Opinion
2023-CA-0480 2023-CA-0481
05-08-2024
ANTHONY T. STRAUGHTER, DERON ALEXANDER AND RUSSELL BICKHAM v. OCCIDENTAL FIRE & CASUALTY COMPANY OF NORTH CAROLINA, THE TRINITY SYSTEM INC., AND AARON MATTHEW WHITE DE'MYRON ALEXANDER v. WILSHIRE INSURANCE COMPANY AND MATTHEW
Lawrence Blake Jones Julie Marie Sumrall David C. Whitmore BLAKE JONES LAW FIRM, L.L.C. COUNSEL FOR PLAINTIFFS/APPELLEES. Jeffrey E. Richardson Kyle L. Potts ADAMS AND REESE, LLP Raymond C. Lewis John Jerry Glas Joseph L. McReynolds Justine M. Ware DEUTSCH KERRIGAN, LLP Richard E. King Matthew T. Biggers MELCHIODE MARKS KING, LLC COUNSEL FOR DEFENDANTS/APPELLANTS.
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-03996 C\W 2019-07181, DIVISION "A" Honorable Ellen M Hazeur, Judge
Lawrence Blake Jones Julie Marie Sumrall David C. Whitmore BLAKE JONES LAW FIRM, L.L.C. COUNSEL FOR PLAINTIFFS/APPELLEES.
Jeffrey E. Richardson Kyle L. Potts ADAMS AND REESE, LLP Raymond C. Lewis John Jerry Glas Joseph L. McReynolds Justine M. Ware DEUTSCH KERRIGAN, LLP Richard E. King Matthew T. Biggers MELCHIODE MARKS KING, LLC COUNSEL FOR DEFENDANTS/APPELLANTS.
(Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge Karen K. Herman)
Karen K. Herman Judge.
Defendant-Appellants, Wilshire Insurance Company, the Trinity System Inc., and Aaron White, appeal the trial court's judgment, which adopted the jury's verdict for Plaintiffs-Appellees, Anthony T. Straughter, Deron Alexander (collectively "Plaintiffs"), in the amount of $985,000.00 and in the amount of $2,390,000.00, respectively. For the following reasons, we find that the trial court abused its discretion in denying the motion to continue trial. Accordingly, we reverse the trial court's ruling on the motion to continue, vacate the trial court's judgment, and remand with instructions that the trial court stay any further proceedings pending disposition of the forthcoming appeal.
The forthcoming appeal arises out of the petition to annul that was filed concurrently with the motion to continue that is subject of the instant appeal.
FACTUAL AND PROCEDURAL BACKGROUND
This suit arises from a collision that occurred on July 17, 2018 between a car and an 18-wheeler truck. Anthony T. Straughter ("Straughter") was operating a 2008 Ford Mustang carrying passengers, Deron Alexander ("Alexander"), Russel Bickham, and De'Myron Alexander, when a 2009 International Prostar tractor- trailer owned by the Trinity System Inc. ("Trinity"), and driven by its employee, Aaron M. White ("White"), struck the passenger side of the vehicle.
As a result of injuries allegedly sustained, on April 12, 2019, Straughter, Alexander, and Russel Bickham filed suit against White, Trinity, and its insurer, Wilshire Insurance Company (collectively, "Defendants"), alleging White was in the course and scope of his employment at the time of the accident. De'Myron Alexander filed a separate petition for damages against Defendants. Both matters were consolidated. Russell Bickham and De'Myron Alexander settled their claims prior trial.
On January 16, 2023, Plaintiffs filed a motion for partial summary judgment on issues of liability and course and scope of employment and a motion in limine to exclude Defendants' facts and expert witnesses and exhibits, with the exception of Dr. Everett Robert. Defendants did not oppose the motions and in February 2023, the parties entered into consent judgments.
The jury trial was scheduled to begin on March 27, 2023 on damages. However, on or about March 13, 2023, Defendants alleged that they discovered evidence of fraud and/or ill practices.
