Opinion
NO. 2015 CA 1284
06-28-2016
RONALD P. GUSTE HUSBAND OF/AND BETTY ANNE GUSTE v. EARL ALBERT LIRETTE, III PRESIDENT OF/AND TIGER AUDIO, L.L.C. AND EARL ALBERT LIRETTE, JR., AS CORPORATE OFFICER OF TIGER AUDIO, L.L.C.
Steven J. Rando James F. Kreihs Colin J. LaGarde New Orleans, Louisiana Attorneys for Plaintiffs/Appellees, Ronald P. Guste and Betty A. Guste Robert S. Reich Michael T. Wawrzycki Metairie, Louisiana Attorneys for Defendants/Appellants, Earl A. Lirette III and Tiger Audio, L.L.C. Troy A. Broussard Lafayette, Louisiana Attorney for Defendant/Appellee, Montpelier US Insurance Company
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 32nd Judicial District Court, Parish of Terrebonne, State of Louisiana
Trial Court No. 168515
The Honorable John R. Walker, Judge Presiding Steven J. Rando
James F. Kreihs
Colin J. LaGarde
New Orleans, Louisiana Attorneys for Plaintiffs/Appellees,
Ronald P. Guste and Betty A. Guste Robert S. Reich
Michael T. Wawrzycki
Metairie, Louisiana Attorneys for Defendants/Appellants,
Earl A. Lirette III and Tiger Audio,
L.L.C. Troy A. Broussard
Lafayette, Louisiana Attorney for Defendant/Appellee,
Montpelier US Insurance Company BEFORE: PETTIGREW, HIGGINBOTHAM, AND CRAIN, JJ. CRAIN, J.
In this personal injury action, the defendants, Earl A. Lirette III and Tiger Audio, L.L.C, appeal the trial court's August 28, 2014 judgment awarding damages to Ronald and Betty Guste. We vacate the judgment and remand for further proceedings.
The plaintiffs' claims against Earl A. Lirette Jr. were voluntarily dismissed. All references herein are to Earl A. Lirette III.
FACTS AND PROCEDURAL HISTORY
The Gustes instituted this suit against the defendants on December 27, 2012, claiming that on July 7, 2012, Mr. Guste went to Tiger Audio to speak with its owner, Lirette, about unpaid wages owed to the Gustes' grandson. The Gustes claim that when Mr. Guste inquired about the wages, Lirette "came from behind the counter and violently assaulted and battered" Mr. Guste, causing severe injuries including a fractured hip that resulted in permanent damage. The Gustes alleged that Lirette caused the injuries while in the course and scope of his employment, and that both Lirette and Tiger Audio were liable for their damages, including Mrs. Guste's claims for loss of consortium and for damages resulting from witnessing her husband's pain and suffering when she arrived at Tiger Audio.
The parties appeared for a bench trial on June 9, 2014. As a preliminary matter, the Gustes argued that the defendants should be penalized for violating the deadlines set forth in the bench trial order issued by the trial court. The trial court rejected the defendants' counter arguments regarding lack of notice of the order, found that the defendants failed to comply with its provisions, and penalized the defendants by refusing to allow them to call any witnesses or present any defenses. Additionally, the trial court found that the defendants failed to respond to the Gustes' requests for admissions and deemed all of the requests admitted. The bench trial proceeded essentially as a default proceeding, with only the plaintiffs calling witnesses and presenting evidence. Although the defendants were allowed to cross-examine the plaintiffs' witnesses and present argument, they were not allowed to present any evidence, even Lirette's own testimony, except as a proffer.
The trial court took the matter under advisement, then found that Lirette pushed or struck Mr. Guste without justification, which caused Mr. Guste to fall. The trial court determined that Mr. Guste required medical treatment for injuries sustained as a result of the fall, and would require future medical treatment and surgery. Judgment was rendered on August 28, 2014, in favor of the Gustes and against Lirette and Tiger Audio, finding them liable jointly, severally, and in solido, awarding Mr. Guste damages totaling $353,374.94, awarding Mrs. Guste $20,000.00 for loss of consortium, and awarding the Gustes $4,000.00 for expert witness fees and $1,750.09 for court costs. The defendants filed a motion for new trial, which was denied. Lirette and Tiger Audio now appeal.
