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    Matthew M. WALKER v. The MANITOWOC COMPANY, INC., et al.
    Jim Lee Hankins v. The Manitowoc Company, Inc., et al.
    CW 16-897 consolidated with CW 16-898, CA 18-221 & CA 18-223
    Court of Appeal of Louisiana, Third Circuit.
    October 10, 2018
   Franklin Glen Shaw, Walter Leger, Jr., Walter Leger, III, Leger & Shaw, 512 East Boston Street, Covington, LA 70433, Telephone: (985) 809-6625, COUNSEL FOR: Plaintiffs/Respondents - Jim Lee Hankins and Matthew M. Walker

Michael L. Barras, Oats & Marino, 100 East Vermilion Street - # 400, Lafayette, LA 70501, Telephone: (337) 233-1100, COUNSEL FOR: Plaintiffs/Respondents - Jim Lee Hankins and Matthew M. Walker

Edward Paul Landry, Landry, Watkins, Repaske & Breaux, 211 East Main Street, New Iberia, LA 70560, Telephone: (337) 364-7626, COUNSEL FOR: Defendants/Applicants - Manitowoc Cranes, LLC, Westchester Fire Insurance Co., and The Manitowoc Company, Inc.

Michael Thomas Pulaski, Keith W. McDaniel, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC, 195 Greenbriar Boulevard - Suite 200, Covington, LA 70433, Telephone: (504) 831-0946, COUNSEL FOR: Defendants/Applicants - Manitowoc Cranes, LLC, The Manitowoc Company, Inc., and Westchester Fire Insurance Co.

Kevin M. Young, Prichard Hawkins Young, LLP, 10101 Reunion Place - Suite 600, San Antonio, TX 78216, Telephone: (210) 477-7400, COUNSEL FOR: Defendants/Applicants - The Manitowoc Company, Inc., Westchester Fire Insurance Co., and Manitowoc Cranes, LLC

Harry Joseph Philips, Jr., L. Adam Thames, Taylor, Porter, Brooks & Phillips L.L.P., 450 Laurel Street - 8th Floor, Baton Rouge, LA 70801, Telephone: (225) 387-3221, COUNSEL FOR: Defendants/Respondents - H & E Equipment Services, Inc. and Travelers Property and Casualty Company of America

John Hatch Hughes, David J. Ayo, Allen & Gooch, P. O. Box 81129, Lafayette, LA 70598-1129, Telephone: (337) 291-1290, COUNSEL FOR: Intervenor/Respondent - Bayou Welding Works, LLC

Dan Boudreaux, 9100 Bluebonnet Centre Boulevard - Suite 300, Baton Rouge, LA 70809, Telephone: (225) 293-7272, COUNSEL FOR: Intervenor/Respondent - Liberty Mutual Insurance Corporation

Jake P. Skaggs, Cozen And O'Connor, Lyondell Bassell Tower, 1221 McKinney - Suite 2900, Houston, TX 77010, Telephone: (832) 214-3900, COUNSEL FOR: Intervenor/Respondent - Allianz Global Corporate and Specialty Company

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.

THIBODEAUX, Chief Judge.

Plaintiffs, Matthew M. Walker and Jim Lee Hankins, filed separate suits seeking damages for personal injuries they sustained as a result of a worksite accident involving the alleged failure of a Manitowoc model 888 crane (crane) to hold the load upon which Plaintiffs stood, causing Plaintiffs to drop to the ground. Through multiple amended petitions, Plaintiffs sued several defendants, including the manufacturer of the crane, the Manitowoc Company, Inc., Manitowoc Cranes, LLC, and their insurer Westchester Fire Insurance Company (collectively Manitowoc). With respect to their claims against Manitowoc, Plaintiffs alleged the crane was unreasonably dangerous because of an inadequate warning and/or defect in design or construction/composition as defined by the Louisiana Products Liability Act (LPLA). Plaintiffs' employer, Bayou Welding Works, LLC (BWW), and its insurer, Allianz Global Corporate and Specialty Company (Allianz) (collectively Intervenors), intervened in the suit, seeking property damages and consequential losses arising from the same accident.

After the suits were consolidated, the parties filed opposing motions for summary judgment. The trial court denied Manitowoc's motion for summary judgment in which Manitowoc sought to have Plaintiffs'/Intervenors' claims dismissed on the grounds that the crane was not being used in a reasonably anticipated manner when the accident occurred or, alternatively, that Plaintiffs/Intervenors could not prove the existence of a defect that caused their damages. The trial court granted partial summary judgment in favor of Plaintiffs/Intervenors, finding that Manitowoc, as manufacturer of the crane, had breached its non-delegable duty to warn of defects in the crane. The trial court also denied Manitowoc's motion to dismiss and for sanctions due to spoliation of evidence.

Manitowoc sought supervisory writs from the judgment denying its motion for summary judgment, in docket number CW 16-897, and the judgment denying its motion for dismissal and spoliation sanctions, in docket number CW 16-898. It also appealed the judgment granting Plaintiffs'/Intervenors' motion for partial summary judgment in docket numbers CA 18-221 and CA 18-223. Upon Manitowoc's motion, we consolidated the appeals with its writs.

In light of the complex factual issues, we find that, on the record before us, this matter is not ripe for summary judgment on any of the claims made by the parties at this time. We further find that the trial court did not abuse its vast discretion in refusing to impose spoliation sanctions. Accordingly, we reverse the trial court's judgment granting partial summary judgment on Manitowoc's duty to warn and render judgment denying both writs.

I.

ISSUES

In its writ applications, Manitowoc raises the following issues for review:

(1) Should summary judgment be entered, dismissing Plaintiffs' claims against Manitowoc, because the manner in which Hankins and Walker were using the Manitowoc model 888 crane at the time of the incident - riding a suspended load - is a violation of BWW's safety policy, well-known OSHA standards, and other guidelines, and was a reasonably anticipated use of the crane;
(2) Should summary judgment be entered, dismissing Plaintiffs'/Intervenors' claims against Manitowoc, because the Manitowoc model 888 crane was poorly maintained and overloaded, and this was not a reasonably anticipated use of the crane;
(3) Should summary judgment be entered, dismissing Plaintiffs'/Intervenors' claim that the Manitowoc model 888 crane was unreasonably dangerous in construction or composition under the LPLA, because Plaintiffs/Intervenors failed to demonstrate an unreasonably dangerous condition in construction or composition that existed at the time the subject crane left the custody and control of Manitowoc;
(4) Should summary judgment be entered, dismissing Plaintiffs'/Intervenors' claim that the Manitowoc model 888 crane was unreasonably dangerous due to an inadequate warning under the LPLA, because Plaintiffs/Intervenors have not shown an alternative warning that would have been heeded by BWW and prevented the incident;
(5) Should summary judgment be entered, dismissing Plaintiffs'/Intervenors' claim that the Manitowoc model 888 crane was unreasonably dangerous in design under the LPLA, because Plaintiffs/Intervenors have not shown that there was a feasible alternative design that could have prevented the incident, as required for them to prove a defect in design;
(6) The trial court erred in failing to exclude inadmissible exhibits to Plaintiffs'/Intervenors' Opposition under Louisiana C.C.P. article 966(A)(4) ; and
(7) Given that Intervenor BWW possessed the drum adapter and specifically agreed to safeguard it for further inspection, should the loss, destruction or intentional refusal to produce this critical evidence, without an adequate explanation, result in the dismissal of certain claims, or at least an evidentiary presumption that the evidence would have been unfavorable to Plaintiffs and Intervenors?

On appeal, Manitowoc asks this court to consider:

(1) Should summary judgment be denied as to Plaintiffs'/Intervenors' failure to warn claims because genuine issues of material fact exist regarding the cause of the subject incident as the trial court itself recognized in denying Manitowoc's Motion for Summary Judgment;
(2) Should summary judgment be denied as to Plaintiffs'/Intervenors' failure to warn claims because genuine issues of material fact exist regarding whether the Model 888 was being used in a reasonably anticipated manner?
(3) Should summary judgment in favor of Plaintiffs'/Intervenors' failure to warn claims be denied because a genuine issue of material fact exists [ ] as to whether Manitowoc's dissemination of SB90 to its distributors was adequate under the circumstances;
(4) Should summary judgment in favor of Plaintiffs'/Intervenors' failure to warn claims be denied because Plaintiffs/Intervenors have not shown an alternative warning that would have been heeded and prevented the accident; and
(5) Did the trial court err in granting summary judgment on Manitowoc's comparative fault defense as related to prior distributors and dealers because issues of fact exist regarding the culpability of those entities for failing to properly maintain the Model 888 and/or for failing to notify the owner of the Model 888 of SB90?

II.

FACTS AND PROCEDURAL HISTORY

At the time of the accident, Plaintiffs were employed as riggers for BWW. BWW and Morris Material, Inc., entered into a contract for BWW to fabricate and assemble a port gantry crane, which is a large tower crane with a steel support tower and a horizontal boom that holds the operator's cab and the crane's operating mechanism. Port gantry cranes are generally used to offload cargo from vessels.

Although the port gantry crane was to be sold to the Port of Lake Charles, its fabrication and construction began in 2010 at BWW's facility in New Iberia, Louisiana. BWW fabricated the crane in two sections: (1) the main body tower section and (2) the boom section, which BWW planned to construct on the ground. To lift the boom and attach it to the tower section, BWW utilized the model 888 crane at issue in this case, which was manufactured by Manitowoc in 1998 and was purchased by the Bayou Companies in 2008. At the time of the accident, BWW was leasing the crane from the Bayou Companies.

On May 26, 2011, Plaintiffs were standing on the lifted boom, attempting to fasten the boom section to the tower section, when the crane allegedly malfunctioned, causing the boom to crash into the tower. As a result, Plaintiffs fell to the ground and sustained serious personal injuries. BWW also sustained property damage. Allianz, which provided builders' risk insurance coverage for BWW, paid for BWW's property damage.

Plaintiffs each filed separate product liability lawsuits against Manitowoc, alleging that the crane was unreasonably dangerous because of an inadequate warning, defective design, and/or defect in construction or composition under the LPLA. BWW and Allianz intervened in the lawsuits. The trial court subsequently consolidated the two suits.

In their amended petitions, Plaintiffs/Intervenors contended that the accident was a result of a defect relating to six bearing retainer cap screws that secured the brake and clutch assembly to the crane's hoist drum. Plaintiffs/Intervenors alleged that the cap screws had loosened, causing the drum to disengage from the crane shaft and fall, a defect Manitowoc had advised its distributors of in 2002 through the issuance of its Service Bulletin 90. A post-accident investigation of the crane revealed the six cap screws had backed out, but Manitowoc contended that the malfunction was due to neglect and poor maintenance of the crane by various distributers and previous owners as well as the unsafe and overloaded use by BWW.

