author: JOHNSON, J.

text:
    Clovina STEIN v. CITY OF GRETNA, Emergency Medical Services Paramedic Association, Mayor Ronnie C. Harris, ABC and DEF Employees, and XYZ Insurance Company
    NO. 17-CA-554
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CLOVINA STEIN, James E. Shields, Sr.
    COUNSEL FOR DEFENDANT/APPELLEE, CITY OF GRETNA, Roy L. Schroeder
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson
   JOHNSON, J.

Appellant/Plaintiff, Clovina Stein, appeals the judgment from the 24th Judicial District Court, Division "K", that found no liability against Appellees/Defendants, the City of Gretna and its insurer, American Alternative Insurance Corporation (hereinafter collectively referred to as "Gretna"), for alleged injuries she sustained while being transported to the hospital. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On the morning of December 12, 2008, emergency medical services were requested at the home of Clovina Stein in Gretna, Louisiana, and emergency medical technicians, Linda Kerns and Officer Steven Verrett, answered the request. Ms. Stein was transported to the hospital in the ambulance, while her sister and caretaker, Cassandra Stein, was to meet the ambulance at the hospital. Officer Verrett drove the ambulance, and Ms. Kerns was in the back of the ambulance with Ms. Stein. During the transport, Officer Verrett was forced to make a sudden stop, causing Ms. Kern to fall on top of Ms. Stein. Upon arrival at the Ochsner Medical Center located on Jefferson Highway (hereinafter referred to as "Ochsner-Jefferson Campus"), Ms. Stein received treatment for a heart attack.

On October 5, 2009, Ms. Stein filed a "Petition for Damages" against Gretna and other defendants , alleging she suffered severe personal injuries when Ms. Kerns fell on her while being transported to the hospital on December 12, 2008. Ms. Stein alleged she was struck in the face and head with an object believed to be a radio.

In a later amended petition, Ms. Stein alleged she was taken into the emergency room at Ochsner-West Bank Campus, was told she was transported to the wrong hospital, then was subsequently transported to Ochsner-Jefferson Campus. While en route , she asserted she was struck by Ms. Kerns' radio, causing her to go unconscious. Ms. Stein alleged Officer Verrett and Ms. Kerns were negligent in their actions and were improperly trained by Gretna. As a result of the incident, Ms. Stein alleged she was swollen and bruised upon arrival at the Ochsner-Jefferson Campus. She further alleged that she suffered permanent head and facial injuries, a concussion, a permanent ear injury, injury to her jaw, a hernia, a heart attack, a stroke, exacerbation of her lupus disease, and spinal injuries, all resulting from the incident in the ambulance.

A bench trial on the merits was held on February 1 and 2, 2017, and was recessed to allow for the production of discovery responses and to locate a witness. The trial resumed on April 25, 2017. In a judgment rendered on May 15, 2017, the trial court entered a judgment in favor Gretna and dismissed Ms. Stein's claims with prejudice. In its "Reasons for Judgment," the trial court applied the qualified immunity provided in La. R.S. 37:1732(A) and found that Ms. Stein failed to show that Officer Verrett or Ms. Kerns engaged in an intentional act or omission designed to harm Ms. Stein or committed a grossly negligent act or omission. The trial court also found that Ms. Stein failed to produce any evidence that Officer Verrett and Ms. Kerns were negligent in their actions. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Ms. Stein alleges the trial court erred by: 1) finding that Gretna and its employees qualified for limited immunity pursuant to La. R.S. 37:1732(A) ; 2) applying the gross negligence burden of proof rather than the negligence standard; 3) finding Gretna was not negligent in failing to train its employees, specifically Linda Kerns and Steven Verrett; 4) failing to find Gretna committed spoilage of evidence and fraud under La. C.C. art. 1953 ; 5) failing to find that Gretna's employees committed an Emergency Medical Treatment and Active Labor Act (hereinafter referred to as "EMTALA") violation by removing her from the first hospital emergency room and transporting her to a second emergency room; 6) refusing to address the issue and cause of action that Gretna's employees committed civil fraud pursuant to La. C.C. art. 1953 in an attempt to cover their negligence; 7) failing to apply the "uncalled witness" presumption against Gretna for refusing to produce Linda Kerns for trial; and 8) denying her right to call rebuttal/impeachment witness, William Pierce.