Thereafter, on March 21, 2023, Defendants filed a motion to continue trial and a petition to annul the two consent judgments. In the motion to continue, Defendants contended that they had learned that Plaintiffs concealed telephone numbers that they had at the time of accident and that telephone records that had recently been obtained showed that Plaintiffs were in contact with Cornelius Garrison ("Garrison"), "an indicted conspirator in over 50 staged accidents." Defendants alleged that proceeding with trial would allow Plaintiffs to commit fraud and profit from a scheme to defraud by staging the subject accident.
On March 14, 2023, Defendants moved to set an emergency status conference, claiming that they recently received important information which could change the outcome of the case. Defendants contend that the trial court had ignored its request for status conference. However, Plaintiffs allege that the trial court denied the motion to continue trial at the status conference on March 23, 2023, and that motion was re-urged and denied prior to trial commencing.
The motion to continue also referred to the allegations more fully set forth in the petition to annul.
The petition to annul contained additional information regarding the indictment and telephone records. The petition provided that the United States Attorney for the Eastern District of Louisiana and the Federal Bureau of Investigation began an investigation of staged motor vehicle accidents that occurred in Orleans Parish, and on September 18, 2020, a federal grand jury indicted Garrison and other individuals on six counts of mail fraud and one count of conspiracy to commit mail fraud involving lawsuits arising from staged motor vehicle accidents. The petition further provided that the telephone numbers identified for Straughter and Alexander appears numerous times on telephone records of Garrison on the date of the subject accident. The petition also stated that the telephone numbers Straughter and Alexander provided in discovery were different than those on the telephone records of Garrison. The numbers that matched the Garrison telephone records were found in the medical records and accident report.
The record shows that the investigation is known as Operation Sideswipe.
Defendants attached the accident report, the indictment of Garrison, Garrison's phone records for July 17, 2018, medical records of Alexander, as well as Plaintiffs' answers to interrogatories, to the petition for annulment.
Plaintiff opposed the motion to continue on March 22, 2023, arguing among other things, that the discovery deadline had passed and that Defendants were aware of the possible fraud prior to March 2023. Specifically, Plaintiffs claimed that in Defendants' May 2021 discovery answers, Defendants noted that the instant suit had similarities with the accidents under investigation by the United States District Attorney for the Eastern District of Louisiana.
In their opposition, Plaintiffs included Defendant's discovery responses.
On March 27, 2023, prior to trial, the trial court denied the motion, stating "Discovery closed in 2021. The motion to continue the trial is denied." The matter proceeded to jury trial and on March 29, 2023, the jury rendered a verdict in favor of Plaintiffs, awarding $985,000.00 to Straughter and $2,390,000.00 to Alexander. The trial court entered a judgment adopting the jury's verdict as the judgment of the court on April 13, 2023. Defendants filed for a suspensive appeal. This appeal follows.
In June 2023, Defendants filed a supplemental and amending petition to annul, wherein it sought to annul the April 13, 2023 judgment. On August 3, 2023, Defendants filed a motion to stay the instant appellate proceedings pending decision on amended petition to annul. On August 9, 2023, this Court denied the motion for stay, reserving Defendants' right to file a motion to stay proceedings in the future, in the event the petition to annul is granted or Plaintiffs become the subject of a criminal investigation. Defendants filed a writ application with the Louisiana Supreme Court, which was denied. See Straughter v. Occidental Fire & Cas. Co. of N. Carolina, 2023-01109, (La. 9/26/23), 370 So.3d 725.
The trial court dismissed Defendants' petition to annul on March 7, 2024. Defendants filed a motion for appeal of that judgment, which the trial court granted on March 21, 2024. See n. 1.
DISCUSSION
Defendants assert five assignment of errors: (1) the trial court abused its discretion under La. C.C.P. art. 1601 in denying the motion to continue trial because there was evidence presented to the trial court that Plaintiffs were about to use the court and jury as an instrumentality of fraud and thus there was good grounds for a continuance; (2) the trial court abused its discretion under La. C.C.P. art 1602 in denying the motion to continue trial as there was discovery of preliminary evidence of fraud, which had been concealed by Plaintiffs and warranted time to investigate the matter further; (3) the jury erred in awarding special damages that were in excess of the evidence of past and future medical expenses; (4) the general damage awards of $1,845,000.00 to Alexander and $665,000.00 to Straughter were excessive; and (5) no judgment can be rendered against an insurer pursuant to a policy that was not introduced into evidence.