In its answer and amended answers, Manitowoc raised affirmative defenses of comparative fault against several third-parties, including the Coast Crane Company (Coast Crane) (the original distributor), T & T Truck & Crane Service (the original purchaser in 1998), and Northern Crane Services, which possessed the crane from 2003-2008. Manitowoc contended that Coast Crane could bear some comparative fault because it was the original distributor and the crane was in Coast Crane's distributorship territory at the time Service Bulletin 90 was issued. Moreover, Manitowoc discussed with Coast Crane the inspection procedure required in that service bulletin while Coast Crane was working on the crane and viewing the drum clutch assembly that Plaintiffs/Intervenors claim was defective; thus, Manitowoc posited that Coast Crane's failure to make the corrections recommended by Service Bulletin 90 could cast it at fault. As to T & T Truck & Crane Service and Northern Crane Services, Manitowoc asserted they could be liable for the long-term failure of maintenance and inspection of the crane, which Manitowoc argued was a critical cause of the load drop.

Manitowoc moved for summary judgment, seeking to have Plaintiffs'/Intervenors' claims against it dismissed on the grounds that the crane was not being used in a reasonably anticipated manner at the time of Plaintiffs' accident or, alternatively, that Plaintiffs/Intervenors did not prove the existence of a defect in the crane that caused their damages. It also filed a Motion for Dismissal of Certain Claims and Causes of Action and for Spoliation Presumption. By that motion, Manitowoc sought to have Plaintiffs/Intervenors sanctioned for destroying, losing, or intentionally refusing to produce critical evidence that would have been essential to Manitowoc's defense, i.e. , the drum adapter. Manitowoc asserted that due to spoliation of evidence, certain claims by Plaintiffs/Intervenors should be dismissed and/or the jury should be instructed to apply an adverse presumption that if the missing evidence had been produced, it would have been in Manitowoc's favor.

Plaintiffs/Intervenors also sought partial summary judgment on the issue of whether Manitowoc was the manufacturer of the crane and whether Manitowoc, as the manufacturer, failed to warn of a defect in the crane as required by the LPLA. They argued that Manitowoc's failure to send Service Bulletin 90 to the owners of the crane breached its duty to warn under the LPLA, rendering the crane unreasonably dangerous. Plaintiffs/Intervenors also sought judgment dismissing Manitowoc's affirmative defenses against its distributors and previous owners of the crane, arguing that Manitowoc could not delegate its duty to warn.

Following a hearing, the trial court denied Manitowoc's motion for summary judgment. In its written reasons, the trial court found the following genuine issues of material fact existed: (1) "whether the crane was being used in a reasonably anticipated manner at the time of the incident"; (2) whether there was an unreasonably dangerous condition in the construction or composition of the crane that proximately caused Plaintiffs'/Intervenors' damages; (3) whether there was an unreasonably dangerous condition in the design of the crane that proximately caused Plaintiffs'/Intervenors' damages; and (4) whether "Manitowoc failed to provide an adequate warning, and this failure caused [Plaintiffs'/Intervenors'] damages."

In a separate judgment, the trial court denied Manitowoc's motion pertaining to spoliation evidence. The trial court also granted Plaintiffs'/Intervenors' motion for partial summary judgment, finding that Manitowoc was the manufacturer of the crane and that Manitowoc had breached its non-delegable duty to warn of defects in the crane. Finding that the various distributors and owners of the crane did not owe a duty to warn, the trial court dismissed Manitowoc's affirmative defenses as to those parties. The trial court designated both judgments immediately appealable under La.Code Civ.P. art. 1915(B).

Manitowoc then filed two separate writ applications with this court, seeking review of the ruling whereby the trial court denied its motion for summary judgment as well as review of the trial court's denial of Manitowoc's motion for spoliation sanctions. This court signed an order consolidating the two writ applications. Manitowoc also filed two separate appeals from the trial court's judgment granting Plaintiffs'/Intervenors' motion for partial summary judgment on their failure to warn claim. In the interest of judicial efficiency and economy, this court granted Manitowoc's motion to consolidate its writ applications with the appeals. All these matters are now before this court.

III.

STANDARD OF REVIEW

An appellate court reviews a motion for summary judgment de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. Therefore, just like the trial court, we are tasked with determining whether "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

A genuine issue of material fact exists "if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue." Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 (quoting W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact , 99 F.R.D. 465, 481 (1983) ). In determining whether a material factual dispute exists, a court should consider all of the record evidence but must refrain from determining the merits, making credibility determinations, and evaluating testimony. Id. All doubts are resolved in favor of the non-moving party. Id.

IV.

LAW AND DISCUSSION

At the center of these product liability actions is the LPLA, which provides "the exclusive theories of liability for manufacturers for damage caused by their products." La.R.S. 9:2800.52. To successfully bring a products liability action under the LPLA, a plaintiff must establish four elements: (1) the defendant is a manufacturer of the product; (2) the claimant's damage was "proximately caused by a characteristic of the product"; (3) this characteristic "renders the product unreasonably dangerous"; and (4) the claimant's "damage arose from a reasonably anticipated use of the product by the claimant" or someone else. La.R.S. 9:2800.54(A). Under the LPLA,

A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55 ;
(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56 ;
(3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57 ; or
(4) The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in R.S. 9:2800.58.

La.R.S. 9:2800.54(B).

While the characteristic that renders the product unreasonably dangerous in construction/composition or in design must exist when the product leaves the manufacturer's custody, the characteristic that renders the product unreasonably dangerous for failure to adequately warn or conform to a warranty "must exist at the time the product left the control of its manufacturer or result from a reasonably anticipated alteration or modification of the product." La.R.S. 9:2800.54(C). The burden is on the claimant to prove these elements. La.R.S. 9:2800.54(D).

In their motions for summary judgment, the parties herein argue that each is entitled to judgment as a matter of law on certain elements of the claims. Manitowoc argues that it is entitled to judgment on the elements of (1) reasonably anticipated use; (2) unreasonably dangerous in construction or composition; (3) unreasonably dangerous due to an inadequate warning; and (4) unreasonably dangerous in design. Plaintiffs/Intervenors, on the other hand, argue they are entitled to judgment on the element of unreasonably dangerous due to an inadequate warning.

To succeed on their motions, the parties have to prove there is no genuine issue of material fact as to these elements, meaning that, even viewing the evidence in the light most favorable to the non-moving party, no reasonable factfinder could find for the non-moving party.

Smith , 639 So.2d 730. Having reviewed the record, we cannot say that any of the parties have demonstrated a lack of evidence as to each of these elements such that no reasonable factfinder could find in favor of the non-moving parties. We turn now to a discussion of each element and the record evidence pertaining thereto.

Reasonably Anticipated Use

"Under the LPLA, a manufacturer is liable only for those uses it should reasonably expect of an ordinary consumer." Butz v. Lynch , 99-1070, p. 7 (La.App. 1 Cir. 6/23/00), 762 So.2d 1214, 1218, writ denied , 00-2660 (La. 11/17/00), 774 So.2d 980. "Reasonably anticipated use" is defined under the LPLA as "a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances." La.R.S. 9:2800.53(7). "The standard for determining a reasonably anticipated use is an objective one (an ordinary person in the same or similar circumstances)." Butz , 762 So.2d at 1218. And "what constitutes a reasonably anticipated use is ascertained from the point of view of the manufacturer at the time of manufacture," thus precluding "the factfinder from using hindsight." Payne v. Gardner , 10-2627, p. 3 (La. 2/18/11), 56 So.3d 229, 231.

In its motion for summary judgment, Manitowoc asserts that Plaintiffs' claims should be dismissed because the manner in which they were using the crane at the time of the incident, i.e. , riding a "suspended load," was not a reasonably anticipated use. The record evidence establishes that a suspended load is a free-floating object that is held aloft by a crane. According to Manitowoc's evidence, the riding of a suspended load without fall protection was a violation of the Occupational Safety and Health Administration (OSHA) standards, BWW's operating procedures, the crane's Operator's Manual, and accepted industry practice in the crane industry. Such a use, Manitowoc maintains, was obviously dangerous and was well known by BWW's employees as a violation of OSHA standards.

Plaintiffs, however, presented evidence that the boom was no longer classified as a "suspended load" because the boom was pinned and connected to a super structure, i.e. , the tower. Although Manitowoc disregards this evidence as "seemingly contrived" and based on regulations applicable to ironworkers, we find this evidence presented by Plaintiffs' expert, William Clifford Dickinson, precludes summary judgment on this issue.

Manitowoc also argues that the manner in which BWW used the crane was not a reasonably anticipated use because the crane was overloaded and poorly maintained as per the testimony of its experts in the crane industry, Bradley D. Closson and Michael Parnell. But again, Plaintiffs/Intervenors presented factual evidence, through the testimony of the crane operator, Christopher S. Alleman, disputing whether the crane was overloaded at the time of the accident. They further submitted evidence of the crane's annual inspections, which were required by OSHA and performed by independent OSHA-certified inspectors, as well as testimony that the crane was regularly inspected by BWW and the Bayou Companies' crane operators, none of which inspections revealed poor maintenance. This evidence as well raises genuine issues of material fact which likewise precludes summary judgment on this element.

Unreasonably Dangerous

As stated above, a product may be deemed unreasonably dangerous in any one of four ways: (1) in construction or composition; (2) in design; (3) for failure to provide an adequate warning; or (4) for failure to conform to an express manufacturer's warranty. La.R.S. 9:2800.54(B). Each is a distinct possible theory of recovery governed by a separate statute as set forth in La.R.S. 9:2800.54(B).

While Manitowoc argues that Plaintiffs/Intervenors lack sufficient evidence to prove that the crane was unreasonably dangerous in construction, warning, and design, Plaintiffs/Intervenors argue that there is no genuine issue of material fact that Manitowoc failed to warn the crane owners of a defect with the cap screws, rendering the crane unreasonably dangerous under their theory of failure to warn. However, we find there are genuine issues of material fact regarding whether the product was unreasonably dangerous with respect to all three theories.

1. Construction or Composition

Pursuant to La.R.S. 9:2800.55, "[a] product is unreasonably dangerous in construction or composition if, at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer." "[W]hether a defect is unreasonably dangerous in ... composition is a question of fact." Morris v. United Servs. Auto. Ass'n , 32,528, p. 8 (La.App. 2 Cir. 2/18/00), 756 So.2d 549, 557.