LAW AND ANALYSIS

Qualified Immunity and Gross Negligence Standard

Ms. Stein alleges the trial court erred in finding that Gretna's employee, Ms. Kerns, was entitled to immunity under La. R.S. 37:1732. She argues that Gretna failed to present any evidence of Ms. Kern's training or certification and, thus, failed to meet its burden of proving that Ms. Kern qualified for the immunity. As a result, Ms. Stein alleges the trial court erred in applying the gross negligence burden of proof for this matter.

Gretna asserts that its employees, Ms. Kerns and Officer Verrett, were entitled to the immunity provided to emergency medical personal under La. R.S. 37:1732, and the gross negligence standard was properly applied by the trial court. Gretna avers that, while it was its burden to prove the immunity for Officer Verrett and Ms. Kerns at trial, it was not required to provide documentation regarding the qualifications of each of the employees, as the statute has no such requirement. Gretna contends that sufficient testimony was produced at trial to justify its employees' entitlement to the immunity. Gretna further asserts that even if this Court were to find Ms. Kerns and Officer Verrett were not entitled to the immunity provisions of La. R.S. 37:1732, the error would be harmless because the trial court also found that it was not liable under general negligence.

In its Reasons for Judgment, the trial court held that, in order for Ms. Stein to recover in her action, she was required to show that Ms. Kerns or Officer Verrett engaged in an intentional act or omission designed to harm her or committed a grossly negligent act or omission. The trial court found that Ms. Stein failed to meet her burden.

La. R.S. 37:1732 provides:

A. Any fireman, policeman, or member of an ambulance or rescue squad who holds a valid current certification by the American Red Cross, L.S.U. Fireman Training Rescue Program, United States Bureau of Mines, or any equivalent training program approved by the Department of Health and Hospitals who renders emergency care, first aid, or rescue while in the performance of his duties at the scene of an emergency or moves a person receiving such care, first aid, or rescue to a hospital or other place of medical care shall not be individually liable to such person for civil damages as a result of acts or omissions in rendering the emergency care, first aid, rescue, or movement of such person receiving same to a hospital or other place of medical care except for acts or omissions intentionally designed to harm or grossly negligent acts or omissions that result in harm to such person, but nothing herein shall relieve the driver of an ambulance or other emergency or rescue vehicle from liability arising from the operation or use of such vehicle.
B. The immunity herein granted to a fireman, policeman or member of an ambulance or rescue squad in accordance with Subsection (A) of this section shall be personal to him and shall not inure to the benefit of any employer or other person legally responsible for the acts or omissions of such fireman, policeman or member of an ambulance or rescue squad nor shall it inure to the benefit of any insurer, except that no parish governing authority engaged in rendering ambulance services nor its insurer with respect to such ambulance services shall be liable for the act or omission of any member of any ambulance squad employed by it unless such individual would be personally liable therefor under the provisions of Subsection (A) hereof.
C. In order for any fireman, policeman, or member of an ambulance or rescue squad to receive the benefit of the exemption from civil liability provided for herein, he must first have taken, successfully completed, and hold a valid certification of completion of the standard first aid course recognized or approved by the American Red Cross, the United States Bureau of Mines, the L.S.U. Fireman Training Rescue Program, or any equivalent training program approved by the Department of Health and Hospitals, and further he shall have a valid certification from the Red Cross, the United States Bureau of Mines, the L.S.U. Fireman Training Rescue Program, or the Department of Health and Hospitals that he has successfully completed any necessary training or refresher courses. Any such certification or refresher courses shall have standards at least equal to the standard first aid course recognized or approved by the American Red Cross, United States Bureau of Mines, or the L.S.U. Fireman Training Rescue Program.