However, because we find that the trial court abused its discretion in denying the motion to continue trial under La. C.C.P. art. 1601, we pretermit a discussion on the remaining assignments of error.
Motion to Strike
Prior to addressing the motion to continue, this opinion will first address the motion to strike filed by Plaintiff. After Defendants filed its brief in this Court, Plaintiffs filed a motion to strike on August 25, 2023, claiming that Defendants' brief contains references to facts and issues not included in the record for appeal. Plaintiffs argue that the issues asserted by Defendants in their statement of facts are out of the scope of review of this court and should be stricken pursuant to the Uniform Rules of this Court.
An appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. See La. C.C.P. art. 2164. "The record on this appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments and other rulings, unless otherwise designated." Chaplain v. Dimitri, 2014-1081, p. 5 (La.App. 4 Cir. 8/5/15), 174 So.3d 222, 225 (quoting Bd. of Dir. of the Indus. Dev. Bd. of the City of New Orleans v. All Taxpayers, Prop. Owners, Citizens of the City of New Orleans, 2003-0827, p. 4 (La.App. 4 Cir. 5/29/03), 848 So.2d 733, 737). Further, "[a]ppellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence." Denoux v. Vessel Mgmt. Servs., Inc., 2007-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88.
This Court's opinions are based on our review of the record on appeal and we will not consider any improperly submitted content that is outside the record. Therefore, there is no need to strike any portion of the appellant brief. Accordingly, Plaintiffs' motion to strike is denied.
Motion to Continue Trial
Defendants contend that the trial court erred in denying the motion to continue because there was "good grounds" for continuance under La. C.C.P art. 1601 and because La. C.C.P art. 1602 mandates a continuance when a party has been unable, with the exercise of due diligence, to obtain evidence material to his case.
La. C.C.P. art. 1601 provides discretionary grounds for continuance and states that a "continuance may be granted in any case if there is good ground therefor." La. C.C.P. art. 1602 sets forth mandatory grounds for granting of a continuance and provides:
A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.
"A trial judge has wide discretion in determining whether a motion for continuance should be granted; thus, the standard of review in such cases is abuse of discretion." Doe v. Lewis, 2020-0320, p. 3 (La.App. 4 Cir. 12/30/20), 312 So.3d 1165, 1169 (citing Jordan v. Cmty. Care Hosp., 2019-0039, 2019-0040, pp. 22-23 (La.App. 4 Cir. 7/24/19), 276 So.3d 564, 582).
The trial court must weigh the particular facts of each case in deciding whether or not to grant a continuance, considering factors such as diligence, good faith, and reasonable grounds. Succession of Feingerts, 2017-0265, pp. 3-4 (La.App. 4 Cir. 12/21/17), 234 So.3d 1081, 1085 (citing Howard v. Lee, 50,366, p. 7 (La.App. 2 Cir. 1/13/16), 185 So.3d 144, 149). Other factors for the trial court to consider include: the opponent's right to have his case heard as soon as practicable, fairness to both parties, and the need for the orderly administration of justice. See Allen v. Blind Pelican, 2017-0833, p. 3 (La.App. 4 Cir. 3/14/18), 239 So.3d 376, 378 (citing Rogers v. Hilltop Ret. &Rehab. Ctr., 2013-867, p. 4 (La.App. 3 Cir. 2/12/14), 153 So.3d 1053, 1058); Davis v. Mayberry, 2000-1266, p. 7 (La.App. 4 Cir. 11/28/01), 802 So.2d 974, 978 (citing Gilcrease v. Bacarisse, 26,318 (La.App. 2d Cir. 12/7/94), 647 So.2d 1219, 1221). "As in the trial court, an appellate review of such a determination requires consideration of the particular facts and circumstances of each case." Davis, 2000-1266, p. 7, 802 So.2d at 978 (citing Bd. of Supervisors of LSU v. Holt, 572 So.2d 759, 761 (La.App. 4th Cir.1990).
