author: TERRI F. LOVE, Judge. BONIN, J.,

text:
    SAFEGUARD STORAGE PROPERTIES, L.L.C., et al. v. DONAHUE FAVRET CONTRACTORS, INC., et al.
    No. 2009-C-0344.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 27, 2009.
    James Garner, Darnell Bludworth, Megan M. Dupuy, Mary Beth Akin, Sher Garner Cahill Richter Klein & Hilbert, L.L.C. New Orleans, Louisiana, for Safeguard Storage Properties, Et Al.

      Robert I. Siegel, Andrew A. Braun, Elizabeth A. Chickering, Geiger, Laborde & Laperouse, LLC, New Orleans, LA, for Lexington Insurance Company and American International Specialty Lines Insurance Company.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

hThis application for supervisory writ was docketed for oral argument pursuant to Rule 4-7 of the Uniform Rules — Courts of Appeal.

After filing for supervisory review, Safeguard filed a motion to supplement the record with newly discovered evidence. “An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence.” Bd. of Dir. of the Indus. Dev. Bd. v. All Taxpayers, Prop. Owners, Citizens of the City of New Orleans, 03-0827, p. 4 (La.App. 4 Cir. 5/29/03), 848 So.2d 733, 737. The Louisiana Supreme Court expressly stated that appellate courts are “prohibited from receiving new evidence.” B.W.S., Jr. v. Livingston Parish Sch. Bd., 06-1981, p. 2 (La.8/16/06), 936 So.2d 181, 182. Accordingly, as the motion seeks to supplement the appellate record with new evidence, Safeguard’s motion is denied and the writ will be determined on the record before us.

Safeguard Storage Properties, L.L.C., et al. (“Safeguard”), seeks supervisory review of the trial court’s judgment granting a motion to disqualify Safeguard’s expert brought on behalf of defendants, Lexington Insurance Company and American International Specialty Lines Insurance Company (collectively, | ¡/‘defendants”).

Defendants filed a motion to disqualify Safeguard’s expert, R. Christian Sonne (“Mr. Sonne”), on the basis that Mr. Sonne possessed confidential defense attorney work-product information. The trial court heard oral argument, conducted an in camera inspection of defense counsel’s handwritten notes, and questioned defense counsel regarding his conversations with Mr. Sonne. The trial court granted the motion to disqualify Mr. Sonne upon the utilization of federal jurisprudence and found that Mr. Sonne “switched sides,” noting that the communications were “protected pursuant to Louisiana Code of Civil Procedure 1425(E)(1).” Safeguard filed a motion for new trial, which the trial court denied.

Safeguard asserts that Mr. Sonne was never retained as an expert because defendants never fulfilled Mr. Sonne’s expressed conditions for retention, i.e. the letter of engagement and retainer. Safeguard further argues that even if Mr. Sonne was retained by defendants, Mr. Sonne was never provided with confidential information. Specifically, Safeguard contends that the documents provided to Mr. Sonne were either documents produced by Safeguard or documents generated in connection with discovery requests propounded to Safeguard.

Louisiana has not - enumerated a bright-line rule for the disqualification of experts and, as such, both the relator and respondent suggest the utilization of federal jurisprudence. However, the Court of Appeal, Second Circuit, State of Louisiana, held that the trial court improperly excluded the testimony of an expert who was previously hired and then dismissed by an adverse party. Dartlone v. Louisiana Power & Light Co., 33,597, p. 12 (La.App. 2 Cir. 6/21/00), 763 So.2d 779, 787. In Dartlone, the expert was retained by the defendant and was released | Rfrom employment prior to trial. Id. The defendant then asserted a conflict of interest prohibiting the expert from testifying on behalf of another party. Id. The court found that the expert’s testimony should not be prohibited and opined that “[a]n expert is not a party or a party’s representative and there is no presumption that an expert is adverse or hostile to anyone.” Id. In the case sub judice, Mr. Sonne was never retained, as his retention letter was never signed and fee never paid. However, according to Dartlone, retention is moot. Dartlone represents that once a party has declined the future services of an expert, another party involved in the litigation is free to retain him for consultation, etc.

Further, the Louisiana Supreme Court held in 1984 that La. C.C.P. art. 1425(2) and 1424 did not create a “privilege against the use of the expert as a witness at trial by the opposing party.” State, Dep’t of Transp. and Dev. v. Stumpf, 458 So.2d 448, 454 (La.1984). In 1984, La. C.C.P. art. 1425(2) provided that:

(2) A party may discover facts known by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Article 1465 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts on the same subject by other means.

La. C.C.P. art. 1425 was revised to widen the scope of discoverable materials from experts and currently reads, in pertinent part:

D. (1) Except as otherwise provided in Paragraph E of this Article, a party may, through interrogatories, deposition, and a request for documents and tangible things, discover facts known or opinions held by any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under Paragraph B, the deposition shall not be conducted until after the report is provided.
(2) A party may, through interrogatories or by deposition, discover facts known by and opinions held by an expert who has been retained or specially employed by another |4party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Article 1465 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
E. (1) The expert’s drafts of a report required under Paragraph B of this Article, and communications, including notes and electronically stored information or portions thereof that would reveal the mental impressions, opinions, or trial strategy of the attorney for the party who has retained the expert to testify, shall not be discoverable except, in either case, on a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(2) Nothing in this Article shall preclude opposing counsel from obtaining any facts or data the expert is relying on in forming his opinion, including that coming from counsel, or from otherwise inquiring fully of an expert into what facts or data the expert considered, whether the expert considered alternative approaches, or into the validity of the expert’s opinions.

Defendants assert that La. C.C.P. art. 1425(E)(1) creates an undiscoverable protection of information. However, La. C.C.P. art. 1425(E)(1) contains the same caveat, in regards to discoverability, as the section interpreted by the Louisiana Supreme Court in 1984: “a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts on the same subject by other means.” The language is identical to that the Stumpf Court found did not create a privilege, which would necessitate the disqualification of an expert with previous association with an opposing party. The legislature did not intend to fervently protect the information since the revision provides for discovery.

Accordingly, we find that Louisiana jurisprudence does not require the disqualification of Mr. Sonne and reverse.

WRIT GRANTED

BONIN, J., concurs with reasons.

BONIN, J.,

concurs with reasons.

hi respectfully concur in the granting of Safeguard’s writ application. The trial court disqualified an expert witness based upon a claim of “switching sides.” The only legal basis for the trial court’s action is, according to the respondent, the inherent power of the courts. La. C.C.P. art. 191 (“A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.”). Of course, inherent power is not co-extensive with unlimited power, and the trial court committed legal error when it fell into such an inviting trap.

There is no question that the federal courts, and some state courts, have granted this sort of relief in, for the most part, the unexamined belief that the “inherent powers” of courts extends to such actions. See, Kendall Coffey, “Inherent Judicial Authority and the Expert Disqualification Doctrine,” 56 FLA. L. REV. 195, 196-7 (2004):

[T]o address conflicts of interest for expert witnesses and consultants, federal courts have developed a distinctive jurisprudence that is not anchored upon the explicit terms of procedural rules, ethical strictures, or even Supreme Court precedent. Instead, a series of federal lower court decisions have crafted an expert-disqualification doctrine based upon a court’s inherent authority to safeguard the integrity of the judicial process and maintain the public’s confidence in the court system. Although critical differences have subsequently emerged in the way courts deploy this inherent authority, key features of the | ¡.underlying doctrine are still widely followed, despite the lack of procedural rules or extensive appellate case láw to direct these principles.