While the case was under advisement, Lirette and Tiger Audio filed a third-party demand against Montpelier US Insurance Company, alleging that the general liability insurance policy it issued to them provided coverage for any judgment that may be rendered against them in the case. The trial court's judgment on the principal demand ordered that the third-party demand be severed and tried separately. The trial court's November 14, 2014 judgment on the third-party demand is the subject of a related appeal and is addressed in a separate opinion rendered by this court. See Guste v. Lirette, 15-1285 (La. App. 1 Cir. ___/___/16), ___ So. 3d ___.
The original record filed with this court did not include evidence of the facsimile filing of the motion for new trial, which led this court to issue a rule to show cause why this appeal should not be dismissed as untimely. This court then issued an interim order remanding the matter to the trial court for a determination of whether the defendants complied with Louisiana Revised Statute 13:850 with respect to the facsimile filing of the motion for new trial, and supplementation of the appellate record with the results of its determination. After supplementation of the record with the trial court's findings that the defendants did comply with the requirements for facsimile filing, as well as exhibits reflecting the filing, this court maintained the appeal, reserving to this panel a final determination of whether the appeal should be maintained. After considering the supplemented record, we maintain the appeal.
DISCUSSION
Louisiana Code of Civil Procedure article 1551 authorizes the trial court to render pretrial orders that control the subsequent course of the trial and to enforce them. Southern Casings of Louisiana, Inc. v. Houma Avionics, Inc., 00-1930 (La. App. 1 Cir. 9/28/01), 809 So. 2d 1040, 1055. The orderly disposition of each case and the avoidance of surprise are inherent in the theory of pretrial procedure and are sufficient reasons for allowing the trial court to require adherence to the pretrial order in the conduct of an action. Southern Casings of Louisiana, Inc., 809 So. 2d at 1055. The trial court is vested with much discretion to amend its pretrial order and to determine the admissibility of witnesses' testimony based on compliance with established deadlines. See Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. Partnership, 01-2812 (La. App. 1 Cir. 12/30/02), 839 So. 2d ___, 91 writ denied, 03-0306 (La. 4/4/03), 840 So. 2d 1219; Southern Casings of Louisiana, Inc., 809 So. 2d at 1055. While any doubt must be resolved in favor of receiving the information, it is only upon a showing of a gross abuse of discretion that an appellate court will intervene. Palace Properties, L.L.C., 839 So. 2d at 91.
Specifically, with regard to the enforcement of pretrial orders, Article 1551C provides:
If a party's attorney fails to obey a pretrial order, or to appear at the pretrial and scheduling conference, or is substantially unprepared to participate in the conference or fails to participate in good faith, the court, on its own motion or on the motion of a party, after hearing, may make such orders as are just, including orders provided in Article 1471 (2), (3), and (4). In lieu of or in addition to any other sanction, the court may require the party or the attorney representing the party or both to pay the reasonable expenses incurred by noncompliance with this Paragraph, including attorney fees.The orders provided in Louisiana Code of Civil Procedure article 1471 that are incorporated into Article 1551C are:
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
The incorporation of Louisiana Code of Civil Procedure article 1471 into Article 1551 authorizes the "death penalty" of dismissal or judgment by default in appropriate cases of disobedience or disregard for orders pertaining to pretrial procedure. However, such an extreme penalty should be reserved for only the most flagrant case. Benware v. Means, 99-1410 (La. 1/19/00), 752 So. 2d 841, 846. It is generally reserved for those cases in which the client, as well as his attorney, is at fault, and the record must show that the violation was due to willfulness, bad faith, or fault. See Horton v. McCary, 93-2315 (La. 4/11/94), 635 So. 2d 199, 203; Conbeth, Inc. v. Kittock, 12-0089, 2012WL4335411, p.2 (La. App. 1 Cir. 9/21/12). The record must also show that the party was clearly aware that his noncompliance would result in such a penalty. See Prudhomme v. Todd, 10-1132, 2010WL5480319, p.2 (La. App. 1 Cir. 12/22/10).
In imposing penalties for noncompliance with a pretrial order, each case must be decided upon its own facts and circumstances. See Benware, 752 So. 2d at 847. Factors to be considered by courts in reaching a decision include (1) whether the attorney, the client, or both committed the misconduct, (2) the stage of the proceeding at which the violation occurred, (3) the presence or absence of prejudice to the opposing party's preparation of the case, and (4) the nature and persistency of the misconduct that constitutes the violation. Benware, 752 So. 2d at 847.