Manitowoc argues that Plaintiffs/Intervenors lack sufficient evidence upon which they could demonstrate an unreasonably dangerous condition in construction or composition in existence when the crane left Manitowoc's custody and control. However, Plaintiffs/Intervenors argue that, according to the deposition testimony of Michael Brunet, Manitowoc's former Director of Product Safety, Manitowoc's plans and specifications called for Loctite 242 to be "applied" to all six cap screws. Plaintiffs/Intervenors claim that a microscopic examination of the screws after the accident apparently revealed no Loctite on the threads. Rather, the Loctite 242 had collected at the top and bottom of five screws; the sixth screw was completely devoid of Loctite. According to Plaintiffs'/Intervenors' expert, Dr. Thomas C. Shelton, P.E., the unintended load drop was proximately caused by the fact that Loctite coverage for the cap screws deviated in a material way from Manitowoc's specifications.

Given the lack of evidence in the crane history file, produced by Manitowoc in discovery, that the cap screws were ever replaced, Plaintiffs/Intervenors argue that there is ample evidence that the cap screws were the original cap screws that Manitowoc installed; therefore, there is ample evidence that the crane was unreasonably dangerous in construction or composition when it left Manitowoc's control. We find this evidence is sufficient to raise a genuine issue of material fact as to this theory.

2. Failure to Warn

In a failure to warn case, a product is considered unreasonably dangerous if the claimant can prove that "at the time the product left the manufacturer's control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product." La.R.S. 9:2800.57(A). The LPLA defines "[a]dequate warning" as:

a warning or instruction that would lead an ordinary reasonable user or handler of a product to contemplate the danger in using or handling the product and either to decline to use or handle the product or, if possible, to use or handle the product in such a manner as to avoid the danger for which the claim is made.

La.R.S. 9:2800.53(9). Moreover, the LPLA imposes a continuing duty on the manufacturer to warn the users and handlers of its product of defects the manufacturer learns of after the product leaves its custody:

A manufacturer of a product who, after the product has left his control, acquires knowledge of a characteristic of the product that may cause damage and the danger of such characteristic, or who would have acquired such knowledge had he acted as a reasonably prudent manufacturer, is liable for damage caused by his subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.

La.R.S. 9:2800.57(C).

At issue in the present case is Manitowoc's continuing duty to warn of a defect that it discovered in its model 888 cranes after the subject crane left its control in 1998-a defect that was documented in Service Bulletin 90. As explained in Mr. Brunet's deposition, Manitowoc investigated another model 888 crane located in Colorado that suffered a similar malfunction, an unintended load drop, on July 25, 2002. In its investigation, Manitowoc learned that the cap screws could loosen and cause damage to the clutch assembly which could, in turn, result in load drops when the crane was operating in freefall mode. Thereafter, Mr. Brunet immediately drafted Service Bulletin 90 to warn its distributors. As Mr. Brunet explained, service bulletins were the method that Manitowoc used to communicate service issues involving its cranes.

Service Bulletin 90 advised distributors that loose cap screws could cause damage to the clutch assembly and requested that all model 888 cranes equipped with freefall be inspected by a Manitowoc qualified service technician. If any crane was found to have loose cap screws, the screws should have been removed, applied with Loctite 242, and re-tightened to fifty-three foot-pounds. Attached to the bulletin was an inspection form that was to be completed by the distributor and returned to Manitowoc within thirty days from the date the bulletin was issued. The inspection report would then be placed in the crane history file, a service and ownership history file that Manitowoc maintained for all the cranes that it sold.

At the time that Service Bulletin 90 was issued, Manitowoc identified forty-two cranes that were manufactured with freefall installed by Manitowoc. Manitowoc sent Service Bulletin 90 to its distributors via facsimile in October 2002. Thereafter, Manitowoc relied upon its distributors to identify the model 888 cranes that the distributors had sold and to contact the owners of those cranes to both warn the owners and to inspect and, if need be, perform the recommended repair.

It is undisputed that the crane at issue was subject to Service Bulletin 90 and that the service bulletin was not sent to the owners. What is disputed is whether Manitowoc breached its duty to warn by issuing its bulletin to its distributors, not the owners. Plaintiffs/Intervenors moved for summary judgment on this issue, and the trial court granted their motion, finding the warning was not sufficient because it was not sent to the owners. Manitowoc also sought summary judgment, arguing that Plaintiffs/Intervenors failed to show anything related to Service Bulletin 90 caused the load drop and resulting damages that were sustained in this case.

Regardless, Manitowoc argued that Plaintiffs/Intervenors failed to present an alternative warning and means of ensuring compliance with any such warning that would have avoided the incident at issue in this case. Once again, we find that the factual disputes in this matter preclude summary judgment on this theory of recovery.

"Whether a particular warning or instruction is adequate is a question for the trier of fact." Jack v. Alberto-Culver USA, Inc. , 06-1883, p. 5 (La. 2/22/07), 949 So.2d 1256, 1259. Several factors come into play in determining the adequacy of the warning, namely: (1) "the severity of the danger," (2) the likelihood of successful communication of the warning to foreseeable consumers, (3) "the intensity and form of the warning," and (4) "the cost of improving the strength or mode of the warning." Bloxom v. Bloxom , 512 So.2d 839, 844 (La.1987). It stands to reason that this fact-intensive inquiry is both case-specific and industry-specific as the duty itself is one of "a reasonably prudent manufacturer." See La.R.S. 9:5800.57(C).

In granting summary judgment, the trial court relied upon this court's holding in Marks v. OHMEDA, Inc. , 03-1446, p. 9 (La.App. 3 Cir. 3/31/04), 871 So.2d 1148, 1155, writs denied , 04-1617, 04-1653 (La. 10/8/04), 883 So.2d 1019, 1020, that "the duty established by La.R.S. 9:2800.57(C) is a duty placed directly upon the manufacturer. It cannot be delegated." Marks , however, is clearly distinguishable from the instant case, particularly in that the factfinder reached its conclusion as to the insufficiency of the warning after a six-day bench trial on the merits. This matter is before the court on summary judgment.

Moreover, the manufacturer in Marks published its warning in a trade publication-a medical journal-but took no direct action to notify its users. The record evidence in the present matter establishes that Manitowoc issued its warning to its distributors, relying, as was its historical practice, on its distributors to not only inform their buyers/owners, but also to inspect and repair the potential defect. Whether that procedure was reasonable and sufficient in this circumstance under the inquiry recited above is a question of fact that we find must be determined by the factfinder and cannot be resolved on summary judgment.

Nevertheless, because the factfinder could reasonably determine, as the trial court herein did, that Manitowoc breached its duty by failing to send any notice/warning directly to the owners, we further find no merit at this time in Manitowoc's argument on Plaintiffs'/Intervenors' failure to establish an alternative warning. Finally, we note that Plaintiffs/Intervenors, through their experts' opinions, have produced sufficient evidence for a reasonable factfinder to conclude that the alleged defect for which Manitowoc may have had a duty to warn-the cap screw assembly-could have caused the injuries and damages in this matter.

Therefore, none of the parties are entitled to summary judgment on this theory of recovery. Moreover, as a genuine issue of material fact exists on the adequacy of Manitowoc's warning procedure under these circumstances, Plaintiffs/Intervenors are not entitled at this time to judgment on Manitowoc's affirmative defenses as to its distributors as well as the crane's previous owners.

3. Design

Louisiana Revised Statutes 9:2800.56 defines a product that is unreasonably dangerous in design as follows:

A product is unreasonably dangerous in design if, at the time the product left its manufacturer's control:
(1) There existed an alternative design for the product that was capable of preventing the claimant's damage; and
(2) The likelihood that the product's design would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.

As with the previous theories, the question of whether a product is unreasonably dangerous in design is a question of fact. Morris , 756 So.2d 549.

Manitowoc argues it is entitled to summary judgment on this theory as well because Plaintiffs/Intervenors have failed to show a feasible alternative design that could have prevented the incident. However, through the reports and depositions of their experts, namely Dr. Shelton, Russ Rasnic, P.E., and G. Fred Liebkemann IV, P.E., Plaintiffs/Intervenors have put forth evidence of four alternative designs, which their experts opine would have substantially reduced the chances of their injuries and damages. We find this evidence is also sufficient to raise a genuine question of material fact and withstand summary judgment as to this theory.

In light of all the genuine issues of material fact that exist on this record, we find summary judgment is not appropriate at this time. Accordingly, we reverse the trial court's judgment granting partial summary judgment on Manitowoc's failure to warn and its affirmative defenses. On the showing made, we further find no abuse of discretion in the trial court's refusal to strike Plaintiffs'/Intervenors' Exhibits 6, 9, 10, 14, 16, 23, 31, 34, and 37. Therefore, we likewise deny Manitowoc's writ application in docket number CW 16-897 in its entirety.

Spoliation Sanctions

The sole remaining issue before this court is Manitowoc's motion for spoliation sanctions. As our brethren in the first circuit recently explained:

Spoliation of the evidence is an evidentiary doctrine that refers to an intentional destruction of evidence for the purpose of depriving the opposing parties of its use in pending or anticipated litigation....
A trial court has the authority to impose sanctions on a party for spoliation of evidence and other discovery misconduct under both its inherent power to manage its own affairs and the discovery articles provided in the Louisiana Code of Civil Procedure. Under La. C.C.P. art. 1471, when a party refuses or is unable to comply with a discovery order, the trial court in a pending action "may make such orders in regard to the failure as are just," thereby granting the trial court broad discretion to impose a range of sanctions. La. C.C.P. art. 1471(A) ; see also Fed.R.Civ.P. 37. Even without a discovery order, La. C.C.P. art. 191 authorizes trial courts to impose sanctions for spoliation of the evidence, since the destruction of evidence clearly interferes with the court's ability to fairly administer justice. Specifically, La. C.C.P. art. 191 provides that a trial court "possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law."
....
The range of possible sanctions include dismissing a case, rendering a default judgment, striking pleadings, striking a claim or defense, and excluding evidence. See La. C.C.P. art. 1471 ; Spoliation of Evidence at 61 & n. 5. A determination as to what sanction is appropriate in a particular case is a matter within the province of the trial court, depending upon the facts present. As with other evidentiary and discovery rulings, the trial court has much discretion in deciding which sanction, if any, to impose. Cf. Hutchinson v. Westport Insurance Corporation , 04-1592 (La. 11/8/04), 886 So.2d 438, 440 (per curiam); also see Adkins v. Wolever , 554 F.3d 650, 653 (6th Cir.2009). The appellate standard of review for a trial court's evidentiary ruling on this issue is whether the trial court abused its broad discretion. See BancorpSouth Bank , 13-1396 at p. 22, 155 So.3d at 641 ; Paradise v. Al Copeland Investments, Inc. , 09-0315 (La.App. 1st Cir. 9/14/09), 22 So.3d 1018 ; Everhardt v. Louisiana Department of Transportation and Development , 07-0981 (La.App. 4th Cir. 2/20/08), 978 So.2d 1036, 1045.