It may well be that the inherent power of the federal courts extends to the extraordinary exercise of power by a judge to exclude a qualified expert witness from testifying. For example, the U.S. Supreme Court approved dismissal of a case as a sanction for egregious litigation abuses, exclusively on the basis of the court’s inherent judicial power, but notably stated that “[t]he power is of ancient origin, having its roots in judgments of nonsuit and non prosequitur entered at common law.” Link v. Wabash R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (bold emphasis added). More to the point of our examination, however, is the caution expressed by the U.S. Supreme Court in Degen v. United States, 517 U.S. 820, 823-24, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) when a court purports to act under its inherent authority powers:

The extent of these powers must be delimited with care, for there is danger in overreaching when one branch of the Government, without benefit of cooperation or correction from the others undertakes to define its own authority.... Principles of deference counsel restraint in resorting to inherent power and requires its use to be a reasonable response to the problems and needs that provoke it.

“Because inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). This even more so applies to the courts of our state which, in our limited form of government, do not possess far reaching inherent powers. La. Const., art. V, § 2 (1974) addresses the inherent powers of Louisiana courts: “A judge may issue writs of habeas corpus and all other needful writs, orders, and process in aid of the jurisdiction of his court.... The power to punish for contempt shall be limited by law.” (emphasis added).

In Economy Carpets Mfrs. & Dist., Inc. v. Belter Bus. Bur. of Baton Rouge Area, Inc., 330 So.2d 301, 304-05 (La.1976), the trial court had issued a protective border under La. C.C.P. art. 1631, which “article is a partial restatement of courts’ inherent judicial authority and power of supervision.” Relying upon its earlier ruling in the same case, the Supreme Court noted that “[ujnquestionably, this power and authority would furnish ground for the issuance of a protective order to assure the fair administration of justice, [citation omitted] However, the judicial authority, as all powers of government, is not without limit....” Economy Carpets v. BBB, 330 So.2d 301, 304 (La.1976) (emphasis added).

I write separately to emphasize that the problem presented in the motion to disqualify a qualified expert witness is resolved within Louisiana’s statutory scheme. There is extensive legislation concerning expert witnesses which legislation, when considered as a whole, precludes the exercise of a power to exclude a witness for “switching sides.” La. C.E. art. 702 is a starting point:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
(emphasis added)

The purpose of an expert witness, as authorized by the legislature, is to assist the trier of fact, whether the judge or jury. While experts may sometimes be perceived to be in the “swearing-for-hire business” , under our statutory provisions, the expert witness is not an advocate for one side or the other. The expert witness, like any other witness, does not have a “side” from which to switch. The second circuit in Dartlone v. Louisiana Power & Light Co., 33,597 (La.App. 2 Cir. 6/21/00), 763 So.2d 779, 787, made this point quite well in finding that a trial judge committed legal error in disqualifying a qualified expert witness on the basis of his testifying for a party different from the one who had initially engaged him:

|4An expert is not a party or a party’s representative and there is no presumption that an expert is adverse or hostile to anyone. As such, an expert’s testimony may be considered by the court in its search for the truth, [citation omitted] Provided [the expert’s] testimony meets the requirements of La. C.E. art. 702, which we find it clearly does, it was improper to exclude his testimony on the basis of such perceived conflict of interest.

An expert witness is an adjunct to the trier of fact. His or her responsibilities can be properly distinguished from an expert consultant. The witness’ primary responsibility is to the fact-finder and the consultant is presumably engaged by an advocate to be his adjunct. The legislature has distinguished between an expert witness and an expert consultant in its treatment of the discovery the facts and opinions of each. Unlike the discovery of opinions of an expert witness under La. C.C.P. art. 1425(D)(1) “whose opinions may be presented at trial,” the more restrictive discovery of the opinions of an expert consultant “who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial” are conditioned “upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” La. C.C.P. art. 1425(D)(2).

However, neither the expert witness nor the expert consultant can be hidden from the adversary. As noted in its original opinion, the Supreme Court in State, Dep’t of Transp. and Dev. v. Stumpf 458 So.2d 448, 453-454:

Prior to trial a party can talk with any “fact witness.” The witness, however, has the right to refuse to talk. Similarly, a party can talk to any expert witness although the expert can refuse to talk. Once the witness, whether fact or expert, refuses to talk, the party seeking disclosure can invoke discovery rights in La.Code Civ. P. art. 1422 et seq., and compel disclosure within the limitations of those articles....
Articles 1452(2) and 1454, limiting the rights of an opposing party to compel disclosure by another’s expert of his opinion or the facts on which his opinion is based, do not create a privilege against the use of the expert as a witness at trial by the opposing party. The articles are neither limited by nor do they limit the admissibility of |sevidence at trial. Hence, we agree with landowners that in an expropriation case the landowner should be allowed to call as his own witness an expert retained but not called as a witness by the condemning authority....
Landowners can subpoena the experts to appear as their own witnesses at trial.

On rehearing, the Supreme Court emphasized any contractual provision preventing the calling of these experts by the adversarial party “would be against public policy and therefore of no legal effect.” Id. at 454. Their knowledge is, dependent upon the circumstances, available to any party during discovery, but is always available to the trier of fact when called by any party. This statutory distinction reflects and reinforces the legislative determination that an individual who is expert under La. C.E. art. 702 is not the chattel of the advocates or the parties.

La. C.C.P. art. 1425(E)(1) when read in pari materiae with La. C.C.P. art. 1424(A) underscores the legislative choice that the expert witness does not belong to a side. Article 1424(A) treats the conditions under which discovery may be had of work product materials, including attorney work product, which are generally privileged. La. C.E. art. 509. However, the last sentence of article 1424(A) imposes an important ban on disclosure, except in the case of an expert witness: “Except as otherwise provided in Article 1425(E)(1), the court shall not order the production or inspection of any part of the writing, or electronically stored information, that reflects the mental impressions, conclusion, opinions, or theories of an attorney.” (emphasis added). This nearly absolute ban on disclosure finds its sole exception in La. C.C.P. art. 1425(E)(1), which provides:

The expert’s drafts of a report required under Paragraph B of this Article, and communications, including notes and electronically stored information or portions thereof that would reveal the mental impressions, opinions, or trial strategy of the attorney who has retained the expert to testify, shall not be discoverable except, in either case, on a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(emphasis added)

IfiThe clear import of reading these legislative provisions together is that the only time an attorney for one side imperils disclosure of his mental impressions, opinions, or trial strategy, in the absence of waiver, is when they are shared with an expert whom the advocate expects to call as a witness.

La. C.C.P. art. 1425(E)(2) makes clear that an expert witness must disclose “facts and data the expert is relying on in forming his opinion, including that coming from counsel ...” (emphasis added) Therefore, facts and data, supplied by the attorney for one side, are not protected by the work product privilege. All of these legislative enactments, in my view, lead to the inescapable conclusion that an expert witness, at least in Louisiana, does not have a side from which to switch. Because of the expert witness’ responsibilities to the trier of fact, an attorney who retains an expert witness and shares his or her own mental impressions and trial strategy with the expert witness must understand that the attorney does not thereby possess either the expert witness or the expert witness’ opinion.