At the trial in this matter, although Defendants presented testimony from Officer Verrett and Ryan Brown, the supervisor for the West Jefferson EMS, that suggested Ms. Kerns had the certification needed to be an EMT at the time of the incident, Gretna did not produce any evidence that Ms. Kerns had the training required by La. R.S. 37:1732(C) in order to qualify for immunity. Accordingly, we find the trial court erred in qualifying Ms. Kerns for the immunity provided under La. R.S. 37:1732 and applying the gross negligence standard to the claims against her. However, despite Ms. Stein's assignment of error concerning general negligence, the trial court also found that Ms. Stein failed to prove either Ms. Kerns or Officer Verrett were negligent in their actions, and the law did not impose any liability on Gretna; consequently, there could be no vicarious liability for Gretna. Thus, because the proper negligence standard was also applied in this matter by the trial court, we find no need for a de novo review.

Employee Training

Ms. Stein alleges the trial court erred in failing to find that Gretna did not train and/or supervise its employees. She argues that Gretna failed to provide Ms. Kerns with any training as to safety protocol on the use of a seatbelt while traveling in an ambulance; thus, Ms. Kerns was not trained on the use of a seatbelt while traveling in the back of the ambulance when she was not administering medical treatment. Ms. Stein contends that, if Ms. Kerns had been properly trained on the use of a seatbelt while in the back of an ambulance by Gretna, Ms. Kerns would not have fallen on top of her during the transport and caused her multiple injuries.

Gretna asserts Ms. Stein failed to present evidence that it failed to train and/or supervise its employees, as she did not present any evidence or expert testimony that it had a duty to train and supervise its EMTs regarding the use of seatbelts in the patient compartment of an ambulance. Gretna further asserts Ms. Stein failed to present any evidence or expert testimony that reviewed any national EMT, paramedic or any similar professional protocols or trainings for the incident in question. However, it contends that it presented evidence through the testimony of a paramedic and Commander of Emergency Medical Services for Gretna, Ryan Brown, that there is no known requirement for any ambulance-seatbelt protocol, procedure, or requirement.

Employers are answerable for the damage caused by their employees in the exercise of the functions in which they are employed. Bourgeois v. Allstate Ins. Co. , 02-105 (La. App. 5 Cir. 5/29/02), 820 So.2d 1132, 1135. The foundation of liability under respondeat superior is the employee's tort. Coulon v. Endurance Risk Partners, Inc. , 16-1146 (La. 3/15/17), 221 So.3d 809, 813-14. In order for liability to attach to the employer under this doctrine, there must be some fault on the part of the employee. Id. at 814. While the liability of an employer for negligent training and supervision is direct, for such a liability to attach, there must have been conduct that caused damage, and this conduct could have only been committed by an employee. Id.

At trial, Ms. Stein presented the expert testimony of Raymond Burkhart, Jr. Mr. Burkhart was admitted by the trial court as an accident reconstruction and safety expert. He opined there was no problem with an EMT administering emergency aid in back of an ambulance but insisted that was not the circumstance for the incident involving Ms. Stein, implying Ms. Kerns was not administering emergency aid. Mr. Burkhart determined that the lack of seatbelt usage by Ms. Kerns was the primary causative factor of her falling on Ms. Stein, not the sudden braking of the ambulance.

For the defense, Commander Brown testified that the "Region One Protocol" was the protocol for all 911 services in the Greater New Orleans area. Commander Brown stated that the Region One Protocol did not address the use of seatbelts in the back of ambulances, and he was not aware of any protocol that required emergency service workers to wear a seatbelt when they were not rendering emergency services. Generally, he averred that EMTs are not expected to be buckled by a seatbelt while in the back of an ambulance because they have to check vital signs on the patient and perform other tasks instructed by the doctor.