The Louisiana Supreme Court in Sauce v. Bussell, 298 So.2d 832, 834 (La. 1974), while recognizing the discretion vested with the trial court in deciding a motion to continue, cautioned that "it has never been held that such discretion is absolute or that it may be exercised arbitrarily." It further stated that appellate courts are "vested with the right and duty to correct such errors by the trial judge in matters of this kind." Id. "However, it should be pointed out that appellate courts only interfere in such matters with reluctance and in what are considered extreme cases." Id.; See also Wilkerson v. Darden Direct Distribution, Inc., 53,263, p. 13 (La.App. 2 Cir. 3/4/20), 293 So.3d 146, 154.
We find that the possibility of fraud being perpetrated on the judicial system warrants this Court's inference with the trial court's discretion and constitutes good cause for a continuance under La. C.C.P. art. 1601. The record shows that Garrison was an indicted conspirator in 50 staged motor vehicle accidents with 18-wheelers and the telephone records show that Plaintiffs had placed or received approximately 30 calls to and from Garrison on the day of the accident, both before and after the collision. The evidence thus suggests the real possibility of fraud, similar to the cases investigated by U.S. Attorney's Office. Nevertheless, the trial court permitted the trial to proceed and the jury ultimately rendered a verdict of over 3 million dollars in damages. We find the trial court abused its discretion in refusing to grant a continuance of the trial to allow Defendants to investigate the matter further. Moreover, the record shows that there were no prior continuances of the trial date in this case. Accordingly, the trial court erred in denying Defendants' motion to continue trial.
CONCLUSION
For the above stated reasons, we find that the trial court abused its discretion in denying the motion to continue trial. Accordingly, we reverse the trial court's ruling on the motion to continue, vacate the trial court's judgment, and remand with instructions that the trial court stay any further proceedings pending disposition of the forthcoming appeal.
REVERSED, JUDGMENT VACATED, AND REMANDED WITH INSTRUCTIONS.
JENKINS, J., DISSENTS WITH REASONS
A trial judge is intimately familiar with the record in cases over which she presides. The trial judge competently managed her docket, and specifically this case, by entering a scheduling order inclusive of discovery deadlines. Per the court's June 25, 2021 scheduling order, it was ordered that "all discovery must be completed by May 31, 2022," 300 days prior to the March 27, 2023 trial in this matter. Yet on March 21, 2023, Defendants-Appellants made a desperate attempt to acquire more time to prepare for trial by filing a motion to continue trial based on the possibility of newly found evidence, fraud and ill-practices by Plaintiffs-Appellees.
There are differing opinions between the parties as to when the trial court first considered and ruled on the motion to continue trial. My review of the record reveals only one hearing and no written judgments ruling on Defendants-Appellants' motion to continue trial.
The Plaintiffs-Appellees' brief reference the motion to continue was heard and denied during the March 23, 2023 status conference. However, Defendants-Appellants' brief provides that the trial judge did not attend the status conference, and the parties were informed that the motion to continue would be ruled upon on the morning of trial. The March 27, 2023 trial transcript reflects that the motion to continue trial was heard by the trial judge and was orally denied prior to the commencement of trial.
Great deference is afforded to the trial judge in making pre-trial rulings, particularly a motion to continue trial. Of course, the discretion vested with the trial court to decide a motion to continue is not absolute nor may that discretion be exercised arbitrarily. Sauce v. Bussell, 298 So.2d 832, 834 (La. 1974). The reviewing court, may disturb that ruling in instances of extreme cases. Wilkerson v. Darden Direct Distribution, Inc., 53,263, p. 13 (La.App. 2 Cir. 3/4/20), 293 So.3d 146, 154. No extreme case exist here. This is not an instance whereby this Court should disturb the ruling of the trial court's denial of a motion to continue trial. Defendants-Appellants' motion to continue is a failed attempt to reopen discovery by alleging newly found information. I do not agree with the majority's conclusion that the trial court's denial of the motion to continue trial was an abuse of discretion which warrants reversal of the ruling.