The legislature has provided a rather elaborate procedure for the trial court “to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence.” La. C.C.P. ait. 1425(F). Exercising a “gatekeeper” function, a trial judge may exclude a person as an expert witness who is ^qualified. State v. Foret, 628 So.2d 1116, 1123 (La.1993), relying upon Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). There is nothing in the statutory provisions which extend that gatekeeper function to rejecting a qualified expert witness as disqualified. The parties here agree that the expert witness, Mr. Sonne, is highly qualified.

| ./Therefore, we return to the central issue in this matter: on what lawful basis is a witness, qualified by La. C.E. arts. 702 through 705 to give opinion testimony, disqualified by the court? La. C.E. art. 602, which requires that a witness testify on “personal knowledge,” does not apply to expert witnesses. La. C.E. arts. 605 and 606 provide for the disqualification of judges and jurors, respectively, as witnesses. Lawyers are normally disqualified as witnesses in their own causes under Rule 3.7 of the Louisiana Supreme Court Rules of Professional Conduct. See Franklin Credit Mgmt. Corp. v. Gray, 07-1433, pp. 8-10 (La.App. 4 Cir. 1/14/09), 2 So.3d 598, 603-605 (Bonin, J., concurring) and the cases cited therein.

There is no question that Mr. Sonne has relevant evidence to assist the trier of fact. La. C.E. art. 401. Cheairs v. State, Dept. of Trans. & Dev., 03-0680 (La.12/3/03), 861 So.2d 536. “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation....” La. C.E. art. 402. This leads to La. C.E. art. 403, which forecloses the notion that a Louisiana court can disqualify an expert witness under its “inherent power.” Article 403, which was not employed in the decision below, provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

If Mr. Sonne’s testimony is to be excluded, it must be from the application of article 403 alone. Clay v. Int’l. Harvester Co., 95-1572 (La.App. 3 Cir. 5/8/96), 674 So.2d 398. The Third Circuit noted that article 403 “is applicable to |sall evidence, fact or expert, and permits exclusion of evidence whose probative value is substantially outweighed by certain dangers that threaten the validity of fact finding or by considerations of judicial economy.” Id., p. 7, 674 So.2d at 404. Clay was following similar treatment of applying article 403 to expert testimony in Adams v. Chevron, U.S.A., Inc., 589 So.2d 1219, 1223 (La.App. 4 Cir.1991) and Frederick v. Woman’s Hosp. of Acadiana, 626 So.2d 467, 471 (La.App. 3 Cir. 5/8/96).

The probative value of the testimony of a court-appointed expert witness who relied upon a report from an expert non-witness who had family ties to one side of the litigation was not found to have been “substantially outweighed by the danger of unfair prejudice.” Caillouet v. Zwei Bruderland, L.L.C., 99-590, pp. 5-6 (La.App. 3 Cir.11/3/99), 746 So.2d 752, 756-57. In Harrington v. Velinsky, 567 So.2d 148 (La.App. 2 Cir.1990), where the opposing party was arguing that under article 403 the testimony of Sgt. Gurley, who was both a party and an employee of another party, the court in rejecting the argument held:

Even though an expert witness is a party to a lawsuit, that fact alone is not sufficient to exclude his testimony.... The fact that a witness is a party or an employee of a party does not preclude his qualification as an expert. In such cases, the potential bias of the witness may be explored on cross-examination and argued to the jury.

A trier of fact can evaluate expert testimony by means of cross-examination and by comparison between or among experts at trial. The fact-finder can conclude that one expert is “more credible and compelling than” another. Radlein v. Holiday Inns, Inc., 07-0322, p. 8 (La.App. 4 Cir. 11/14/07), 971 So.2d 1200, 1205. “Where the fact-finder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be |nmanifestly erroneous. This rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony.” Adams v. Rhodia, 07-2110, p. 11 (La.5/21/08), 983 So.2d 798, 807.

Clearly, our courts do not need to resort to an expansive notion of inherent powers to address whether an otherwise qualified expert should be disqualified from testifying. We have our instructions from the legislature on the proper procedure, and we have our traditional methods to obtain and decide the truth: adversarial cross-examination and fact-finder evaluation of credibility. I concur, therefore, in the majority’s decision to permit Safeguard to call Mr. Sonne as its own witness at the trial of this matter.

      . As the motion was unopposed, this Court indicated that the supplement would be granted at oral argument. However, this Court is prohibited from receiving new evidence into the record.

      . It is undisputed that the defendants never “retained” as Mr. Sonne's retention agreement was neyer signed.

      . La. C.C.P. art. 1631(B) provides for the "exclusion of witnesses [which] is governed by Louisiana Code of Evidence Article 615.” The exclusion of witnesses treated in La. C.E. art. 615 involves exclusion of witnesses from the courtroom during proceedings.

      . See, Geriy Spence, With Justice For None 270 (1989).

      . Fed. R. Civ. Pro. 26(b)(94)(B); La. C.C.P. art. 1425(D)(2). The consultant may also be a party’s rejected witness.

      . Occasionally, "unqualified” and “disqualified” may unintentionally, but inaccurately, be used interchangeably. See, for example, Walker v. Avondale Industries, Inc., 09-0047 (La.App. 4 Cir. 1/15/09), 2009 WL 186184 (Jones, J., dissenting), and Walker v. Avondale Industries, Inc., 2009 WL 211817 (unpublished Per Curiam of Civil District Court Judge Michael Bagneris).

      .The majority opinion in Franklin Credit includes an excellent summary of decisions treating what Judge Tobias called the "advocate-witness rule.” While in my concurring opinion in Franklin, at p. 11, 2 So.3d at 605, I expressed my view that the discussion of the rule was "wholly unnecessary” to the result, that view does not detract from the accuracy of the summary.

      . Fed. R. Civ. Pro. 403 is nearly identical, adding a clause "or needless presentation of cumulative evidence.” Tellingly, not one of the federal expert disqualification cases for "switching sides” relies upon this federal rule as the source of the exercise of authority to disqualify a qualified expert.

      . The holding in Adams was expressly overruled in Clement v. Griffin, 91-1664 (La.App. 4 Cir. 3/3/94), 634 So.2d 412 because of the intervening Daubert decision. Daubert, however, has no impact upon the holding of Adams regarding applicability of article 403 to expert testimony and evidence. See Williams v. General Motors Corp., 93-0287 (La.App. 4 Cir. 2/11/94), 639 So.2d 275, 289, a post-Daubert decision.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    Anthony COMEAUX, et al. v. ACADIA PARISH SCHOOL BOARD.
    No. CA 09-109.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      Alan K. Breaud, Timothy W. Basden, Breaud & Meyers, Lafayette, LA, for Plaintiffs/Appellants, Anthony Comeaux, Julie Marie LeLeux Comeaux.
    Joseph R. Pousson, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Defendant/Appellee, Acadia Parish School Board.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

|,Anthony and Julie Comeaux, individually and on behalf of their minor daughter, Allison, filed suit against the Acadia Parish School Board following a cheerleading accident in which Allison sustained injuries. After a bench trial, judgment was rendered in favor of the Comeauxs. The Co-meauxs now appeal, contesting the finding of comparative fault, the award of damages, and the assessment of 25% court costs. The plaintiffs have also filed a motion to strike, seeking sanctions for defense counsel’s alleged violation of an order of the trial court to seal a portion of the record. For the following reasons, we affirm in part, reverse in part, and grant the motion to strike.

On May 31, 2005, Allison Comeaux, who has now reached the age of majority, was a fifteen-year-old freshman at Crowley High School in Acadia Parish. She was a cheerleader whose role on the squad was as a “flyer,” i.e., a squad member lifted into the air and tossed up for stunts by the one male cheerleader on the squad, Trevor Thibodeaux. In an effort to build a competitive cheerleading team, the Crowley coach, Lori Latiolais, urged her squad members to recruit other boys. Allison convinced her boyfriend, Dustin Touchet, to try some basic cheerleader stunts with her at home. On the last day of school, Coach Latiolais called a special practice, attended by Allison, Trevor, and Dustin, so she could see what Allison and Dustin had practiced.