After review, we find that Ms. Stein failed to prove that Gretna failed to properly train and/or supervise its employees on the use of seatbelts in ambulances. Although Ms. Stein presented expert testimony opining the incident occurred because Ms. Kerns failed to use a seatbelt, Ms. Stein neither met her burden of showing that Gretna was required to train its EMTs on the use of seatbelts nor did she establish what the protocol was for the use of seatbelts by EMTs. Therefore, without such evidence, we cannot find the trial court erred in its determination that Gretna cannot be held liable for any alleged failure to train and/or supervise its employees.

Spoliation and EMTALA violation

Ms. Stein alleges the trial court erred in failing to find Gretna committed spoilage of the evidence and fraud. She argues that Gretna's failure to produce Ms. Kerns' personnel record and training certifications and the dispatch logs and/or recordings prevented the presentation of evidence in her favor, resulting in the spoliation of evidence. Ms. Stein contends that Officer Verrett and Ms. Kerns violated the EMTALA by transporting and unloading her at the Ochsner-Westbank Campus' emergency room then subsequently transporting her to the Ochsner-Jefferson Campus' emergency room, without rendering any medical treatment to her at the Ochsner-Westbank Campus. She maintains that, but for the violation of EMTALA of transporting her from one hospital to another by Gretna's employees, there would have been no accident. Because of Gretna's destruction and/or suppression of records, Ms. Stein contends fraud is obvious on the part of Gretna and alleges the trial court erred in failing to find spoliation of the evidence.

Gretna first asserts that the federal EMTALA has no bearing on the facts of this matter because it imposes no requirements on ambulatory services, as the responsibilities of the ambulatory service and its employees are solely a matter of state law. Gretna further asserts Ms. Stein failed to present sufficient evidence (through lay or expert testimony) at trial that her damages were, in whole or in part, caused by the alleged transport to and removal from the Ochsner-West Bank Campus. Gretna contends that, although Ms. Stein and her sister provided self-serving testimony, Ms. Stein presented no testimony of any of the employees of the Ochsner-West Bank Campus to corroborate her allegation that she was transported to that location. To the contrary of Ms. Stein's allegation, Gretna avers that it provided the testimony of Dr. John Phillips, the Chief of Medicine and Medical Director for the Ochsner-West Bank Campus Emergency Room, proving that Ms. Stein was not transported to the Ochsner-West Bank Campus or brought into the emergency room. Regarding Ms. Stein's allegation of spoliation, Gretna argues that it presented the Jefferson Parish Sheriff's Office's "Incident History Detail" to Ms. Stein and the trial court, documenting the call for service to her home on December 12, 2008. Instead of obtaining and producing independent and verifiable evidence conclusively showing that she was transported to the Ochsner-West Bank Campus prior to being transported to the Ochsner-Jefferson Campus, Ms. Stein attempted to shift the burden of proof, and the trial court properly declined to grant Ms. Stein's request for an adverse inference based upon spoliation.

To begin, we agree with Gretna's assertion that EMTALA is inapplicable in this matter. EMTALA establishes specific requirements of conduct for covered hospitals and provides special rules for enforcement of those requirements, which creates a federal cause of action. Spradlin v. Acadia-St. Landry Med. Found. , 98-1977 (La. 2/29/00), 758 So.2d 116, 121-22. Ochsner Clinic Foundation was dismissed from the action, and the remaining defendants in the matter were not covered under the Act. Thus, we find EMTALA does not apply to the facts of this case.

In regard to the law of spoliation of evidence, this Court in Longwell v. Jefferson Parish Hosp. Serv. Dist. No. 1 , 07-259 (La. App. 5 Cir. 10/16/07), 970 So.2d 1100, 1104, writ denied , 07-2223 (La. 1/25/08), 973 So.2d 756, citing Desselle v. Jefferson Parish Hosp. Dist. No. 2 d/b/a East Jefferson Gen. Hosp. , 04-455 (La. App. 5 Cir. 10/12/04), 887 So.2d 524, 534, recounted the law as follows:

The theory of "spoliation of evidence" refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. A plaintiff asserting a state law tort claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient. Where suit has not been filed and there is no evidence that a party knew suit would be filed when the evidence was discarded, the theory of spoliation of evidence does not apply. The tort of spoliation of evidence has its roots in the evidentiary doctrine of "adverse presumption," which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained.