Carter v. Hi Nabor Super Market, LLC , 13-529, pp. 6-9 (La.App. 1 Cir. 12/30/14), 168 So.3d 698, 703-705, writ denied , 15-190 (La. 4/17/15), 168 So.3d 399 (emphasis in original).

Manitowoc argues that all of the elements necessary for dismissal of certain causes of action and a claim for an adverse inference are present here because Plaintiffs/Intervenors have destroyed, lost, or intentionally refused to produce evidence within their control without an adequate explanation. The evidence to which Manitowoc refers is the drum adapter, which Manitowoc emphasizes was "the very component part of the crane to which the retaining screws were mated" and "could very well be the Rosetta Stone of this matter."

However, Manitowoc has presented no evidence that Plaintiffs'/Intervenors' employees or representatives intentionally discarded or destroyed the drum adaptor. Rather, the evidence suggests that the drum adapter was one of the many items that were stolen out of the Bayou Companies' warehouse on or about February 28, 2014. The evidence further shows that a former employee of the Bayou Companies pled guilty to the theft. In light of this evidence, we find no abuse of discretion in the trial court's denial of Manitowoc's motion for spoliation sanctions as Manitowoc has not established that Plaintiffs/Intervenors intentionally destroyed the drum adaptor, which Manitowoc even concedes it inspected, at least visually, on a previous occasion. Therefore, we likewise deny Manitowoc's writ in docket number CW 16-898, finding no abuse of the trial court's broad discretion.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting partial summary judgment in favor of Plaintiffs/Intervenors is reversed. Writs are denied.

Costs of this appeal are assessed equally to Defendant/Appellant and Plaintiffs/Intervenors/Appellees.

REVERSED; WRITS DENIED.

      The claims against one service provider, H & E Equipment Services, Inc. (H & E), are discussed in the companion case, Matthew M. Walker v. The Manitowoc Company, Inc., et al. , consolidated with Jim Lee Hankins v. The Manitowoc Company, Inc., et al. , 17-1014, 18-186 (La.App. 3 Cir.), --- So.3d ----. These claims will not be discussed further in this opinion. All other defendants were either dismissed or settled with Plaintiffs/Intervenors, except for Manitowoc and H & E.

      Liberty Mutual Insurance Corporation (Liberty), the workers' compensation carrier for Plaintiffs' employer, intervened in the lawsuits as well, adopting the allegations set forth by Plaintiffs pursuant to the Louisiana Workers' Compensation Act. Liberty adopts Plaintiffs' position in its brief to this court.

      Coast Crane has since been dissolved through bankruptcy proceedings.

      The two-letter title, P.E., stands for licensed professional engineer.

      In its application, Manitowoc merely lists the exhibits after first stating that it objected to them because they did not conform to the requirements of La.Code Civ.P. art. 966(A)(4). Without argument, Manitowoc then simply concludes: "The trial court erred in failing to strike these documents." The exhibits are as follows: (1) Exhibit 6 - OSHA inspection tags; (2) Exhibit 9 - May 26, 2011 JSA; (3) Exhibit 10 - Manitowoc Load Capacity Chart; (4) Exhibit 14 - Rocky Mountain Investigative File; (5) Exhibit 16 - List of Model 888's with freefall; (6) Exhibit 23 - Toby Dugas Diagram; (7) Exhibit 31 - 21722 OSHA certificate; (8) Exhibit 34 - Crane History File; and (9) Exhibit 37 - Freefall drawing showing Loctite specifications.


source: Caselaw Access Project

license: Public Domain

text:
    Matthew M. WALKER v. The MANITOWOC COMPANY, INC., et al.
    Jim Lee Hankins v. The Manitowoc Company, Inc., et al.
    17-1014 18-186
    Court of Appeal of Louisiana, Third Circuit.
    October 10, 2018
   Franklin Glen Shaw, Leger & Shaw, 512 East Boston Street, Covington, LA 70433, Telephone: (985) 809-6625, COUNSEL FOR: Plaintiffs/Appellants - Jim Lee Hankins and Matthew M. Walker

Michael L. Barras, Oats & Marino, 100 East Vermilion Street - # 400, Lafayette, LA 70501, Telephone: (337) 233-1100, COUNSEL FOR: Plaintiffs/Appellants - Jim Lee Hankins and Matthew M. Walker

Edward Paul Landry, Landry, Watkins, Repaske & Breaux, 211 East Main Street, New Iberia, LA 70560, Telephone: (337) 364-7626, COUNSEL FOR: Defendant/Appellee - Manitowoc Cranes, LLC

J. Frederick Kessenich, Daigle Fisse & Kessenich PLC, 227 Highway 21, Madisonville, LA 70447, Telephone: (985) 871-0800, COUNSEL FOR: Defendant/Appellee - Starr Indemnity and Liability Insurance Company

John Ashley Moore, Taylor, Porter, Brooks & Phillips L.L.P., P. O. Box 2471, Baton Rouge, LA 70821-2471, Telephone: (225) 387-3221, COUNSEL FOR: Defendants/Appellees - Travelers Property and Casualty Company of America and H & E Equipment Services, Inc.

William H. Parker, III, John Hatch Hughes, Allen & Gooch, P. O. Box 81129, Lafayette, LA 70598, Telephone: (337) 291-1390, COUNSEL FOR: Intervenor/Appellant - Bayou Welding Works, LLC

Michael Thomas Pulaski, Keith W. McDaniel, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC, 195 Greenbriar Boulevard - Suite 200, Covington, LA 70433, Telephone: (504) 831-0946, COUNSEL FOR: Defendants/Appellees - Manitowoc Cranes, LLC, Westchester Fire Insurance Co., and The Manitowoc Company, Inc.

Douglas William Truxillo, Onebane Law Firm, P. O. Drawer 3507, Lafayette, LA 70502-3507, Telephone: (337) 237-2660, COUNSEL FOR: Defendant/Appellee - T & T Truck & Crane Service, Inc.

Steven Bernard Rabalais, Rabalais & Hebert, 701 Robley Drive - # 210, Lafayette, LA 70503, Telephone: (337) 981-0309, COUNSEL FOR: Defendant/Appellee - Mike Evans Crane Service LLC

Dan Boudreaux, 9100 Bluebonnet Centre Boulevard - Suite 300, Baton Rouge, LA 70809, Telephone: (225) 293-7272, COUNSEL FOR: Intervenor/Appellee - Liberty Mutual Insurance Company

Carl William Robicheaux, 2014 West Pinhook Road - Suite # 503, Lafayette, LA 70508, Telephone: (337) 235-7888, COUNSEL FOR: Defendant/Appellee - Northern Crane Service Inc.

Paul J. Politz, Taylor, Wellons, Politz & Duhe, 1515 Poydras Street - Suite 1900, New Orleans, LA 70112, Telephone: (504) 525-9888, COUNSEL FOR: Defendant/Appellee - Leslie Charles Bordelon

Jake P. Skaggs, Cozen & O'Connor, 1221 McKinney - Suite 2900, Houston, TX 77010, Telephone: (832) 214-3900, COUNSEL FOR: Intervenors/Appellants - Allianz Global Corporate and Specialty Company, Bordelon Equip Co., and Leslie Charles Bordelon

Stanwood R. Duval, Jr., In Proper Person, 101 Wilson Avenue, Houma, LA 70364, Defendant/Appellee

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.

THIBODEAUX, Chief Judge.

Plaintiffs, Matthew M. Walker and Jim Lee Hankins, filed separate suits, seeking damages for personal injuries they sustained as a result of a worksite accident involving the alleged failure of a Manitowoc model 888 crane (crane) to hold the load upon which Plaintiffs stood, causing Plaintiffs to drop to the ground. Through multiple amended petitions, Plaintiffs sued the manufacturer of the crane, the Manitowoc Company, Inc., Manitowoc Cranes, LLC, and their insurer, Westchester Fire Insurance Company (collectively Manitowoc), alleging the crane was unreasonably dangerous because of an inadequate warning and/or defect in design or construction/composition as defined by the Louisiana Products Liability Act (LPLA). Plaintiffs also sued H & E Equipment Services, Inc., and its insurer, Travelers Property and Casualty Company of America (collectively H & E), among other various owners, custodians, servicers, and inspectors of the crane, alleging that H & E failed to properly service or inspect the crane and that H & E either knew or should have known of the defect in the crane and failed to exercise reasonable care in preventing the accident. Plaintiffs' employer, Bayou Welding Works, LLC (BWW), and its insurer, Allianz Global Corporate and Specialty Company (Allianz) (collectively Intervenors), intervened in the suit, seeking property damages and consequential losses arising from the same accident. After the suits were consolidated, H & E moved for summary judgment, which the trial court granted.

Plaintiffs/Intervenors filed this "protective appeal" to reverse the trial court's judgment granting H & E's motion for summary judgment, but only if this court reverses the partial summary judgment granted to Plaintiffs/Intervenors on their failure to warn claim against Manitowoc in the companion case, Matthew M. Walker v. The Manitowoc Company, Inc., et al. , consolidated with Jim Lee Hankins v. The Manitowoc Company, Inc., et al. , 16-897, 16-898, 18-221, 18-223 (La.App. 3 Cir. 10/10/18), 259 So.3d 465, 2018 WL 4905076 (companion case). After reviewing the record evidence, we affirm the trial court's grant of summary judgment in favor of H & E.

I.

ISSUES

On appeal, Plaintiffs/Intervenors ask this court to consider whether:

the trial court erred in granting summary judgment to H & E and Travelers in the event this court distinguishes, finds inapplicable, or otherwise overrules Marks [v. OHMEDA, Inc. , 03-1446 (La.App. 3 Cir. 3/31/04), 871 So.2d 1148, writs denied , 04-1617, 04-1653 (La. 10/8/04), 883 So.2d 1019, 1020 ].

II.