Dustin was a football player who was characterized in the testimony as very strong. He was able to lift Allison easily and execute the basic stunt called “toss to chair” comfortably. After demonstrating that stunt, Allison and Dustin were instructed by Coach Latiolais to attempt an overhead extension, an advanced stunt requiring certain skills of both participants. Latiolais was not a trainer; she was | ¡merely a teacher who had cheered in high school and was therefore asked to oversee the program at Crowley High School. Dustin was completely untrained as a cheerleader. He was instructed on the stunt by Trevor, who simply spent a few minutes describing what he was to do in the stunt. Dustin approached the maneuver as though it were a weightlifting exercise. He thought his main objective was to lift Allison to a standing position, then hold onto her feet tightly. Conversely, Allison knew from her years of training as a cheerleader that she was to jump down should she anticipate a failure of the stunt, requiring that her feet be free. No mats or other safety equipment were used at this practice.

The accident occurred when Allison attempted to jump down while Dustin held her feet tightly. She fell to the carpeted floor on her back, experiencing immediate pain. Dustin helped her to the car and drove her straight to the doctor’s office. The doctor then had Allison transported to the hospital. She was diagnosed with two compression fractures of the spine at levels T12 and L2. She spent eight weeks in a back brace that summer and was told to quit cheerleading. The fractures healed; however, the discs are minimally herniated. Allison has been restricted from high-impact sports and testified that she experienced pain while carrying her backpack and sitting in a desk for long periods of time.

The trial court found fault on the part of the School Board through the failure of Coach Latiolais to properly train Dustin in the progression of skills necessary to execute an overhead extension, in the delegation to Trevor of training Dustin, and in the improper placement of spotters who were there to help insure Allison’s safety. The trial court also found fault with Allison. The court assessed her with 25% comparative fault for buckling her knees during the stunt and balling up during her | ¡¿fall. In reasons for judgment, the court explained that when the stunt “was attempted, her knees buckled, which guarantees failure of the stunt.... And in the failure phase, the way she fell contributed to the injuries she received. Instead of laying out and remaining stiff ... she tucked in somewhat, balled up.”

In this appeal, the Comeauxs contend the trial court erred in assessing fault to Allison for two reasons. First, the School Board did not plead the affirmative defense of plaintiff fault. Second, the facts do not support a finding of comparative fault. Because we find the trial court erred in its factual conclusion regarding the fault of Allison Comeaux, we choose not to discuss the adequacy of the School Board’s pleadings on the issue.

A duty-risk analysis must be applied in a claim of comparative fault. Fault in causing an accident is determined under a five-step duty-risk analysis:

This is a five-step process which requires that a party asserting fault on another establish (1) that the party whose fault is at issue had a duty to conform his conduct to a specific standard, (2) that the party’s conduct failed to conform to the appropriate standard, (3) that the party’s conduct was a eause-in-fact of the injuries at issue, (4) that the party’s substandard conduct was a legal cause of the injuries at issue, and (5) that there were actual damages. Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791.

Fontenot v. Patterson Ins., 06-1624, 06-1625, p. 6 (La.App. 3 Cir. 2/18/09), 5 So.3d 954.

The testimony of both Allison and Dustin shows that Allison perceived an imbalance in the stunt; she thought Dustin was falling in what was his third attempt to lift her overhead. Therefore, in compliance with her training, she attempted to jump off, thereby necessarily bending her knees. She was prevented from jumping safely, however, when Dustin continued the thrust of the lift and held on to her feet. The mechanics of the stunt and the lack of split-second communication between the ^^participants caused Allison’s knees to buckle and the awkward position of her body as she fell. To find that Allison breached a legal duty to fall a certain way is clear error. We, therefore, reverse the assessment of 25% fault to Allison and the corresponding reduction of damages and assignment of costs.

Also in this appeal, the Comeauxs complain of the trial court’s failure to award future lost wages, damages for loss of enjoyment of life, and adequate future medical expenses and general damages. We have reviewed the testimony and medical evidence in detail and conclude the trial court committed no error in its damage award, which consisted of the following elements:

Past medical expenses .$ 14,366.19

Future medical expenses.$ 35,000.00

Future lost wages.$ 0

Past pain and suffering.$ 50,000.00

Future pain and suffering .... $150,000.00

Disability.$ 25,000.00

Loss of enjoyment of life.$ 0

TOTAL:.$274,366.19

The record before us shows Allison to be an active, sociable young woman. At the time of trial, she had two jobs, was finishing up her high school career, and kept herself busy by traveling, attending concerts, and going out dancing. However, after failing grades, numerous absences, and a bad break-up with Dustin Touchet, Allison left Crowley High School midway through her junior year. At the time of trial, she was enrolled in Gumpoint Christian Academy, a local school which provides home-based online learning. Allison attributed her academic problems to the injuries | ¡¡sustained in the cheerleading accident and attempted to minimize any other factors which could have caused her to leave school. The evidence, however, shows that Allison’s academic problems and her complaints of severe pain arose eighteen months after the accident and followed personal problems with Dustin and other school mates, an automobile accident, and a fall. Although Allison’s complaints at trial were profound, pharmacy and other medical records show she almost never took medication for pain or urinary leakage, a secondary complaint documented in medical records more than a year after the accident. Estimates of future medical care were minimal and not at all definitive; however, there was indication in the record that Allison may need care for her back or her urological complaints at some point in the future.

Regarding academic problems, dropping out of Crowley High School was a choice that did not seem to make sense. Allison’s parents did not talk to the school administration, request a home-bound teacher, or ask for physical accommodations to alleviate the pain from her backpack or from sitting at her desk. Furthermore, there is no evidence in the record that Allison will not be capable of obtaining a college degree, as she had always planned. She has no job restrictions other than to avoid heavy lifting, and, in fact, she was working as a waitress at the time of trial.

Our review of the record shows insufficient proof of future lost wages and any loss of enjoyment of life. Furthermore, the $35,000.00 award for future medical expenses and the $150,000.00 award of general damages were adequate and well supported by the evidence.

Finally, we turn now to the Co-meauxs’ motion to strike a copy of a proposed stipulation attached to the School Board’s brief to this court. The original of the | (¡controversial document was placed in the record in a loosely closed envelope. It was not marked “sealed” and had no exhibit number. The handwritten document was an unsigned purported stipulation never executed and never entered into the record. Nevertheless, counsel for the School Board attached it to his brief to this court. Neither the minutes of the trial court proceedings nor the transcript itself include any reference to this document. Accordingly, we have determined the proposed stipulation was inappropriately included in the record and in brief to this court. By order of this court, it will be stricken and removed from all copies of the record and the School Board’s brief, both paper and electronic. Sanctions against the School Board and its counsel, however, are denied, as there is no indication that counsel violated an order of the trial court to seal a portion of the record, as alleged by the plaintiffs.

For the above and foregoing reasons, the judgment of the trial court is reversed in part and affirmed in part. That portion of the judgment which assessed 25% comparative fault to Allison, and the corresponding reduction of damages and assessment of court costs, are hereby reversed. In all other respects, the judgment of the trial court is affirmed. Plaintiffs’ motion to strike is granted, and the proposed stipulation is hereby stricken from the record and all copies of the defendant’s brief. Costs of this appeal and the motion to strike are assessed to the Acadia Parish School Board.