(Internal citations omitted).

In this matter, Ms. Stein argued that Gretna's failure to produce dispatch logs and/or phone recordings that proved she was first taken to the emergency room at the Ochsner-West Bank Campus constituted spoliation of the evidence. However, Ms. Stein failed to prove such logs or recordings, other than the "Incident History Detail" produced by Gretna, were maintained or possessed by Gretna. To the contrary, Gretna provided ample evidence to support its position that Ms. Stein was not transported to the Ochsner-West Bank Campus. The "Incident History Detail" showed no indication that Ms. Stein was transported to the Ochsner-West Bank Campus on the day in question, only a transport to the Ochsner-Jefferson Campus. Furthermore, Officer Verrett testified that he only transported Ms. Stein to the emergency room at the Ochsner-Jefferson Campus because that is where he was instructed to transport her. Dr. Phillips confirmed that an electronic record is made for individuals transported to the emergency room by ambulance and subsequently transferred to another facility, but there were no notations in the Ochsner-West Bank Campus' electronic record that Ms. Stein was brought to that emergency room on December 12, 2008.

The preponderance of the evidence produced by Gretna supports a finding that Ms. Stein was not transported to Ochsner-West Bank Campus before being transported to Ochsner-Jefferson Campus. Ms. Stein has not produced any evidence sufficient to refute that fact. Consequently, she has failed to show the existence of any logs and/or recordings that indicate she was first transported to Ochsner-West Bank Campus, or that any such logs and/or recordings were destroyed by Gretna. We, therefore, conclude the trial court did not err in failing to find spoliation of the evidence.

Furthermore, during trial, the trial judge inquired about the production of Ms. Kerns' personnel file with Gretna. The trial judge reprimanded Gretna for not producing its personnel file to Ms. Stein during discovery, and the file was provided to Ms. Stein. Thus, Ms. Stein had access to the information contained in Ms. Kerns' personnel file. Accordingly, to the extent that information from Ms. Kerns' file was favorable to Ms. Stein's case, we find that Ms. Stein was not prevented from presenting that evidence.

Fraud pursuant to La. C.C. art. 1953

Ms. Stein alleges the trial court erred in refusing to address whether Ms. Kerns and Officer Verrett committed civil fraud pursuant to La. C.C. art. 1953 by deliberately omitting the accident and injuries she incurred while being transported to the hospital from the certified EMS Run Report. She argues that the fraudulent cover-up and alteration of the EMS Run Report certified pursuant to the Health Insurance Portability and Accountability Act of 1996 (hereinafter referred to as "HIPPA") is supported by the testimony and prima facie evidence presented at trial. Ms. Stein contends that the EMS Run Report in the certified medical records did not contain the same information as EMS Run Report that was produced during the discovery phase.

Gretna avers that the trial court, after considering Ms. Stein's purported basis of the alleged fraud claim, properly denied Ms. Stein's motion for leave to amend and/or supplement her petition. As such, it contends the record does not provide a basis to find that the trial court committed palpable error for this Court to reconsider the issue.

La. C.C. art. 1953 states, "Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction." In pleading fraud, the circumstances constituting fraud shall be alleged with particularity. La. C.C.P. art 856.

In this matter, on May 27, 2016, Ms. Stein filed her "Motion for Leave to File Third Amended Petition," nearly seven years after the filing of her original petition. In the motion, Ms. Stein sought to amend her petition to include an allegation of fraud pursuant to La. C.C. art. 1953, et seq. , for the alteration of a HIPPA medical record, the EMS Run Report. Gretna opposed the motion, and the trial court set the matter for a hearing. After the hearing on the motion, the trial court denied the motion and struck the proposed third amended petition from the record. In its "Reasons for Judgment," the trial court found that the EMS Reports had been available to Ms. Stein in her medical records for several years, and the amendment of her petition at that time would force a continuance in the matter that had been pending for almost seven years.

