this affirmative defense.
After a hearing, the trial court denied defendants’ second motion for leave on October 25, 2023 and granted plaintiff’s motion to strike. A written judgment was rendered on November 14, 2023.
On October 26, 2023, defendants filed a motion for written reasons because the trial court did not give any oral reasons for his ruling at the hearing. To date, the trial court has not issued any written reasons.
3A January 4, 2023 pre-trial notice indicates that trial was scheduled for October 23, 2023; that all discovery had to be completed 30 days prior to trial; and that all amended pleadings had to be filed no later than 60 days prior to trial.
LAW and ANALYSIS
[1–5] The immunity defense pursuant to La. R.S. 29:735 is an affirmative defense. Fortner v. Lewis, 2018-638 (La. App. 3 Cir. 2/27/19), 266 So.3d 552, 554. Immunity statutes are strictly construed against the party claiming the immunity. Banks v. Par. of Jefferson, 08-27 (La. App. 5 Cir. 6/19/08), 990 So.2d 26, writ denied, 08-1625 (La. 10/24/08), 992 So.2d 1043. "An affirmative defense raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff’s demand on its merits." Webster v. Rushing, 316 So.2d 111, 114 (La. 1975). The defendant’s answer shall set forth all affirmative defenses. La. C.C.P. arts. 1003 and 1005. "In the absence of inclusion of an affirmative defense in the answer, evidence can be adduced thereon only in the absence of an objection thereto." Rogers v. State, ex rel. Dep’t of Pub. Safety & Corr., 07-1060 (La. App. 3 Cir. 1/30/08), 974 So.2d 919, 922, writ denied, 08-0504 (La. 4/25/08), 978 So.2d 367. In Louisiana, immunity is an affirmative defense that must be pleaded by a defendant, and it is susceptible of being waived. Boudreaux v. State, Dep’t of Transp. & Dev., 01-1329 (La. 2/26/02), 815 So.2d 7, 12.
[6, 7] Pursuant to La. C.C.P. art. 1151, a defendant may amend his answer once without leave of court at any time within ten days after it has been served. The decision as to whether to grant leave to amend or supplement a pleading is within sound discretion of the trial court, and its ruling will not be disturbed on appeal, except where an abuse of discretion has occurred and indicates a possibility of resulting injustice. Graci v. Gasper John Palazzo, Jr., L.L.C., 09-347 (La. App. 5 Cir. 12/29/09), 30 So.3d 915, 919, writ denied, 10-248 (La. 4/9/10), 31 So.3d 394. 4Amendments should be permitted if: 1) the movant is acting in good faith; 2) the amendment is not being used as a delay tactic; 3) the opponent will not be unduly prejudiced; and 4) the trial will not be unduly delayed. Stein v. City of Gretna, 17-554 (La. App. 5 Cir. 5/30/18), 250 So.3d 330, 340.
[8] The policy behind the requirement that affirmative defenses be raised in an answer is to prevent "trial by ambush" that unfairly aids the defendant, Who knew about a defense even though plaintiff was kept in ignorance of the defense. Koonce v. St. Paul Fire & Marine Ins. Co., 15-31 (La. App. 3 Cir. 8/5/15), 172 So.3d 1101, 1109-10, writ denied, 05-1950 (La. 11/30/15), 184 So.3d 36; Patterson v. State, 95-1668 (La. App. 3 Cir. 12/11/96), 685 So.2d 473, writs denied, 97-27, 97-108 (La. 2/21/97), 688 So.2d 513. Because affirmative defenses raise matters for judicial resolution outside of issues raised by plaintiff’s petition, plaintiff must be made aware of these matters at an early stage so that plaintiff can prepare an opposition to the defense and adjust his case, if necessary, in light of the new facts and issues raised by the affirmative defense.
[9] Defendants attempted to amend their answer to assert statutory immunity four and one-half years into the litigation. Defendants claim that this immunity defense applies because Alford was engaged in emergency preparedness on the day of accident due to the threat of Tropical Storm Cindy. Defendants allegedly learned that Alford was potentially involved in emergency preparedness when Alford’s deposition was taken on September 1, 2020. During his deposition, Alford stated that the accident occurred on the same day as Tropical Storm Cindy. He stated that he was checking road conditions in the Bayou Gauche area as he had the autonomy to check road conditions anytime in the district. He stated that he did not "believe it was declared a state of emergency at the time." Given that these facts were elicited from Alford during his September 1,. 2020 deposition, defendants had knowledge of 5facts at this time to make them aware of a potential affirmative defense based on immunity.
Despite their knowledge in September 2020, defendants waited until January 4, 2023 to file their first motion for leave to amend their answer and assert this affirmative defense. Not only did defendants wait approximately two and a half years to assert this defense, defendants moved to assert this at the same time as the parties were scheduling a trial date. Coincidentally, the January 4, 2023 pre-trial notice indicates that defendants were moving to amend their answer and assert this defense on the same day as the parties were scheduling trial. Defendants provide no explanation regarding their delay in asserting the immunity defense.
We also recognize that defendants’ actions during the course of this litigation suggest that defendants have engaged in dilatory tactics throughout this case. Plaintiff filed her original petition on June 15, 2018, and defendants did not answer until more than one year later on August 19, 2019. In addition, plaintiff filed her first amended petition on October 24, 2019, and defendants did not answer until nine months later on July 29, 2020.
[10] Further, our review of the application and attachments thereto indicates that plaintiff would be unduly prejudiced by allowing defendants to amend their answer and assert an immunity defense at this point in the litigation. Over the past five years of litigation, plaintiff has expended a substantial amount of time and money on discovery, including numerous depositions. If defendants were permitted to amend their answer at this point, trial, which was scheduled for October 23, 2023, would have to be continued further to allow for additional discovery.
Louisiana courts have denied a party’s motion for leave to amend a pleading when filed late in the litigation. Glover v. Shiflett Transport Services, Inc., et al, 97-2787 (La. App. 4 Cir. 5/6/1998) 718 So.2d 436, 439 (denial of leave to amend plaintiff’s petition was proper when amended petition was filed more than seven 6years after the accident and plaintiff knew or should have discovered the information upon which the amendment was based); Stockstill v. C.F Industries, Inc., 94-2072 (La. App. 1 Cir. 12/15/95), 665 So.2d 802, 810 (trial court’s refusal to allow defendants to amend answer two and a half after its original answer and 19 days before trial was not an abuse of discretion).
CONCLUSION
For the reasons stated above, we find no abuse of discretion by the trial court. We therefore find no error in the trial court’s November 14, 2023 judgment denying defendants’ second motion for leave to file amended answer and affirmative defenses.
AFFIRMED