AFFIRMED IN PART, REVERSED IN PART; MOTION GRANTED.


author: AMY, Judge.

text:
    BENTON SPECIALTIES, INC., et al. v. CAJUN WELL SERVICE, INC., et al.
    No. 09-506.
    Court of Appeal of Louisiana, Third Circuit.
    June 10, 2009.
    Stanford B. Gauthier, II, Lafayette, LA, for Defendant/Appellant: Cajun Well Service, Inc.
    Sue Nations, Lafayette, LA, for Plaintiffs/Appellees: Lexington Insurance Company Benton Specialties, Inc.
    Jonathan C. Augustine, The Augustine Law Firm, A.P.L.C., Baton Rouge, LA, for Defendant/Appellee: Petrosurance Casualty Company In Receivership.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

l/fhe Defendant-Appellee, Petrosurance Casualty Company In Receivership (Petro-surance), has filed a Motion To Dismiss Interlocutory Portion of Appeal. For the reasons given herein, we deny the motion.

This case involves a concursus proceeding. In 1996, Warren Malveaux was injured while acting within the course and scope of his employment with Cajun Well Service, Inc. (Cajun). Mr. Malveaux filed a workers’ compensation claim and received approximately $118,000.00 in benefits from Petrosurance, which is the workers’ compensation carrier for Cajun.

Mr. Malveaux also filed a tort action against Benton Specialities, Inc. (Benton), and its insurer, Lexington Insurance Company (Lexington). As part of the settlement agreement for the tort action, Benton and Lexington agreed to pay $45,000.00 to Mr. Malveaux and $59,000.00 to Petrosurance. However, because Cajun asserted that it was entitled to recover a portion of the $59,000.00, Benton and Lexington deposited this amount into the registry of the court, and filed the instant concursus proceeding, naming Petrosu-rance and Cajun as defendants.

Petrosurance filed a motion for summary judgment arguing that it was entitled to the entire $59,000.000 which had been deposited into the registry of the court. The trial court granted the motion and ordered that the funds, less the costs of the concursus proceeding, be distributed to Petrosurance. The funds were subsequently disbursed to counsel for Petrosu-rance. However, Cajun filed a suspensive appeal, and this court reversed the trial court, finding that the existence of genuine issues of material fact precluded summary judgment. See Benton Specialties, Inc. v. Cajun Well Service, Inc., 05-842 (La.App. 3 Cir. 2/1/06), 922 So.2d 687, writ not considered, 06-0515 (La.5/5/06), 927 So.2d 302.

12After the case was remanded to the trial court, various motions and other pleadings were filed, including a Rule to Show Cause Why Sanctions Should Not Be Levied which was filed by Cajun. By this rule, Cajun sought to have the disputed funds returned to the registry of the court and to have the attorneys representing Petrosurance sanctioned for withdrawing the funds before the appeal delays had run and for not returning the funds once they learned that a suspensive appeal had been filed.

On February 25, 2008, the trial court conducted a contradictory hearing regarding the Rule for Sanctions, in addition to conducting a trial on the merits of the case. On April 24, 2008, the trial court signed a judgment denying the Rule for Sanctions as it pertains to Petrosurance and one of its attorneys, Montgomery Barnett, and took the remaining matters under advisement. On May 16, 2008, the trial court issued two judgments and two Reasons for Judgment. In one of the judgments, in addition to ruling on other matters, the trial court denied Cajun’s Rule for Sanctions with regard to Petrosu-rance’s other attorneys. In the second judgment, the trial court ruled in favor of Petrosurance on the merits of the case, finding that Petrosurance was entitled to receive all the funds at issue in this con-cursus proceedings. Notice of the two judgments rendered in May was mailed on August 14, 2008.

On September 8, 2008, Cajun filed a motion for appeal, stating that it wanted to suspensively appeal the judgment on the merits and to devolutively appeal the judgment regarding the Rule for Sanctions. The order of appeal was signed by the trial court on September 10, 2008. The appeal was lodged in this court on April 28, 2009.

On May 11, 2009, Appellee, Petrosu-rance, filed a motion to dismiss that portion of the appeal that pertains to the ruling on Cajun’s Rule for Sanctions. | ^Appellee contends that in its motion for appeal, Cajun mistakenly refers to both judgments signed on May 16, 2008, as final judgments. However, Appellee asserts that pursuant to La.Code Civ.P. art. 1841, the judgment denying the Rule for Sanctions is an interlocutory judgment because it decides preliminary matters rather than the merits of the case. Appellee cites Bernard, v. Allstate Ins. Co., 396 So.2d 548 (La.App. 3 Cir.1981), for the proposition that there is no right to appeal an interlocutory judgment, absent a showing of irreparable injury. In the instant case, Appel-lee contends that Cajun has not made a showing of irreparable harm, and therefore, it cannot take an appeal from the judgment regarding the Rule for Sanctions. According to Appellee, the only means by which Cajun could have had this court review the trial court’s ruling regarding sanctions would have been to file a notice of intent to seek supervisory writs. Since no such notice was filed, Appellee argues that this court should dismiss that portion of the appeal which deals with the trial court’s denial of the Rule for Sanctions.

In its opposition to the instant motion, Cajun argues that the judgment regarding the Rule for Sanctions is subject to review on appeal. Citing Texas Gas Transmission Corp. v. Soileau, 251 So.2d 104, 106 (La.App. 3 Cir.), writ not considered, 259 La. 878, 253 So.2d 214 (1971) (citations omitted), Cajun asserts that “[wjhen a judgment is rendered on the merits of the case, any interlocutory judgment becomes part of the final decree and is subject to review on appeal.” Cajun also cites Bielkiewicz v. Insurance Co. of North America, 201 So.2d 130, 135 (La.App. 3 Cir. 1967) (citations omitted), for the proposition that “[w]hen an unrestricted appeal is taken from a final judgment, the appellant is entitled to a review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the correctness of the final judgment appealed from.” In the instant case, Cajun contends that since |4it has taken an unrestricted appeal from the judgment on the merits of the case, it is entitled to appellate review of the adverse judgment regarding sanctions.

This court has held that although an interlocutory judgment is generally not ap-pealable, an interlocutory judgment is' subject to review on appeal when an appeal-able judgment has been rendered in the case. Firemen’s Pension and Relief Fund for the City of Lake Charles v. Boyer, 420 So.2d 1323 (La.App. 3 Cir.1982). In the instant case, a final, appealable judgment has been rendered with regard to the merits of the case, and that is one of the judgments at issue in this appeal. While the judgment denying the Rule For Sanctions is an interlocutory judgment, we find that, pursuant to the ruling set forth in Firemen’s Pension and Relief Fund, it is appropriate for this judgment to be subject to appellate review along with the judgment on the merits. Therefore, Ap-pellee’s motion to dismiss that portion of this appeal which challenges the denial of the Rule for Sanctions is denied at Appel-lee’s cost.

MOTION TO DISMISS APPEAL DENIED.


author: WALLER, Chief Justice, KITCHENS, Justice,

text:
    Julie MABUS v. ST. JAMES EPISCOPAL CHURCH, Episcopal Diocese of Mississippi, Inc., and Jerry McBride.
    No. 2006-CA-02052-SCT.
    Supreme Court of Mississippi.
    April 16, 2009.
    Rehearing Denied Aug. 6, 2009.

      Felecia Perkins, attorney for appellant.
    Glenn Gates Taylor, D. James Black-wood, Jr., Karen L. Gunn, Christy M. Sparks, Ridgeland, Robert A. Malouf, attorneys for appellees.
    Before WALLER, C.J., DICKINSON and KITCHENS, JJ.
   WALLER, Chief Justice,

for the Court.