In this case, as to the first Benware factor, when the pretrial order deadlines were violated, Lirette was representing himself and Tiger Audio had yet to make an appearance.
Although Article 1551C references violations of the pretrial order by the party's attorney, a pro se party is likewise subject to penalties for violations of a pretrial order. See Benware, 752 So. 2d at 848. In Benware, the pro se party was an attorney.
As to the stage of the proceeding at which the violation occurred, the record reflects that the petition for damages was filed December 27, 2012, Lirette's answer was filed January 31, 2013, and the motion and order to set for trial was filed June 9, 2014. Thereafter, the trial court issued its pretrial order, which included deadlines for completing fact discovery (30 days prior to trial), an independent medical or expert examination (120 days prior to trial), delivering reports of experts (90 days prior to trial), filing a request for a Daubert hearing (60 days prior to trial), joining parties and amending pleadings (within 30 days of the bench trial order), filing and setting for hearing exceptions and motions for summary judgment or motions in limine (45 days prior to trial), filing witness and exhibit lists (60 days prior to trial), making exhibits available for viewing by opposing counsel (60 days prior to trial), requesting subpoenas (21 days prior to trial), and filing pretrial memoranda (14 days prior to trial). No pretrial motions or other pleadings were filed. Instead, the matter proceeded to trial, with the plaintiffs requesting the imposition of penalties on the day of trial.
Relative to the third Benware factor, the plaintiffs argued that the defendants violated all of the pretrial order's deadlines and that they would be prejudiced by the trial court granting the defendants' motion for continuance, which was urged on the day of trial. However, the plaintiffs did not establish that they were actually prejudiced due to violations of the pretrial order. In fact, the evidence presented at trial showed that the plaintiffs were not prejudiced in adducing evidence in support of their case.
We find, however, that the fourth Benware factor is most relevant here. The defendants do not dispute that they failed to comply with the deadlines of the pretrial order. Rather, Lirette argued that he did not even receive the pretrial order until after many of the deadlines had passed. The trial court found that Lirette's arguments were not credibile and, despite the fact that notice was not directed to Lirette personally, that Lirette received notice of the deadlines when the sheriff served the pretrial order on an employee of Tiger Audio. Even accepting this as true, at best, it reflects that the violation resulted from the negligence of a party representing himself. Although the law gives a layman representing himself no greater rights than a litigant represented by an attorney, and the layman assumes the responsibility of familiarizing himself with applicable procedural and substantive law and for his lack of knowledge thereof, a layman representing himself cannot be held to the same standards of skill and judgment that must be attributed to an attorney. See Spencer v. Benny's Car Wash, LLC, 11-1708, 2012WL1580601, p.5 (La. App. 1 Cir. 5/4/12); see also Benware, 752 So. 2d at 848 (imposing severe sanctions against an attorney representing himself).
The sanctions of dismissal or default are to be imposed only in "extreme" cases involving "the most culpable conduct" where "there is a gross disregard for the authority and the efficient operation of the court." Benware, 752 So. 2d at 847. The record in this case does not support a finding that this is such an extreme case. Instead, considering the nature of the violation (allowing pretrial deadlines to pass) and the status of the case (where no pretrial motions, including motions to compel were filed), and particularly that one defendant was representing himself and the other had yet to make an appearance, we find that the trial court abused its discretion in imposing the harshest sanctions against the defendants.
Although the trial court allowed the defendants to proffer witness testimony, we find that justice requires that the trial court's August 28, 2014 judgment be vacated and this matter be remanded for proceedings consistent with the views expressed herein. See La. Code Civ. Pro. art. 2164 (the appellate court shall render any judgment that is just, legal, and proper upon the record on appeal). We pretermit consideration of the remaining assignments of error urged by the defendants. The Gustes filed an answer to this appeal challenging a November 14, 2014 judgment of the trial court; however that judgment is not before us in this appeal and therefore the relief requested in the answer to this appeal is denied.
See footnote 2, supra. --------
CONCLUSION
The August 28, 2014 judgment of the trial court is vacated and this matter is remanded for further proceedings. The relief requested in the answer to this appeal is denied. Each party shall bear its own costs of this appeal.
VACATED AND REMANDED; ANSWER TO APPEAL DENIED.