Pursuant to La. C.C.P. art. 1151, after an answer has been served, a plaintiff may amend a petition only by leave of court or by written consent of the adverse party. The court may permit the mover to file a supplemental petition setting forth causes of action which have become exigible since the date of filing the original petition and are related to or connected with the cause of action. La. C.C.P. art. 1155. The decision to grant leave to amend or supplement a pleading is within the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion indicating a possibility of resulting injustice. Graci v. Gasper John Palazzo, Jr., L.L.C. , 09-347 (La. App. 5 Cir. 12/29/09), 30 So.3d 915, 919, writ denied , 10-248 (La. 4/9/10), 31 So.3d 394. Amendments should be permitted if: 1) the movant is acting in good faith; 2) the amendment is not being used as a delay tactic; 3) the opponent will not be unduly prejudiced; and 4) the trial will not be unduly delayed. Harris v. Union Nat'l Fire Ins. Co. , 14-1603 (La. App. 1 Cir. 6/18/15), 175 So.3d 1008, 1012.

After review, we do not find the trial court erred in refusing to consider Ms. Stein's allegations of fraud. Ms. Stein included her allegation of fraud in a third amended petition, which required leave of court to be filed into the record. In its denial of Ms. Stein's motion, the trial court reasoned that the amendment would force a continuance in the matter that had already been pending for years. We find the trial court did not abuse its discretion in denying Ms. Stein's motion because the amendment of her petition would unduly delay the matter. Thus, since the request to amend her petition had been denied by the trial court and upheld on review, Ms. Stein's allegation of fraud was not properly before the trial court for consideration, and the trial court did not err in declining to address the matter.

"Uncalled Witness" Presumption

Ms. Stein alleges the trial court erred in not applying the "uncalled witness" presumption for Gretna's failure to call or produce Ms. Kerns at trial, even after being ordered to do so. Ms. Stein argues that Ms. Kerns could have been questioned regarding the incident, EMS Run Report, and training, if her whereabouts were not hidden by Gretna.

Gretna asserts Ms. Kerns is no longer under its power for purposes of the uncalled witness rule. It contends that, because Ms. Stein's counsel was unable to locate Ms. Kerns for trial, she is attempting to place the blame on Gretna for her failure. Gretna further asserts that even if Ms. Kerns was located for trial, her testimony would have been cumulative because Ms. Stein entered into evidence Ms. Kerns' deposition, which stated that Ms. Stein was not brought to the Ochsner-West Bank Campus and she was conscious during the entire transport. Gretna argues that, despite Ms. Stein's assertions, it attempted multiple times by phone and email to contact Ms. Kerns, to no avail. Consequently, Gretna contends the trial court properly denied Ms. Stein's request to enforce the uncalled witness rule.

An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebuttable and is tempered by the fact that a party need only put on enough evidence to prove the case. In re Succession of Barattini , 11-752 (La. App. 5 Cir. 3/27/12), 91 So.3d 1091, 1096, quoting Nunnery v. City of Kenner , 08-1298 (La. App. 5 Cir. 5/12/09), 17 So.3d 411. The adverse presumption is referred to as the "uncalled witness" rule and applies when a party has the power to produce a witness who would elucidate the transaction or occurrence and fails to call that witness. Id. When the party does not produce a reasonable explanation for its failure to call that witness, the court may presume that the witness' testimony would have been unfavorable. Roth v. New Hotel Monteleone L.L.C. , 07-549 (La. App. 5 Cir. 1/30/08), 978 So.2d 1008, 1012.