Diligence, Good Faith, and Reasonable Grounds
"A trial judge has wide discretion in determining whether a motion for continuance should be granted." Doe v. Lewis, 2020-0320, p. 3 (La.App. 4 Cir. 12/30/20), 312 So.3d 1165, 1169. Defendants-Appellants contend that evidence of fraud was produced to the trial court, thus, the trial court should have continued the trial date, re-open discovery on the issue of how the accident was caused, and vacate the February 28, 2023 consent judgments.
To discern whether the trial court abused its discretion in the denial of a motion to continue, we must examine the factors a trial court must consider. The trial court must weigh particular facts of a case and consider factors such as diligence, good faith, and reasonable grounds. Succession of Feingerts, 2017-0265, pp. 3-4 (La.App. 4 Cir. 12/21/17), 234 So.3d 1081, 1085 (citing Howard v. Lee, 50,366, p. 7 (La.App. 2 Cir. 1/13/16), 185 So.3d 144, 149).
The record is void of acts of diligence, good faith or reasonable grounds by the Appellants-Defendants to garner a grant of a motion to continue trial. An example of Defendants-Appellants' lack of diligence to defend this case is their pre-trial practice. The record reflects that Plaintiffs-Appellees moved for a partial summary judgment on the issues of liability and course and scope of employment and a motion in limine to exclude Defendants-Appellants' fact and expert witnesses and exhibits, in which Defendants-Appellants failed to oppose any of the motions. Ultimately, Defendants-Appellants agreed to consent judgments. Defendants-Appellants' failure to oppose the motion for summary judgment shows little to no act of good faith or diligence.
The Motion to Continue
Trial was scheduled, and commenced, March 27, 2023. On March 21, 2023, Defendants-Appellants moved the court to continue trial. Of the eleven paragraphs in their motion to continue trial, paragraph ten alleges with specificity the reason to continue trial. In paragraph ten, Defendants-Appellants aver the trial should be continued to "pursue the nullity action concerning the Consent Judgment, which was obtained by the fraud and/or ill practices of Straughter and Deron Alexander." In paragraph one, Defendants-Appellants alleged they first became aware of fraud and/or ill practices on March 13, 2023. The paragraph ends by instructing the court that the grounds for annulment are more fully developed in their Petition to Annul Judgments filed on the same date.
Fraud is an Affirmative Defense
Defendants-Appellants waived their opportunity to plead fraud. Fraud is an affirmative defense which must be pled in the answer. La. C.C.P. art. 1005 provides in pertinent part "[t]he answer shall set forth affirmatively negligence, or fault of the plaintiff and others . . . fraud, illegality . . . and any other matter constituting an affirmative defense." "The purpose of requiring affirmative defenses to be pled in the answer is to give fair notice to the plaintiff and avoid trial by ambush." Fin &Feather, LLC v. Plaquemines Par. Gov't, 2016-0256, p. 8 (La.App. 4 Cir. 9/28/16), 202 So.3d 1028, 1034.
Here, the record demonstrates that Defendants-Appellants failed to plead fraud as an affirmative defense, although in February 2021, Defendants-Appellants, through discovery responses, alluded to similarities between Plaintiffs-Appellees' accident and the pending investigation of staged motor vehicle accidents in the United States Attorney's office for the Eastern District of Louisiana.
Based on the acts and inactions of Defendants-Appellants in support of their motion to continue trial, I do not find that the discretionary grounds for continuance pursuant to La. C.C.P. art. 1601 nor the mandatory grounds for continuance pursuant to La. C.C.P. art. 1602 exist in this case. I do not find that the trial court's exercise of discretion was an abuse. Further, there is nothing in the record that points to the trial court acting in an arbitrary manner in reaching her ruling to deny the motion for continuance. Based on what was presented during the brief exchange between the court and counsel for Defendants-Appellants the morning of trial, I find the trial courts denial was based on law, sound logic and reason as to why the Defendant-Appellants were not entitled to a continuance of trial.
That said, the majority opinion goes into great detail as to the content and allegations in Defendants-Appellants' petition to annul the consent judgments. It is acknowledged by the Court that Defendants-Appellants' motion to continue referenced the petition to annul consent judgment.