FACTS AND PROCEDURAL HISTORY

As discussed more fully in the companion case, on May 26, 2011, Plaintiffs, who were employed as riggers for BWW, sustained injuries when the crane at issue allegedly malfunctioned and dropped the boom upon which they stood, causing Plaintiffs to fall to the ground. At the time of the accident, BWW was leasing the crane from the Bayou Companies, which had purchased the crane in 2008 from a previous owner. BWW also sustained property damage, and Allianz, which provided builders' risk insurance coverage for BWW, paid for BWW's damage. Plaintiffs each filed separate product liability lawsuits against Manitowoc, alleging that the accident was caused by a defect in the crane's brake/clutch assembly. Specifically, they referred to six bearing retainer cap screws that secured the brake and clutch assembly to the crane's hoist drum. Plaintiffs/Intervenors alleged that the cap screws had loosened, causing the drum to disengage from the crane shaft and fall, a defect of which Manitowoc had advised its distributors in 2002 through the issuance of its Service Bulletin 90.

Plaintiffs/Intervenors also named as defendants various owners, servicers, and inspectors of the crane, including H & E. Plaintiffs alleged that H & E failed to properly service the crane and that H & E, a Manitowoc distributor, knew or should have known of the manufacturing defect in the crane and failed to warn or advise the Bayou Companies, the owner of the crane, of such defects prior to the accident. BWW and Allianz intervened in the lawsuits, and the trial court subsequently consolidated the two suits.

H & E twice moved for summary judgment, arguing that H & E had no duty to warn of manufacturing defects under the LPLA and that its one-time, limited service call on the crane prior to the collapse did not create a duty owed to Plaintiffs or Intervenors to investigate or warn of the alleged defect. Although it denied the initial motion as premature, the trial court subsequently granted H & E's second motion for summary judgment finding that, based on the undisputed facts and evidence, H & E did not breach a legal duty in this instance. In so holding, the trial court relied, in part, upon this court's holding in Marks that the duty to warn of manufacturing defects found in the LPLA cannot be delegated by the manufacturer, Manitowoc. The trial court reasoned:

For the reasons I will talk about later [in granting partial summary judgment to Plaintiffs/Intervenors on Manitowoc's duty to warn of manufacturing defects], I do think this is a duty that was -- is [owed] by Manitowoc. I don't think they can delegate that duty to the distributor. However, [H & E] was not the distributor of [the crane]. Th[e] distributor[, Coast Crane Company,] was the distributor where the crane was found in 2002 when they had a load [ ] drop which ... resulted in Service Bulletin 90. The repair that this H & E did [on this crane] was 15 some odd months before the incident, totally unrelated. Mr. Bordelon [of the Bayou Companies] and his people have -- that A through Z, did not request [H & E] to do anything with things that were the subject of Service Bulletin 90. I think it is clear [from] the reasons stated by H & E in their memorandum in support thereof that they're out at this point. Evidence is sufficient to say that as a matter of law they are entitled to summary judgment having not owing a duty to Bayou at that particular time.

Plaintiffs/Intervenors have now filed this appeal "protectively," asking this court to reverse the trial court's judgment sustaining H & E's motion for summary judgment, but only if this court reverses the trial court's judgment sustaining Plaintiffs'/Intervenors' motion for partial summary judgment on Manitowoc's duty to warn. Having found genuine issues of material fact exist on the record as to whether Manitowoc breached its duty to warn of post-manufacturing defects under the LPLA, we reversed the partial summary judgment granted in favor of Plaintiffs/Intervenors in the companion case. Therefore, we will now entertain Plaintiffs'/Intervenors' appeal in this matter.

III.

STANDARD OF REVIEW

An appellate court reviews a motion for summary judgment de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. Therefore, just like the trial court, we are tasked with determining whether "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

As has been long established on summary judgment:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(D)(1).

A genuine issue of material fact exists "if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue." Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 (quoting W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact , 99 F.R.D. 465, 481 (1983) ). In determining whether a material factual dispute exists, a court should consider all of the record evidence but must refrain from determining the merits, making credibility determinations, and evaluating testimony. Id. All doubts are resolved in favor of the non-moving party. Id.

IV.

LAW AND DISCUSSION

Under Louisiana's duty-risk analysis, which courts employ to determine liability under our general negligence scheme, a plaintiff must prove five elements:

(1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause in fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element).

Lemann v. Essen Lane Daiquiris, Inc. , 05-1095, p. 7 (La. 3/10/06), 923 So.2d 627, 633. Given its burden of proof under La.Code Civ.P. art. 966(D)(1), a defendant is entitled to summary judgment if there is no factual support on the record to support even just one of these five elements.

In its motion for summary judgment, H & E points out that its lone connection to this case was a single, unrelated electrical repair on the crane conducted on February 22, 2010, approximately fifteen months before the accident. At that time, an H & E technician diagnosed a power connection problem with the crane's computer and installed a new CPU board to remedy the electrical failure in the crane's cab. It is undisputed that this repair had nothing to do with the alleged brake/clutch assembly malfunction that Plaintiffs/Intervenors allege caused the accident at issue. As no fact or expert witness has testified or opined that H & E's lone, electrical repair, over a year before the crane collapsed, had any causal connection with the accident, H & E asserts that the Plaintiffs/Intervenors could not prove their allegations against H & E based on its failure to exercise reasonable care in conducting this lone repair. After reviewing the record, we agree and find no error in the trial court's judgment granting summary judgment as to Plaintiffs'/Intervenors' allegations of negligence relating to this lone repair.

At issue in the allegations that H & E knew or should have known of a manufacturing defect in the crane and failed to warn or advise the Bayou Companies of such defects prior to the accident is the potential defect that Manitowoc documented in Service Bulletin 90. As explained in the companion case, Manitowoc investigated another model 888 crane located in Colorado that suffered a similar malfunction, an unintended load drop, on July 25, 2012. In its investigation, Manitowoc learned that the cap screws could potentially loosen and cause damage to the clutch assembly which could, in turn, result in load drops when the crane was operating in freefall mode. Thereafter, Michael Brunet, Manitowoc's former Director of Product Safety, immediately drafted Service Bulletin 90 to warn its distributors. As Mr. Brunet explained, service bulletins were the method that Manitowoc used to communicate service issues involving its cranes.

Service Bulletin 90 provided that loose cap screws could cause damage to the clutch assembly and requested that all model 888 cranes equipped with freefall be inspected by a Manitowoc-qualified service technician. If any crane was found to have loose cap screws, the screws should have been removed, applied with Loctite 242, and re-tightened to fifty-three foot-pounds. Attached to the bulletin was an inspection form that was to be completed by the distributor and returned to Manitowoc within thirty days from the date the bulletin was issued.

At the time that Service Bulletin 90 was issued, Manitowoc identified forty-two cranes that were manufactured with freefall installed by Manitowoc. Manitowoc sent Service Bulletin 90 to its distributors via facsimile in October 2002. Thereafter, Manitowoc relied upon its distributors to identify the model 888 cranes that they had sold and to contact the owners of those cranes to both warn the owners and to inspect and, if need be, perform the recommended repairs.

It is undisputed that the crane at issue was subject to Service Bulletin 90 and that H & E, a Manitowoc distributor, knew of the defect, having received Service Bulletin 90. What is disputed in this matter is whether H & E owed a duty to the Bayou Companies, and in turn Plaintiffs/Intervenors, to warn of the potential defect. In granting summary judgment in H & E's favor, the trial court relied upon this court's holding in Marks v. OHMEDA, Inc. , 871 So.2d at 1155, that "the duty established by La.R.S. 9:2800.57(C) is a duty placed directly upon the manufacturer. It cannot be delegated." Therefore, the trial court found that H & E owed no duty to Plaintiffs/Intervenors to warn of the defect.

However, in the companion case, we distinguished Marks on several grounds: (1) the trial court in Marks reached its factual conclusion on the insufficiency of the warning following a six-day bench trial, whereas the companion case was before the court on summary judgment and (2) the Marks manufacturer merely published its warning in a medical journal having taken no direct action to notify its users, whereas Manitowoc issued its warning to its distributors, relying, as was its historical practice, on its distributors to then inform their buyers/owners as well as to inspect and repair any potential defect. Having found genuine issues of material fact exist as to whether Manitowoc's warning procedure was reasonable in these circumstances under the LPLA, we reversed summary judgment as to this issue.

In this appeal, Plaintiffs/Intervenors argue that, because H & E had actual notice from Manitowoc that a critical part of the crane was defective and it serviced the crane after it was transported to south Louisiana, H & E, as a distributor, owed a heightened duty to ensure that the defective cap screws had been fixed. Under their theory, H & E had a heightened duty to: (1) inspect the cap screws as detailed in Service Bulletin 90; (2) ensure that the defective cap screws had been corrected; and (3) advise its customer (the Bayou Companies) of the existence of Service Bulletin 90 and the need to have the cap screws inspected. As H & E indisputably failed to perform any of these tasks, Plaintiffs/Intervenors assert that H & E breached its duty and is solidarily liable for the damages that arose from its breach.

Plaintiffs/Intervenors also argue that it is not significant that H & E was not the original distributor of the crane or that the crane was not located in H & E's distributorship area at the time Service Bulletin 90 was issued. Rather, they contend that once H & E received notice that the crane was in its territory, it assumed the obligation as the licensed dealer to ensure that all the warranty work and service bulletin inspections were performed.

H & E, however, contends that it had no legal or contractual duty to warn of any alleged defect in the crane. Besides its single, limited interaction with the crane, H & E notes that it is undisputed that no one from the Bayou Companies ever complained to H & E of problems with the freefall mechanism. And according to Mr. Brunet, Service Bulletin 90, issued some eight years prior to H & E's first interaction with the crane, would not have been within the scope of the H & E's technician's repairs unless the Bayou Companies or someone affiliated with the crane would have complained of problems with the freefall mechanism. It is also not disputed that H & E was never asked and never performed any service or repair on the clutch assembly at issue.

Moreover, the evidence demonstrates that, according to Manitowoc's historical practice, it was the responsibility of the selling distributor to convey any warning in the service bulletins to their purchasers. Keith Alan Crider, Manitowoc's regional business manager for the Northeast United States and Eastern Canada, testified that the distributor in whose territory a crane is located is responsible for performing mechanical or diagnostic repairs at any given time as per the distributorship agreement. However, he further clarified that it is still the sole responsibility of the selling distributor to provide the crane owner with manufacturer updates, including service bulletins. His testimony is consistent with that given by Manitowoc's corporate witness who also stated that Manitowoc expected distributors to contact the owner to whom that they would have sold the cranes.

In its pleadings, Manitowoc made similar recitations of its policy, repeatedly stating: "Manitowoc relied on its distributors to identify the Model 888 cranes with free fall mechanisms that the distributors sold, and to contact the owners of those cranes." Therefore, H & E argues that Plaintiffs/Intervenors cannot prove the existence of a legal duty owed to them by H & E under the circumstances of this case.