¶ 1. This case is on appeal for a second time before this Court. Julie Mabus filed suit in the First Judicial District of Hinds County Circuit Court against St. James Episcopal Church, Protestant Episcopal Church in the Diocese of Mississippi, and Jerry McBride (a former priest at St. James). She asserted seven causes of action against the defendants based upon McBride’s participation in the surreptitious tape recording of a conversation among Julie, her then-husband, Ray Ma-bus, and McBride. The trial court granted summary judgment in favor of the defendants on all counts, with the exception of the fraudulent-concealment claim against McBride individually. In Mabus v. St. James Episcopal Church, 884 So.2d 747 (2004) (hereinafter Mabus I), we affirmed the trial court and remanded the case for disposition of the fraudulent-concealment cláim against McBride. Mabus I, 884 So.2d at 765. On remand, the lower court granted summary judgment in favor of McBride on the fraudulent-concealment claim, and denied Julie’s motion for relief from judgment, which sought to revive her claim for breach of fiduciary duty. We affirm, but on different grounds from those relied on by the trial court. See Sanderson Farms, Inc. v. Gatlin, 848 So.2d 828, 843 (Miss.2003).

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts of this case are the same as those set forth in Mabus I:

The cause of action arises from McBride’s participation in the tape recording of his meeting with Ray and Julie on January 7,1998. At the time of the meeting, Ray and Julie were married, and McBride was the pastor at St. James Episcopal Church in Jackson, Mississippi where the Mabuses attended. Julie was an active, lifelong member of St. James. McBride officiated at the Mabuses’ wedding and baptized both of their children. In addition to serving as their pastor, McBride was a close personal friend of both Ray and Julie. Ray invited McBride to be present when he confronted Julie with his knowledge of her purported infidelity several days prior to the meeting, and Ray told McBride that he intended to record the conversation on the advice of his divorce attorney. Julie’s sister was also invited to attend the meeting, but she did not attend because her airline flight into Jackson was canceled due to inclement weather.
The meeting took place in the Mabuses’ home. The trial court found that “the purpose of the confrontation and surreptitious recording was to obtain evidence for Ray Mabus to use as leverage.in attempting to get Julie to agree to a no-fault divorce.” Julie did not know that Ray was recording the meeting!] nor was she' aware that the purpose of the meeting was to confront her with her purported infidelity. Ray later testified in a deposition that he told Julie that he “wanted to talk to her about something important with McBride present.” Ray also testified that he believed McBride’s “participation could possibly help save the marriage.” However, by way of affidavit, Ray stated that “this meeting was not in any way a ‘counseling session.’ ” What is clear from the transcript of the meeting is the fact that Ray presented his wife with three options: save the marriage, no-fault divorce, or “we go to war” which would include an alienation of affection suit against her alleged paramour. The first option was instantly dismissed by Julie, and it was readily discernible that custody of the children would be a major point of disagreement. Julie expressed confusion as to why McBride was present. McBride responded at times that he was there for Ray and at other times for both of them. Julie was combative and used profanity during the course of this confrontation and likewise begged and pleaded for custody of her children. At one point, McBride sent Ray out of the room. With Julie still upset, McBride assured Julie that he was not there to ambush her, that he was there by her side, and that she was not alone. Soon after-wards, McBride left the home. Julie asserts that, after leaving the Mabus household, McBride told several other people of the conversation regarding Julie’s alleged infidelity.
Divorce proceedings ensued between the Mabuses. Although the transcript was not introduced as evidence, Ray’s expert witness used the transcript in reaching his determination that Ray was the more stable parent and should have custody of the children. Ray was awarded legal custody of the children, with both parties gaining joint physical custody.

Mabus I, 884 So.2d at 751-52 (footnote omitted).

¶ 3. Julie filed suit against McBride, the church, and the diocese, alleging breach of fiduciary duty, fraudulent concealment, negligent misrepresentation, invasion of privacy, negligent infliction of emotional distress, negligent retention/supervision, and clergy malpractice. The trial court granted summary judgment for defendants on all counts, with the exception of the fraudulent-concealment claim against McBride. This Court affirmed the trial court and remanded the case for disposition of the fraudulent-concealment claim against McBride, individually. Mabus I, 884 So.2d at 765.

¶ 4. Following Mabus I, the parties conducted further discovery on the issue of fraudulent concealment. McBride then filed a motion for summary judgment on July 28, 2006. Days later, on July 31, 2006, Julie filed a motion for relief from the judgment, or in the alternative, motion to dismiss and for other relief. In her motion, Julie requested that the trial court set aside its 2002 grant of summary judgment on her breach-of-fiduciary-duty claim, and enter judgment in her favor. She argued that the trial court’s prior ruling was based on false affidavits submitted by Ray and McBride, as well as a fabricated transcript of the meeting.

¶ 5. On October 9, 2006, the trial court granted summary judgment in favor of McBride. In a separate opinion and order that same day, the trial court denied Julie’s motion for relief from judgment. Julie now appeals to this Court raising the following assignments of error: (1) whether the trial court erred in granting summary judgment for McBride, and (2) whether the trial court erred in denying Julie’s motion for relief from judgment.

DISCUSSION

1. Whether the trial court erred in granting summary judgment for McBride.

¶ 6. This Court conducts a de novo review of a trial court’s decision on a motion for summary judgment. Smith v. Gilmore Mem’l Hosp., Inc., 952 So.2d 177, 180 (Miss.2007) (quoting Brown v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129, 130 (Miss.2003)). The moving party is granted judgment “ ‘if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Smith, 952 So.2d at 180 (quoting Miss. R. Civ. P. 56(c)). Although summary judgment, in whole or in part, must be granted with great caution, it “is mandated where the respondent has failed ‘to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” Smith, 952 So.2d at 180 (quoting Brown, 444 So.2d at 363; Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996)).

¶ 7. In granting summary judgment for McBride, the trial court found that Julie had essentially “talked herself right out of court.” Prior to Mabus I, the trial court had denied McBride’s motion for summary judgment on the fraudulent-concealment claim. At that time, Julie had asserted in an affidavit that had she known she was being taped, she would have responded differently or refused to participate in the conversation. But on remand from Mabus I, Julie gave a deposition and submitted an affidavit in which she stated that she suspected Ray was taping her. Significantly, Julie confirmed that her suspicions arose shortly into the meeting. The trial court found that these concessions showed that Julie was not prevented from discovering the tape recording; and therefore, she could not establish one of the necessary elements for a cause of action based on fraudulent concealment.

¶ 8. Julie claims that the trial court erred in granting summary judgment for McBride, and that it applied an incorrect legal test to reach its conclusion. She submits that the trial court failed to apply the proper elements of fraudulent concealment as set forth in Mabus I.

¶ 9. In Mabus I, this Court explained fraudulent concealment as follows:

... [T]he plaintiff must prove (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury. Furthermore, under Mississippi law, these elements must be shown by clear and convincing evidence.... [I]n order for there to be liability for nondisclosure, silence must relate to a material fact or matter known to the party and as to which it is his legal duty to communicate to the other contracting party. An affirmative act of concealment is necessary.

Mabus I, 884 So.2d at 762 (citations omitted). The trial court, however, relied on Phillips v. New England Mutual Life Insurance Co., 36 F.Supp.2d 345, 348 (S.D.Miss.1998) (quoting Davidson v. Rogers, 431 So.2d 483, 485 (Miss.1983)) which states three requirements for fraudulent concealment — the plaintiff must show that the defendant (1) took some action, affirmative in nature; (2) that was designed or intended to prevent; and (3) which did prevent the plaintiffs discovery of the facts giving rise to a claim of fraud. Phillips, 36 F.Supp.2d at 348 (quoting Davidson, 431 So.2d at 485).