As previously mentioned, Gretna did not produce Ms. Kerns' personnel file to Ms. Stein during the discovery phase; thus, Ms. Stein did not have access to all of the location information Gretna had for Ms. Kerns. During the trial in this matter, Gretna was ordered to produce information regarding Ms. Kerns' whereabouts to Ms. Stein. In the interest of justice, the trial court allowed Ms. Stein the opportunity to locate Ms. Kerns from the information provided in Gretna's personnel file for Ms. Kerns. After two continuations of the trial, Ms. Stein was still unable to locate Ms. Kerns. At the adverse presumption hearing, Gretna argued that it provided all of the information it had for Ms. Kerns and even attempted to contact Ms. Kerns, to no avail. The trial court found that Ms. Kerns was an unavailable witness and allowed Ms. Kerns' deposition to be admitted into evidence, as both parties agreed that the deposition should have been admitted. The trial court then denied Ms. Stein's motion and any adverse inferences regarding the availability of Ms. Kerns for trial and proceeded with the trial.

After review, we do not find the trial court erred in not applying the uncalled witness rule in this matter. Gretna produced the information it had concerning the whereabouts for Ms. Kerns to Ms. Stein; thus, it cannot be said that Gretna attempted to hide Ms. Kerns from the proceeding. Furthermore, despite Ms. Stein's argument that she could have questioned Ms. Kerns regarding the incident, EMS Run Report, and training if her whereabouts were not hidden by Gretna, the assertion has no merit. Ms. Kerns testified through a deposition, where counsel for both sides were present. Ms. Stein had the opportunity to question Ms. Kerns about those things during the deposition but failed to do so. Accordingly, we find that the adverse presumption should not have been imputed against Gretna because it provided the information regarding Ms. Kerns' whereabouts and Ms. Kerns attended a deposition to give her testimony.

Refusal to allow rebuttal/impeachment witness to testify

Ms. Stein alleges the trial court erred in denying her the right to call rebuttal and/or impeachment witness, William "Liam" Pierce. She argues that the trial court had no basis for preventing Mr. Pierce from impeaching and rebutting the testimony of Gretna's witnesses at trial.

Gretna asserts the trial court properly excluded the testimony of Mr. Pierce because he was never identified prior to trial either in discovery or on Ms. Stein's trial witness list and no expert report was ever authored by him. Gretna further asserts that the admission of Mr. Pierce's testimony would have been in violation of the pre-trial order, which required the disclosure of experts and expert reports prior to the trial on the merits.

La. C.C.P. art 1551 provides that a trial court may issue a pre-trial order that controls the subsequent course of the action, such as the identification of witnesses, documents, and exhibits prior to trial. If a party's attorney fails to obey a pre-trial order, the court may render such orders that are just for the violation. La. C.C.P. art. 1551(C). Whether witnesses, expert or otherwise, are permitted to testify is within the trial judge's discretion and may only be overturned when that discretion is abused. Dufrene v. Willingham , 97-1239 (La. App. 5 Cir. 10/28/98), 721 So.2d 1026, 1032. The trial judge has wide discretion in excluding testimony from witnesses not listed in pre-trial agreements. Higgins v. Am. Nat'l Gen. Ins. Co. , 01-193 (La. App. 5 Cir. 9/25/01), 798 So.2d 1078, 1083.

During trial, the attorney for Ms. Stein informed the court that he was contemplating calling Mr. Pierce, who was present in the courtroom, as an expert witness for rebuttal and impeachment purposes. Opposing counsel objected to Mr. Pierce's testimony on the basis that he had not been identified as a witness prior to trial. The trial judge informed Ms. Stein's attorney that she did not conduct "trial by ambush" and thought that allowing an expert who had never been identified prior to trial to testify on rebuttal or for impeachment purposes was inappropriate under the rules of procedure. The trial judge noted that such a witness was certainly not allowed under the pre-trial order. The trial judge excluded Mr. Pierce from testifying at trial but allowed Ms. Stein to proffer his testimony.

After review, because the record does not reflect that Mr. Pierce was listed in any capacity on the pre-trial witness list for Ms. Stein, we find the record supports a basis for the trial judge to exclude the rebuttal and/or impeachment testimony of Mr. Pierce. Ms. Stein attempted to violate the pre-trial order, and the trial judge rendered a ruling that she thought was just. Accordingly, we do not find the trial court abused its discretion in excluding Mr. Pierce's testimony.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in favor of the City of Gretna and its insurer, American Alternative Insurance Corporation, and against Clovina Stein. Ms. Stein is to bear the costs of this appeal.