Whether a particular defendant owes a duty to a particular plaintiff is a question of law. Lemann , 923 So.2d 627. In deciding this issue, our supreme court has advised that "the ease of association between the duty owed and the risk encountered is a proper focus of inquiry in finding the existence of a duty." Socorro v. City of New Orleans , 579 So.2d 931, 939 (La.1991).

It is undisputed that H & E never owned, sold, or inspected the crane. There is also no dispute that H & E performed only one repair on the crane, fifteen months before the accident, involving an unrelated electrical issue in the cab. While it is further undisputed that H & E was both a distributor and service provider for Manitowoc and its cranes, that fact does not, in and of itself, prove the existence of the duty advanced by Plaintiffs/Intervenors. Rather, the evidence demonstrates that, pursuant to Manitowoc's historical practice as testified to by several witnesses, the Coast Crane Company, the original distributor of the crane, had the duty to warn the owner of the crane, not H & E. The crane was not even in H & E's territory when the service bulletin was issued.

Moreover, the evidence further reveals that H & E did not breach any obligation under its distributorship agreement in relation to its one interaction with the crane-the diagnosing and repair of the unrelated electrical issue in the cab. H & E was never advised of a problem with the freefall mechanism in this crane and was never asked to inspect the crane regardless. Significantly, its one service call was performed eight years after the issuance of Service Bulletin 90.

As the trial court found, the evidence, rather than supporting Plaintiffs'/Intervenors' allegations, demonstrates no ease of association between the collapse of the crane and resulting damages and H & E's alleged failure to warn of or perform the Service Bulletin 90 inspection some eight years after the issuance of the bulletin. In light of the record evidence, we conclude that H & E did not owe Plaintiffs/Intervenors a legal duty under the circumstances of this case. Accordingly, we find that H & E is entitled to judgment as a matter of law, and we affirm the trial court's judgment.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of H & E Equipment Services, Inc. and Travelers Property and Casualty Company of America is affirmed.

Costs of this appeal are assessed to the Plaintiffs/Intervenors/Appellants.

AFFIRMED.

      Liberty Mutual Insurance Corporation (Liberty), the workers' compensation carrier for Plaintiffs' employer, intervened in the lawsuits as well, adopting the allegations set forth by Plaintiffs pursuant to the Louisiana Workers' Compensation Act. Liberty adopts Plaintiffs' position in brief to this court.


text:
    IN RE: HARRIER TRUST
    18-651
    Court of Appeal of Louisiana, Third Circuit.
    October 17, 2018
   Wilford D. Carter, Wilford Carter Law, LLC, 1025 Mill Street, Lake Charles, LA 70601, (337) 564-6990, COUNSEL FOR APPLICANT: Preston L. Marshall, Beneficiary/Harrier Trust

Philip A. Franco, Leigh Ann Schell, Jeffrey E. Richardson, Adams and Reese LLP, 4500 One Shell Square, New Orleans, LA 70139, (504) 581-3234, COUNSEL FOR RESPONDENT: Edward Alexander, Adam P. Johnson

Hunter W. Lundy, Matthew E. Lundy, Rudie R. Soileau, Jr., T. Houston Middleton IV, Daniel A. Kramer, Lundy, Lundy, Soileau & South, L.L.P., P. O. Box 3010, Lake Charles, LA 70602-3010, (337) 439-0707, COUNSEL FOR APPLICANT: Preston L. Marshall, Beneficiary/Harrier Trust

Walter M. Sanchez, Alexander L. Reed, The Sanchez Law Firm, L.L.C., 1200 Ryan Street, Lake Charles, LA 70601, (337) 433-4405, COUNSEL FOR RESPONDENT: Elaine T. Marshall

Michael Reese Davis, Tim P. Hartdegen, Hymel, Davis & Petersen, L.L.C., 10602 Coursey Blvd., Baton Rouge, LA 70816, (225) 298-8118, COUNSEL FOR RESPONDENT: Elaine T. Marshall

Todd Clemons, Janet D. Madison, Todd Clemons & Associates, APLC, 1740 Ryan Street, Lake Charles, LA 70601, (337) 477-0000, COUNSEL FOR RESPONDENT: Elaine T. Marshall

Jeffrey W. Chambers, Chambers Law Group, 711 Louisiana Street, Suite 2150, Houston, TX 77002-2720, (713) 438-5244, COUNSEL FOR APPLICANT: Preston L. Marshall, Beneficiary/Harrier Trust

John P. Lahad, Susman Godfrey LLP, 1000 Louisiana Street, Suite 5100, Houston, TX 77002, (713) 653-7859, COUNSEL FOR APPLICANT: Preston L. Marshall, Beneficiary/Harrier Trust

Christopher J. Akin, 2100 Ross Ave., Suite 2700, Dallas, TX 75201, (214) 981-3812, COUNSEL FOR RESPONDENT: Elaine T. Marshall

Court composed of John D. Saunders, Marc T. Amy, and Billy H. Ezell, Judges.

SAUNDERS, Judge.

Relator, Preston L. Marshall (Preston), in his capacity as beneficiary of the Harrier Trust, seeks writs from two rulings by the Fourteenth Judicial District Court, Calcasieu Parish, the Honorable Anne Simon (Judge Simon), presiding ad hoc, and the Honorable Sharon Darville Wilson (Judge Wilson), presiding.

Preston seeks review of Judge Simon's denial of his first motion to recuse Judge Wilson. The notice of intent and this writ application were timely filed. Two of the five purported co-trustees, Edward Alexander (Alexander) and Adam F. Johnson (Johnson), filed a brief in opposition. Elaine T. Marshall (Elaine) also filed a brief in opposition. Preston filed a reply.

STATEMENT OF THE CASE

This matter arises out of the creation of the Harrier Trust in the last will and testament of E. Pierce Marshall, Sr. (Pierce Sr.), which is dated May 5, 2006. Pierce Sr. died on June 20, 2006, and succession proceedings were opened in Harris County, Texas, by his spouse, Elaine, who is the executrix of the estate and is the trustee of the Harrier Trust.

Matters related to the Harrier Trust have been before this court on three prior writ applications. Two appeals regarding the Harrier Trust are pending.

Related litigation has been before this court on several other matters. Further, a suit is pending in Dallas, Texas, and four suits are pending in the Probate Court for Harris County, Texas.

The Harrier Trust was set up for Preston's benefit. Elaine, Preston's mother, alleges that Preston demanded certain distributions from the Harrier Trust for his support, maintenance, and welfare but refused to provide the information necessary for Elaine to evaluate the request. Elaine avers that any distributions of principal to Preston are within her sole and absolute discretion under the provisions of the Harrier Trust. Preston alleges he instituted this litigation when his mother fired him from the family business in July 2015.

On October 12, 2015, within the Texas succession proceedings, Preston filed the 401 Suit against Elaine in her capacity as the executrix of Pierce Sr.'s will. It sought to compel a statutory accounting by Elaine, to gain access to the books and records of the Harrier Trust, and (as amended) to compel Elaine to perform all duties required under the Harrier Trust.

On October 29, 2015, Preston filed the 402 Suit seeking a declaratory judgment against Pierce Jr. and Elaine. Preston sought an order declaring that he was entitled to certain disclosures regarding the Harrier Trust and an order compelling Pierce Jr. and Elaine to make those disclosures.

On July 19, 2016, Preston sought an injunction against Elaine in Texas. In response, Elaine began the litigation regarding the Harrier Trust in Louisiana by filing a petition for declaratory relief on July 22, 2016. She alleged that Preston's actions prevented her from presenting her accounting for approval and sought guidance for the performance of her obligations under the Harrier Trust. Elaine also sought a declaration that a judgment rendered in Wyoming in the matter captioned "In the Matter of EPM Fiduciary Service Company, LLC, Trustee" was entitled to full faith and credit in Louisiana.

Preston intervened in the Louisiana suit and asserted exceptions of lis pendens, improper venue, and lack of subject matter jurisdiction, which were denied by the trial court. This court denied Preston's writ application.

Elaine filed a motion for partial summary judgment seeking approval of the December 2016 appointment of Alexander, Johnson, Dr. Wayne S. Thompson, Judge Lilynn Cutrer (Fourteenth Judicial District Court), and Dr. Karen Aucoin as co-trustees of the Harrier Trust. The hearing of that motion was stayed by Judge Wilson after Preston obtained injunctive relief that enjoined Elaine from taking any action with the co-trustees regarding the Harrier Trust outside of the Texas court and suspending the trustee powers, obligations, responsibilities and rights to compensation. The Texas court found that "Preston ha[d] demonstrated a likelihood of success on the merits."

On September 29, 2017, Preston sought a TRO and other injunctive relief as well as a declaration that the appointment of the five purported co-trustees violated the terms of the Harrier and Falcon Trusts. (The 404 Suit.) In the 404 Suit, Preston obtained an order compelling the production of certain documents prepared by Johnson (the Johnson Documents). In Louisiana, the co-trustees obtained a protective order regarding the Johnson Documents.

On November 7, 2017, the Texas court issued a temporary injunction enjoining the purported co-trustees from "[a]ttempting to circumvent the Court's jurisdiction over the Harrier and Falcon Trust[s] by 1) seeking validation of the compensation provisions..." The Texas court made a specific finding of fact that "[t]he Louisiana lawsuit is a threat to the proper jurisdiction" of the Texas court. Nonetheless, Johnson and Alexander had their motion for partial summary judgment put back on the docket, and Judge Wilson granted it by judgment signed January 11, 2018. That judgment is the subject of a pending appeal in 18-324.

This court vacated a TRO enjoining Preston and anyone acting in concert with him from filing, proceeding with, or participating in any litigation or proceeding related to the administration of the Harrier Trust outside of the Louisiana court. This court's ruling was based on the finding that Alexander and Johnson and the trial court failed to comply with the requirements of La.Code Civ.P. arts. 3603 and 3604. See 18-466.

Preston sought to recuse Judge Wilson because she is presiding over this case which involves another judge from the Fourteenth Judicial District Court, Judge Cutrer, who was made a co-trustee of the Harrier Trust. According to Preston, when Judge Wilson granted the TRO, it benefited Judge Cutrer.

The motion to recuse was assigned to Judge Clayton Davis (Judge Davis), who had been a partner in one of the firms representing Preston. Judge Davis recused himself, and sent an order to the Louisiana Supreme Court requesting that an ad hoc judge be assigned. Elaine took a writ directly to the Louisiana Supreme Court asking that Judge Davis' order be vacated because it was highly critical of Judge Cutrer and included his own narrative of the case. The Louisiana Supreme Court vacated Judge Davis' order. In Re: Harrier Trust , 18-1090 (La. 7/13/18), 248 So.3d 1285. Preston's motion to recuse was then assigned to Judge Simon, who was appointed ad hoc by the Louisiana Supreme Court.