¶ 10. Although Mabus I further expounds on the elements of fraudulent concealment, there is nothing inherently wrong or inconsistent with the test used by the trial court. Mabus I incorporates the three elements stated in Phillips and Davidson. Therefore, we find that the standard employed by trial court was not improper per se.

¶ 11. Turning to the basis of the trial court’s decision, we disagree with its finding that no genuine issue of material fact exists regarding Julie’s knowledge of the recording. It is true that Julie stated in her deposition that she suspected or figured that the conversation was being recorded. But in her affidavit, she explained further that she quickly dismissed these thoughts because she did not believe that McBride would participate in or condone such actions. Considering the facts in the light most favorable to Julie, it is plausible that she merely suspected, but did not seriously believe or know, that the conversation was being taped.

¶ 12. Despite our disagreement with the trial court’s rationale, we find summary judgment proper for a more fundamental reason — Julie is unable to establish that McBride had a legal duty to disclose any knowledge he had of the recording. In order to be liable for nondisclosure, a party must have had a legal duty to communicate a known material fact. Mabus I, 884 So.2d at 762 (citing Guastella v. Wardell, 198 So.2d 227, 230 (Miss.1967)). Thus, nondisclosure in itself, even if fraudulent, does not give rise to a legal claim. The party must have concealed something that he or she was legally required to disclose. This Court previously found that no fiduciary relationship existed between Julie and McBride. Mabus I, 884 So.2d at 761. A fiduciary relationship requires “that both parties understood that a special trust and confidence was being reposed.” Id. at 758 citing Lowery v. Guar. Bank & Trust Co., 592 So.2d 79, 84 (Miss.1991). It is clear, however, that Julie was not dependent upon McBride, nor did she repose any trust or confidence in him. Mabus I, 884 So.2d at 759. Nothing resembling a marital counseling session ever occurred. Id. at 761. In the absence of a fiduciary relationship, and with no other legal duty apparent from the record, we find that Julie’s claim of fraudulent concealment against McBride must fail.

¶ 13. For the aforementioned reasons, we affirm the trial court’s grant of summary judgment for McBride on the fraudulent-concealment claim.

II. Whether the trial court erred in denying Julie’s motion for relief from judgment.

¶ 14. The standard of review for the denial of a motion for relief from judgment is abuse of discretion. Davis v. Nationwide Recovery Serv., 797 So.2d 929, 930 (Miss.2001) (citing Montgomery v. Montgomery, 759 So.2d 1238, 1240 (Miss.2000)). Consideration of a motion based on Mississippi Rule of Civil Procedure 60(b) generally requires that a “ ‘balance ... be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality.’ ” City of Jackson v. Jackson Oaks L.P., 860 So.2d 309, 311-12 (Miss.2003) (quoting Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)). Rule 60(b) motions should be denied where they are merely an attempt to relitigate the ease. Jackson Oaks L.P., 860 So.2d at 312 (citing Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987)).

¶ 15. In August 2002, the trial court granted McBride’s motion for partial summary judgment on Julie’s breach-of-fiduciary-duty claim. This Court affirmed the trial court’s decision in Mabus I, finding that Julie had failed to prove that a fiduciary relationship had existed between her and McBride. Mabus I, 884 So.2d at 760-61. On remand from Mabus I, Julie filed a motion for relief from judgment, or in the alternative, motion to dismiss and for other relief, requesting that the trial court reinstate her breach-of-fiduciary-duty claim. Julie argued that the trial court based its decision on false affidavits submitted by Ray and McBride, and an inaccurate transcript of the taped meeting. The trial court held that even if Julie’s allegations were true, request for Rule 60(b) relief was time-barred because she had knowledge of any false or inaccurate statements prior to the trial court’s 2002 ruling, but did not seek relief from the judgment until July 2006.

¶ 16. Julie now argues that her claim for breach of fiduciary duty should be reinstated, because Ray and McBride perpetrated a fraud to obtain partial summary judgment. She submits that a partial summary judgment is interlocutory and may be modified. She further contends that because McBride remains a party to the action, he would not be prejudiced by having the claim reinstated.

¶ 17. We find Julie’s arguments to be without merit. The trial court certified its 2002 order as final under Rule 54(b) of the Mississippi Rules of Civil Procedure. Miss. R. Civ. P. 54(b). Additionally, Rule 60(b)(6) provides that a motion for relief from judgment based upon fraud or misrepresentation may not be brought more than six months after the judgment or order is entered. Miss. R. Civ. P. 60(b)(6).

¶ 18. We therefore find that the trial court did not abuse its discretion in denying Julie’s motion for relief from judgment.

CONCLUSION

¶ 19. Because Julie is unable to show that McBride had a legal duty to disclose the recording, we affirm summary judgment in favor of McBride on the fraudulent-concealment claim. We further find that the trial court did not err in denying Julie’s motion for relief from judgment.

¶ 20. AFFIRMED.

CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. DICKINSON, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY DICKINSON, J. GRAVES, P.J., NOT PARTICIPATING.

KITCHENS, Justice,

Concurring:

¶ 21. Today’s decision marks the sad end of a sad case. Given the obligations imposed upon us by this Court’s previous decision in this case, I am compelled to join today’s pronouncement in its entirety. I write separately, however, to express my strong reservations.

¶ 22. When this case first visited this Court nearly five years ago, the majority concluded that Julie Mabus had put forth no evidence to suggest that she depended upon Jerry McBride in his role as her priest. Mabus v. St. James Episcopal Church, 884 So.2d 747 (Miss.2004) (Mabus I). With respect, I am convinced that this finding was erroneous.

¶ 23. The relationship between priest and parishioner carries depths of trust that cannot be overstated; and viewed in the light most favorable to Ms. Mabus, Neely v. North Mississippi Medical Center, Inc., 996 So.2d 726, 728 (Miss.2008), the record supplied ample evidence to contradict the Court’s 2004 conclusion that “Julie was not dependent upon McBride, nor [did] she repose[ ] any trust or confidence in him_” Mabus I, 884 So.2d at 759. During their surreptitiously recorded colloquy, McBride repeatedly referred to his longstanding status as Julie’s priest to encourage her comfort and trust. See, e.g., id. at 759-60 (“McBride: ... [T]his is not an ambush on my part, I’m here because I love you, I didn’t want to be here.”). Julie’s continued presence at the meeting was in and of itself evidence that McBride’s overtures persuaded her. Had I been a member of the Court when it addressed this case in 2004, I would have voted to submit to a jury the questions of fact as to whether the priest-penitent relationship was operative at that time and whether it was breached by McBride.

¶24. Similarly, if this case’s return to our chambers presented an opportunity to reverse this Court’s 2004 decision, I would vote to do so. But of Ms. Mabus’s seven original claims against McBride, St. James, and the Diocese of Mississippi, only one survived our 2004 judgment. And although I strongly disagree with the Mabus I Court’s conclusion that McBride, as a matter of law, did not act as Ms. Mabus’s priest during the 1998 tape-recorded meeting, I am duty-bound by the law-of-the-case doctrine to apply Mabus I to the fragment that remains today. Therefore, forced as we are by Mabus I to view McBride not as a clergyman but rather as we would any other man on the street, I am prevented from finding, with regard to Ms. Mabus’s only remaining claim, that McBride acted under an affirmative duty to disclose that this ostensibly confidential conversation was being recorded secretly.