A petition to annul must be brought in the same court that issued the judgment and the decision to annul a judgment lies within the discretion of the trial court. Mosing v. Miller, 2020-632, p. 4 (La.App. 3 Cir. 12/8/21), 332 So.3d 724, 728 (citing Wright v. La. Power & Light, 2006-1181 (La. 3/9/07), 951 So.2d 1058); See La. C.C.P. art. 2004.
Consideration of the Petition to Annul Judgment has no place in this appeal. Counsel, nor the trial court addressed the merits of the Petition for Annulment the morning of trial. More importantly, Counsel for Defendants-Appellants did not petition the court to introduce into evidence the petition for annulment nor any exhibits attached to the petition for annulment as a part of their motion to continue trial. The narrow issue of this appeal, in light of the majority pretermitting review and discussion of the remaining four assignments of error, is whether the trial court abused its discretion by denying Defendants-Appellants' motion to continue trial.
The March 27, 2023 transcript illustrates Defendants-Appellants did not introduce any evidence to substantiate their claim that they are entitled to the continuance under the law. The only pleading the record reflects that was before the court as it relates to the motion to continue trial was the motion. Not even a memorandum in support of their motion to continue trial accompanied the motion. The entirety of Defendants-Appellants' argument in support of their motion to continue trial is as follows:
MR. BIGGERS: Good morning Your Honor. Yes, we filed a motion to continue based on our very recent discovery of some potential evidence that could lead to a nullity of judgment, potential fraud. So we ask for a continuance just so that we could resolve those issues and see if there was anything to them so that we would not waste time and resources going through a trial and potential appeals while we're seeking that....
THE COURT: Okay. Discovery closed in 2021. The motion to continue the trial is denied. Thank you.
It is clear from this exchange, Defendants-Appellants failed to meet their burden to establish their motion to continue trial should be granted.
My final reason as to why the trial court's ruling to deny the motion to continue should not be disturbed is based on this Court's acceptance of the faulty argument that the trial court should rely on and consider arguments based on conjecture and speculation. The majority opinion suggest that the possibility of fraud being perpetrated on the judicial system warrants this Court's inference that there is good cause for a continuance under La. C.C.P. art. 1601. I disagree. "[A]llegations of fraud in this case are, at this point, no more than that: allegations." Straughter v. Occidental Fire &Cas. Co. of N. Carolina, 202301109, p. 1 (La. 9/26/23), 370 So.3d 725 (Weimer, C.J. concurring in writ denial). Speculations as to whether Plaintiffs-Appellees are or will be subjects of a criminal investigation, or the potentiality of a federal indictment is not relevant to the issues this Court is called upon to decide in this appeal.
For the reasons assigned, I respectfully dissent from the majority opinion. I do not find that the trial court abused its discretion in denying the motion to continue trial. I would affirm the trial court's ruling to deny Defendants-Appellants' motion to continue trial.
KKH
DLD
RML
BROWN, J., DISSENTS WITH REASONS
I respectfully dissent from the majority's conclusion. I find that entertaining the instant appeal at this procedural juncture is premature. The basis of the Appellants' motion to continue was predicated on time to render judgment on the Appellants' petition to annul the February 28, 2023 consent judgments. Armed with specific allegations of fraud, the district court arguably abused its discretion by failing to grant the motion to continue. However, as the majority notes, a judgment has now been rendered. In a March 7, 2024 ruling, the district court denied the Appellants' claims of fraud on the basis that the claims were perempted. In the absence of vacating that judgment, there is no utility in granting a continuance. In short, I find the motion to continue is now moot. Furthermore, the March 7, 2024 judgment was timely appealed by the Appellants and will be considered by this Court in due course; thus, the district court has been divested of jurisdiction in that matter and this is where I find the prematurity in this appeal lies. Finally, even assuming that it would be procedurally permissible for the Appellants to file a second petition to annul on the basis of fraud, the one-year peremptive period provided for in La. C.C.P. art. 2004 has now unquestionably lapsed, leaving the Appellants without any meaningful remedy. In the interest of judicial efficiency and preserving the dignity of our judicial system, I would stay this appeal until such time as a disposition has been reached by this Court regarding the March 7, 2024 judgment, which maintained the Appellees' exception of peremption and dismissed the Appellants' petition to annul with prejudice.