A hearing was held on July 23, 2018, and Judge Simon denied the motion on the ground of waiver because motions to recuse are waived if not filed prior to trial or hearing once the alleged facts supporting the motion are known. See Gaspard v. Horace Mann Insurance Company , 17-1140 (La.App. 3 Cir. 5/9/18), 247 So.3d 778. Preston proffered the testimony of Judge Davis, who stated that he became aware of Judge Cutrer's appointment as co-trustee of the Harrier and Falcon Trusts in January of 2017. He stated that Judge Wilson told him that she had spoken to Judge Cutrer and that Judge Cutrer had assured her that there was no issue. Judge Cutrer allegedly testified that she had not discussed her appointment with any of the judges at the Fourteenth Judicial District Court.

No writ was initially filed with respect to this ruling, and Preston filed a second motion to recuse alleging actual bias based on the alleged ex parte communication described by Judge Davis. Judge Wilson stated that the conversation as alleged did not occur. Judge Wilson stated that in her capacity as Chief Judge of the Fourteenth Judicial District Court, she relayed Judge Davis' concerns to Judge Cutrer. Judge Cutrer responded to Judge Wilson by stating that she, Judge Cutrer, had sought an opinion from an ethics expert, and based on that, Judge Cutrer did not feel that there was any violation of the Code of Judicial Conduct. Judge Wilson did not assign the motion to recuse to another judge and denied it, stating that Preston "failed to state a valid basis for recusal."

Alexander and Johnson argue that Preston's motions to recuse are merely stalling tactics designed to give him time to get a TRO from the Texas courts before they could get one in Louisiana. They point out that when the motion for summary judgment was initially set for hearing, Preston sought and received a stay allegedly to conduct discovery. During that stay, Preston did depose Judge Cutrer, but he also sought and obtained injunctive relief in the Texas court as discussed above.

On August 7, 2018, this court upheld Judge Wilson's denial of the motion to recuse. See 18-612. Preston filed a writ application with the Louisiana Supreme Court on September 6, 2018, which is still pending. Now, Preston challenges Judge Simon's denial of his motion to recuse.

Also, on August 7, 2018, Judge Wilson granted a TRO after a phone conference. Then, on August 16, 2018, Judge Wilson granted a preliminary injunction enjoining Preston from participating in any proceedings related to the administration of the Harrier Trust anywhere other than the Fourteenth Judicial District Court. This ruling is the subject of the writ application in 18-667 and an unlodged appeal.

This court calls up writ application 18-661 for the purpose of issuing a written opinion. We find that there is no need for additional briefings or oral argument. However, a written opinion will avoid the possibility of having to entertain an appeal of the preliminary injunction after the consideration of it in this writ application.

SUPERVISORY RELIEF

"A judgment denying a motion for recusation is interlocutory in nature and may be appealed only upon a showing of irreparable injury." Augman v. City of Morgan City , 04-1746, p. 4 (La.App. 1 Cir. 9/23/05), 914 So.2d 583, 585. "The proper procedural vehicle to seek review of an interlocutory judgment that is not immediately appealable is an application for supervisory writ." Baxter v. Baxter , 15-85, p. 10 (La.App. 4 Cir. 6/24/15), 171 So.3d 1159, 1166, citing La.Code Civ.P. art. 2201.

"An appeal may be taken of right from an order or judgment relating to a preliminary or final injunction[,] but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders." La.Code Civ.P. art. 3612(B) (emphasis added). While "[a] preliminary injunction is an interlocutory procedural device designed to preserve the status quo between the parties pending a trial on the merits[,] ... a party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal." Bernhard MCC, LLC v. Zeringue , 18-30, p. 2 (La.App. 5 Cir. 5/30/18), 250 So.3d 342.

Louisiana Code of Civil Procedure Article 3612 uses the permissive "may" rather than " 'shall[,]' indicating than an appeal is permitted, but not mandated, to seek review of judgments relating to injunctions." Mik-Lee, Inc. v. City of New Orleans , 581 So.2d 261, 264 (La.App. 4 Cir. 1990), writ denied , 576 So.2d 28 (La.1991). See also La.Const. Art. 5, § 10 and La.Code Civ.P. art. 2201. "If a party elects to seek review by applying for supervisory writs, it must be done within the same time limits allowed for an appeal of the judgment complained of, which is 15 days under La.C[ode] C[iv.]P. art. 3612." First Bank and Trust v. Duwell , 11-104, p. 5 (La.App. 4 Cir. 5/18/11), 70 So.3d 15, 17 n.5.

Alexander and Johnson object to this court's review of the preliminary injunction under its supervisory jurisdiction and argue that a review by appeal would give the parties the opportunity to have oral argument. They also note that Preston was granted an order of appeal on August 22, 2018, by the trial court.

The notice of appeal was received by this court's clerk of court on August 30, 2018. The notice of intent to file this writ application was filed on August 22, 2018, the same day that the order of appeal was signed in the trial court. The order setting a return date of September 15, 2018, was also signed on August 22, 2018. The writ application was filed on August 29, 2018, within fifteen days of the issuance of the preliminary injunction.

Based on the above cited cases, we find that review under this court's supervisory jurisdiction is appropriate because it is probable that by the time any appeal of the preliminary injunction would be completed, the issues presented therein would be moot.

Alexander and Johnson oppose the request for expedited consideration and the writ application because the Texas court issued judgments that the Texas cases on appeal are "abated, treated as closed cases, and removed from the court's active docket" in deference to the preliminary injunction issued by the Louisiana court. They allege that because they have challenged the Texas court's jurisdiction and are appearing in those proceedings under a "Special Appearance," they can take no action in the Texas proceedings without waiving jurisdiction.

Preston, however, contends that Elaine withdrew her plea as to lack of jurisdiction in her second amended answer and that two judges who have presided over the Texas proceedings denied Elaine's assertions of lack of jurisdiction over the Harrier Trust.

In asserting that expedited consideration is not warranted, we find that Alexander and Johnson fail to disclose that the abatement orders all require Preston to advise the Texas court of "the status of the preliminary injunction by October 29, 2018 , or within 10 days of any material change in the status of the preliminary injunction, whichever is sooner" because "[t]he appeals will be reinstated on [the] court's active docket on or after October 29, 2018, or sooner if appropriate."

But, Preston also leaves out key details in his assertion that expedited consideration is necessary because Alexander and Johnson are threatening him with contempt proceedings. There was a deadline for Preston to file a brief right after the issuance of this injunction. Rather than miss the deadline, Preston petitioned the Texas court for an abatement order. What Preston fails to mention is that he sought abatement of only one of the Texas suits. Alexander and Johnson then asserted that they would seek contempt sanctions if Preston did not follow the same course of action in all of the Texas suits.

Although there are no currently scheduled trial or hearing dates in this suit, we find that the expeditious consideration of these writ applications is warranted because of the pending appeals in the Louisiana court, because of the appeals waiting to be placed back on the active docket of the Texas court, and because of the recusal issue, which calls into question the validity of any rulings made by Judge Wilson while the outcome of the recusal issue is pending.

ON THE MERITS

Louisiana Code of Civil Procedure Article 151 provides the grounds for the recusal of judges:

A. A judge of any court, trial or appellate, shall be recused when he:
....
(4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties' attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.

Louisiana Code of Civil Procedure Article 154 provides the "[p]rocedure for recusation," as follows:

A party desiring to recuse a judge of a district court shall file a written motion therefor assigning the ground for recusation.
This motion shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge ad hoc, as provided in Articles 155 and 156, for a hearing.

"A judge is presumed to be impartial." Slaughter v. Board of Sup'rs of S. Univ. and Agric. & Mech. Coll. , 10-1114, p. 8 (La.App. 1 Cir. 8/2/11), 76 So.3d 465, 471, writ denied , 11-2112 (La. 1/13/12), 77 So.3d 970. In David v. David , 14-999, pp. 4-5 (La.App. 3 Cir. 2/4/15), 157 So.3d 1164, 1168, writ denied , 15-494 (La. 5/15/15), 170 So.3d 968 (citations omitted), this court stated that "our jurisprudence requires not only a finding of actual bias or prejudice, but that the bias or prejudice 'must be of a substantial nature and based on more than conclusory allegations.' " The standard of review is abuse of discretion. Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc. , 00-1930, 00-1931 (La.App. 1 Cir. 9/28/01), 809 So.2d 1040.

Preston argues that the first motion to recuse was based on Judge Wilson's granting of the TRO (that was vacated and set aside by this court), which allegedly showed her "willingness to reach out beyond the scope of the litigation and confer what amounts to be an extraordinary favor on her colleague" and that this "constitutes proof of a probability and/or actual bias, and creates an appearance of impropriety simply too great for Judge [ ] Wilson to continue presiding over this case, and too high to be constitutionally tolerable." Preston avers that this is different from the basis for his second motion to recuse, which he identifies as the alleged ex parte communication between Judge Wilson and Judge Curter.

Preston also alleges that he would have filed a motion to recuse as soon as he learned of the alleged ex parte communication, but he did not know about it until July 2018. Although Preston asserts that he had separate and distinct grounds for each of his motions to recuse, he argues both reasons in support of this writ application. For example, Preston proffered the testimony of Judge Davis relative to the alleged ex parte communication and alleged that it was error for Judge Simon not to consider it in deciding the first motion to recuse.

Then, Preston alleges that Judge Simon abused her discretion in finding that he waived his recusation argument because there was no evidence of any bias until Judge Wilson granted the TRO in the absence of the required showing of irreparable injury in favor of her colleague who was not even a party to the litigation. He points out that Judge Cutrer was not a party to the suit for declaratory relief and alleges that she could not benefit from any declaratory relief as sought under Elaine's petition.

Preston also argues that both Judge Wilson and the Louisiana Supreme Court rejected the waiver argument advanced by Elaine and Alexander and Johnston. Preston argues that if Judge Wilson and the Louisiana Supreme Court were of the opinion that he had waived the right to ask for a recusal, Judge Wilson did not have to refer the matter to another judge, and the Louisiana Supreme Court could have refused to appoint an ad hoc judge. As asserted by Elaine, the Louisiana Supreme Court did not consider the merits of the first motion to recuse. The only issue considered by the Louisiana Supreme Court was the content of Judge Davis' order.