¶ 25. Uncomfortable though I am in this final result, my greater fear is that these two decisions will leave Mississippians reticent to divulge their deepest secrets to men and women of the cloth, for fear that the priest-penitent privilege affords no real protection of confidentiality. I do hold out hope that such will not come to pass; for although this case provides a poor example, the central holding of Ma-bus I is one under which Mississippians can take refuge. At its core, Mabus I affirms two important points of law: that a fiduciary relationship can exist between shepherd and sheep, and that the First Amendment does not necessarily preclude court actions for breach of that duty. Id. at 760. Neither of these statements provides a bright-line rule, however. Thus, the determination of whether a cause of action has arisen “is ordinarily a question of fact.” Id. (citing Lowery v. Guar. Bank & Trust Co., 592 So.2d 79, 85 (Miss.1991)). In Julie Mabus’s case, that fact-intensive question rightly belonged to a jury.

¶ 26. Therein lies the ultimate paradox of Mabus I. Although it identified an important legal principle that should afford the protection of confidentiality to the faithful, this Court denied that protection to the person whose misplaced trust in a clergyman first brought that dilemma to this Court’s attention. Because of Mabus I, Mississippians should not fear Julie Ma-bus’s legal fate, but the decision securing that peace of mind denied it to the very woman whose name henceforth will be synonymous with that protection.

¶ 27. I have searched for a way to avoid that irony in this case; but given our earlier determination regarding McBride, I see no other legally viable outcome than the one reached by today’s decision. I believe, though, that, generally speaking, our two decisions in this litigation help to secure Mississippians’ privacy interests. I fervently hope that the misapplication of that protection ends with Julie Mabus.

DICKINSON, J., JOINS THIS OPINION IN PART.

      . Julie did not know beforehand that Ray was recording the meeting. On remand before ■ the trial court and presently on appeal, both parties vehemently dispute whether Julie developed such knowledge during the meeting.

      . Julie’s April 2006 deposition included the following exchange:
      [McBride's Counsel]: Who told you it had been taped?
      [Julie]: They told me at a deposition.
      [McBride’s Counsel]: But you figured it had been before that, though.
      [Julie]: Yes.

        [McBride's Counsel]: At what point during the confrontation did you figure he was taping you?
      [Julie]: I think when he went through the litany of things: You can do this, this, this, and this.
      [McBride's Counsel]: When he was giving you the options?
      [Julie]: And it was, like, okay.
      [McBride’s Counsel]: You were kind of sizing things up?
      [Julie]: That's when I turned to [McBride], and I said to him—
      [McBride's Counsel]: — "What are you doing here?”
      [Julie]: — "What are you doing here?” Because I thought he was there in another capacity to help us through a situation with Ray.
      [McBride's Counsel]: But at that point you had a suspicion that Ray is taping you.
      [Julie]: At some point in time 10 or 15 minutes into it, you know, yes. Yeah.

      . Julie contends that the standard derived from Phillips and Davidson applies only to the fraudulent concealment of a cause of action, rather than a stand alone claim for fraudulent concealment as in this case. These are, in fact, two distinct types of claims. The fraudulent concealment of a cause of action applies to any claim, but is not to be confused with cases, like the one at hand, "where the gist of the action itself is fraud, and the concealment is inherent in the fraud.” See Prather v. Neva Paperbacks, Inc., 446 F.2d 338, 341 n. 2 (5th Cir.1971) (citing Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946)). The elements for both types of claims are very similar. See Windham v. Latco of Miss., Inc., 972 So.2d 608, 614 n. 8 (Miss.2008) (in order to show fraudulent concealment of a cause of action, a party must show some affirmative act or conduct designed to prevent the discovery of a claim, which did prevent the discovery of the claim, and that due diligence was performed by the party to discover it) (quoting Channel v. Loyacono, 954 So.2d 415, 423 (Miss.2007)). Nevertheless, Phillips and Davidson involved claims of fraud in which concealment was inherent in the fraud. See Phillips, 36 F.Supp.2d at 348; Davidson, 431 So.2d at 485. Thus, we find their purported standard for fraudulent concealment relevant to this case.

      . Justice Dickinson aptly recognized this quandary in his separate opinion in Mabus I. Mabus I, 884 So.2d at 766 (J. Dickinson, concurring in part, dissenting in part).

      .Julie argued that Ray's 2002 affidavit contradicted his 1998 deposition, which was taken during his and Julie's divorce proceeding. In the affidavit, Ray stated:
      This meeting was not in any way "a counseling session.” I did not ask [McBride] to be there for the purpose of giving us marital counseling. Neither [McBride] nor I told Julie that [McBride] was present for the purpose of marital counseling.
      In Ray's 1998 deposition, the following exchange occurred:
      [Julie's Counsel]: Why was [McBride] present?
      [Ray]: [McBride] was present because I had gone to him when I learned definitely that Julie was having an affair with Mr. Ely, to seek guidance and counseling. I told him that I wanted to try to save the marriage .
      [Julie's Counsel]: Did [Julie] know [McBride] was going to be there, [sic]
      [Ray]: Yes.

      [Julie's Counsel]: And what did you actually tell [Julie] about that meeting?
      [Ray]: I told [Julie] there was something I needed to talk to her about. That I had talked to [McBride] about it. And that [McBride] was going to be there.

      [Julie's Counsel]: Okay. Is your wife's personality such that she made no particular inquiry to you as to why she was going to be over there talking to you and [McBride]? [Ray]: No. [Julie] told me — she asked what it was about. I told her it was about the marriage, but I would prefer to do it at the meeting. And I wouldn’t give her any more particulars.

      [Julie's Counsel]: ... [I]s it your position that [McBride] was there in his capacity as priest for both of you?
      [Ray]: Yes.
      [Julie's Counsel]: And to offer whatever spiritual guidance either of you would ask of him on that occasion?
      [Ray]: Yes.

      . Julie argued that McBride's 2001 affidavit contradicted his 2000 deposition. In his affidavit, McBride stated:
      My purpose for being present at the Mabus residence on the day in question was simply to be supportive of members of the church during a time of family crisis. If Ray and Julie Mabus ha[d] expressed to me an interest in pursuing marital counseling I would not have become involved in that process. In McBride's 2000 deposition, the following exchange occurred:
      [Julie’s Counsel]: Did [Ray] ever tell you that his purpose of going over there was for anything other than in your capacity as a preacher that had been knowing her for 20 years, or thereabouts, to try to sit down and counsel with a couple to save their marriage?
      [McBride]: That was the only reason I was there.
      [Julie’s Counsel]: Okay. At least as far as you were concerned, that's the only reason—
      [McBride]: Of course. I’m speaking for me.
      [Julie’s Counsel]: Right.
      [McBride]: Right. As far as I'm concerned.

      . Julie asserted that the language which the trial court relied on to determine that she did not know the purpose of the meeting never actually occurred. The transcript revealed the following conversation as Julie first arrived to the meeting:

        Ray Mabus: [McBride] may be late. [Unintelligible]
      Julie Mabus: [Unintelligible] You wanna go? Is it about me?
      Ray Mabus: [Unintelligible]
      Julie Mabus: [Unintelligible] What triggered your return!?]
      Julie submitted that an audio expert, using advanced technology, determined that she never asked, "Is it about me?” Her expert transcribed this particular line as Julie asking, "You want to sit down by me? Do you want me to sit there and get you a chair? Is that close enough? (There are audible sounds of someone moving furniture around).” She also contends that the tape indicates she never asked Ray what triggered his "return,” but sought clarification as to why he had used a certain "term.”