Louisiana Code of Civil Procedure Article 154 requires that "[i]f a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge ad hoc[.]" "Nothing in the language of that article prevents a judge from referring all recusal motions without a determination as to the validity of the ground(s), or from referring a recusal motion the judge concludes lacks a valid ground." Slaughter , 76 So.3d at 475. It is not contemplated that the judge must determine the validity or timeliness of every motion to recuse filed against her.

Judge Cutrer was deposed in November 2017, and the summary judgment was heard on December 12, 2017. This ruling was favorable to Judge Cutrer. Further, Judge Wilson found (differently than the Texas court) that the Johnson Documents were privileged. That ruling, according to Alexander and Johnson, was also favorable to Judge Cutrer. Alexander and Johnson point out that Preston never asserted a motion to recuse during any of those hearings, despite his knowing that the summary judgment sought relief that would benefit all five of the purported co-trustees even though they did not all join in the suit.

We find that when the motion for summary judgment was first filed in May 2017, Preston should have been aware that a ruling thereon would benefit Judge Cutrer even though she had not joined as a party to the suit. The summary judgment clearly sought a declaration that the appointment was valid as to Judge Cutrer. Preston alleges that Judge Wilson should have disclosed the January 2017 ex parte communication before she entered the summary judgment. He argued that Judge Wilson granted the motion because Judge Cutrer told her that she had obtained an opinion that her appointment as co-trustee was not a violation of the Code of Judicial Conduct. Then, in his reply brief, Preston asserts that the granting of the summary judgment was not a big benefit to Judge Cutrer because it did not include a finding that the fee provisions were proper. He argues that it was not until Judge Wilson reached out to "protect" Judge Cutrer in the Texas litigation by issuing the TRO that any bias was shown because a declaratory summary judgment would have no effect against Judge Cutrer as a non-party, but enjoining Preston from participating in the Texas litigation regarding the administration of the Harrier Trust would directly benefit Judge Cutrer regardless of whether she was a party to the Louisiana litigation.

Preston's own argument regarding the grounds for his first motion to recuse indicate that he should have brought the motion to recuse as soon as Judge Wilson granted any ruling that was favorable to Judge Cutrer. If granting the TRO shows bias by Judge Wilson in favor of Judge Cutrer, the grant of an order that benefits Judge Cutrer should have put Preston on notice that he had grounds to seek recusal.

"[A] party who fails to file a motion to recuse the judge prior to trial as required by La.Code Civ.P. art 154, despite having knowledge of the grounds for recusal waives his right to urge recusal." Gaspard , 247 So.3d at 786.

We find that Judge Simon did not abuse her discretion in finding that Preston waived his right to seek recusal. Because Judge Simon found waiver, witness testimony was unnecessary. Moreover, since Judge Simon did not abuse her discretion, it is unnecessary to consider Preston's argument that her failure to consider the testimony of Judge Davis was improper.

Elaine asserted that this court's denial of Preston's writ application regarding the second motion to recuse based on Judge Davis' testimony moots the instant writ application. She also asserts that Judge Davis' testimony was irrelevant to the issue of timeliness of the motion to recuse. Preston, on the other hand, asserts that the evidence of bias was unknown to him until he elicited the testimony from Judge Davis. Again, although Preston asserts that this is the ground for the second motion to recuse, he alleges that Simon abused her discretion in not considering Judge Davis' testimony. Thus, if Preston admits that he had no evidence of bias until Judge Davis testified, then his first motion to recuse had no merit even if was timely filed.

Preston argues that the disposition of the second motion to recuse does not moot the issues in the first because the grounds of each motion were independent. But, Preston also argues that if Judge Simon had allowed Judge Davis' testimony, there would have been no basis for her to deny his motion to recuse. Again, this necessitates our finding that Preston's own argument mandates a finding against him. This court has already found that there was no abuse of discretion in Judge Wilson's failure to recuse herself or to refer Preston's second motion to recuse to another judge. If that is so, then it follows that Judge Simon could have denied the motion to recuse even if she had considered Judge Davis' testimony. And, although Preston argues that each motion is based on separate grounds, he continues to argue that one depends on the other.

Accordingly, we find that the writ application in 18-651 is denied for the foregoing reasons.

WRIT DENIED. We find no abuse of discretion in the denial of the motion to recuse.

Amy, J., concurs in the result.

      See 17-103, 18-466, and 18-612.

      See 18-324. The other appeal concerns the preliminary injunction that is the subject matter of 18-667, but the record has not been lodged.

      These are: (1) the succession proceedings for Pierce Sr. (No. 365,053); (2) No. 365053-401 (Texas Fourteenth Court of Appeals numbers 14-17-839, 14-18-94, 14-18-95, 14-18-425, and 14-18-466), the 401 Suit; (3) No. 365053-402 (Texas Fourteenth Court of Appeals number 14-18-425), the 402 Suit; and (4) No. 365053-404 (Texas Fourteenth Court of Appeals number 14-17-930), the 404 Suit.

      EPM Fiduciary Service Company, LLC, is the trustee of the EPM Marital Income Trust, which is a Wyoming Trust. The Harrier and Osprey Trusts are the remaindermen who are to receive distribution of the trusts' assets following Elaine's death.

      The injunction also enjoined the purported co-trustees from taking certain other actions. The Texas court, in issuing the injunction, also made a finding that "Preston is likely to succeed on his claim that compensation provisions ... violate the terms of the Trusts." The compensation package for the co-trustees of the Harrier Trust is estimated to be $20-30 million on an annual basis. Alexander and Johnson contend that the amount of compensation has not been determined.

      Preston asserts that Judge Cutrer is an indispensable party to any Harrier Trust litigation, but his exception of failure to join necessary parties has not been decided by the trial court.


author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Kirk M. BELL
    NO. 18-KA-540
    Court of Appeal of Louisiana, Fifth Circuit.
    October 19, 2018
    COUNSEL FOR DEFENDANT/APPELLANT, KIRK M. BELL, Jane L. Beebe
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
   CHEHARDY, C.J.

In this case, defendant, Kirk Bell, challenges the trial court's denial of his motion to correct illegal sentence. For the reasons that follow, we dismiss this matter for lack of appellate jurisdiction.

Procedural History

Following a jury trial, defendant was convicted of possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A) ; thereafter, the trial judge sentenced defendant to fifteen years imprisonment at hard labor with credit for time served. Subsequently, the State alleged and proved that defendant was a third felony offender; thereafter, the trial judge adjudicated defendant a third felony offender, vacated defendant's underlying sentence, and imposed an enhanced sentence of life imprisonment without benefit of probation, parole, or suspension of sentence, pursuant to La. R.S. 15:529.1. On appeal, this Court affirmed defendant's conviction and sentence. See State v. Bell , 97-1134 (La. App. 5 Cir. 2/25/98), 709 So.2d 921, 922.

On April 10, 2018, defendant filed a "Motion to Correct Illegal Sentence/Motion Requesting Retroactive Application of Recently Enacted LSA-R.S. 15:308(B)." In his motion, defendant alleged that his mandatory life sentence was illegal as the Louisiana Legislature's 2006 ameliorative changes to La. R.S. 15:308 suggest that the mandatory life sentence imposed on defendant as a third felony offender in 1997 is illegally harsh. Specifically, defendant contended that his two prior offenses did not trigger the mandatory life sentence provision.

On May 8, 2018, the trial judge found that defendant was entitled to re-sentencing under the Louisiana Supreme Court's recent pronouncement in State ex rel. Esteen v. State of Louisiana , 16-949 (La. 1/30/18), 239 So.3d 233. The State vigorously opposed re-sentencing on the grounds that defendant's two predicate convictions of armed robbery and simple burglary mandated a sentence of life imprisonment without parole under La. R.S. 15:529.l(A)(l)(b)(ii). On July 2, 2018, the trial judge vacated its previous grant of defendant's motion to correct illegal sentencing and denied his motion. Defendant now appeals the trial court's denial of his motion to correct an illegal sentence.

Law and Analysis

La. Const. Art. V, § 10 states that the appellate jurisdiction of the courts of appeal extends to "all criminal cases triable by a jury [except capital cases]" and its supervisory jurisdiction exists "over cases which arise within its circuit [not otherwise provided by law]." See also , La. C.Cr.P. art. 912.1(B)(1) ; La. C.Cr.P. art. 912.1(C)(1). A ruling denying a motion to correct an illegal sentence is not reviewable by this Court under its appellate jurisdiction. La. C.Cr.P. art. 912.1(C) ; State v. Smith , 14-359 (La. App. 5 Cir. 10/29/14), 164 So.3d 902 ; State v. Lee , 11-1128 (La. App. 5 Cir. 7/31/12), 99 So.3d 721, 723. The appropriate avenue of review thereof is by way of a supervisory writ application. See State v. Schwartz , 12-183 (La. App. 5 Cir. 10/16/12), 102 So.3d 991, 993.

Accordingly, we dismiss the present appeal. See State v. Suthon , 99-661 (La.App. 5 Cir. 10/29/99), 746 So.2d 240, 242. We reserve, however, defendant's right to file a proper application for supervisory writs, in compliance with U.R.C.A. Rule 4-3, within thirty days from the date of this decision. Further, we hereby construe defendant's motion for appeal as a notice of intent to seek a supervisory writ so defendant is not required to file a notice of intent nor obtain an order setting a return date pursuant to U.R.C.A. Rule 4-3.

APPEAL DISMISSED.


text:
    STATE of Louisiana v. Joseph SCOTT
    NO. 18-KH-580
    Court of Appeal of Louisiana, Fifth Circuit.
    October 22, 2018
    WRIT GRANTED
    Relator, Joseph Scott, filed the instant application for a writ of mandamus which seeks to compel the district court to rule upon his "Motion For Excessive Sentence." This Court, in State v. Scott , 18-451 (La. App. 5 Cir. 8/15/18), --- So.3d ----, 2018 WL 3909659, (unpublished writ), previously granted relator's application for the limited purpose of transferring two separate motions, including his "Motion For Excessive Sentence," to the district court for filing and review.
    The official record in this case shows that the trial court considered and denied relator's "Motion to Review an Illegal Multiple Offender Bill Sentence" in an order dated August 27, 2018. We note, however, that the official record does not show a ruling on relator's "Motion For Excessive Sentence."
    Accordingly, relator's writ of mandamus is granted. Within 15 days, if it has not already done so, the trial court is ordered to rule upon relator's "Motion For Excessive Sentence" which was filed in connection with this Court's prior disposition in writ 18-KH-451. A copy of the trial court's ruling on relator's motion shall be forwarded expeditiously to relator and to the Louisiana Fifth Circuit Court of Appeal's Clerk of Court.