AFFIRMED

      The "Incident History Detail" generated by the Jefferson Parish Sheriff's Office notated that Ms. Stein felt like she was having a heart attack.

      The other defendants, Emergency Medical Services Paramedic Association, Mayor Ronnie C. Harris, Linda Kerns, Steven Verrett, and Ochsner Clinic Foundation were later dismissed from the action.

      We note that Ms. Stein amended her petition three times.

      Issues One and Two are interrelated and will be jointly addressed.

      We note that Ms. Stein lists, "The trial court erred in applying [the] gross negligence burden of proof to Appellant, rather than negligence standard" as an assignment of error; however, she did not brief any argument regarding Gretna's alleged general negligence. Therefore, our review will focus on the arguments provided in Ms. Stein's brief. See , Uniform Rules-Courts of Appeal, Rule 2-12.4(B)(4).

      Issues Four and Five are interrelated and will be jointly addressed.

      We note that the denial of Ms. Stein's request to amend her petition was reviewed in a supervisory writ, Stein v. City of Gretna, et al. , 16-530 (La. App. 5 Cir. 9/14/16)(unpublished writ disposition), writ denied , 16-1773 (La. 11/29/16), 210 So.3d 806.


source: Caselaw Access Project

license: Public Domain

text:
    BERNHARD MCC, LLC v. Kurt M. ZERINGUE, Robert G. Mayfield, Sr., Robert G. Mayfield, Jr., Cecil Passman, James Brian Carlisle & Nicholas Zazulak
    NO. 18-CA-30
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, BERNHARD MCC, LLC, Mark R. Beebe, Timothy M. Brinks, New Orleans, William D. Shea, Kellen J. Mathews
    COUNSEL FOR DEFENDANT/APPELLANT, KURT M. ZERINGUE, ROBERT G. MAYFIELD, SR, ROBERT G. MAYFIELD, JR., CECIL PASSMAN, JAMES BRIAN CARLISLE & NICHOLAS ZAZULAK, Robert E. Couhig, Jr., Jason A. Cavignac, New Orleans, Jack M. Capella, Metairie
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst
   JOHNSON, J.

This case involves claims of violations of the Louisiana Uniform Trade Secrets Act ("LUTSA") and the Louisiana Unfair Trade Practices Act ("LUTPA") brought by an employer against several of his former employees. In this appeal, Defendants, who are the former employees, appeal the trial court's granting of a preliminary and permanent injunction in favor of their former employer. For the reasons that follow, we vacate the judgment granting the injunction and remand the matter for further proceedings.

FACTS & PROCEDURAL HISTORY

On August 9, 2017, Bernhard MMC, LLC ("Bernhard") filed a petition for preliminary and permanent injunctions against six of its former employees: Kurt Zeringue, Robert Mayfield, Sr., Robert Mayfield Jr., Cecil Passman, James Carlisle, and Nicholas Zazulak (collectively "Defendants"). Bernhard alleged that Defendants were long-time employees of MMC entities of which Bernhard acquired membership interests in October 2015. Bernhard asserted that after the acquisition, Defendants became employees of Bernhard and continued in their same duties. Bernhard contended that as employees, each of the Defendants had access to confidential materials of the company, including employee wage rates, pricing structure information, bid information, estimates, proposals and other information pertaining to its business operations.

In May 2017, Defendants resigned their employment with Bernhard and began working with Regional Mechanical Services, LLC ("RMS"), a competitor of Bernhard. Bernhard alleged Defendants failed to return its confidential and proprietary information upon their termination and have used the misappropriated information to solicit and bid commercial construction projects on behalf of RMS in direct competition with Bernhard. It asserted Defendants' use of the confidential and proprietary information violates both the LUTPA, in that Defendants' use of the information is an unfair method of competition and constitutes unfair or deceptive acts, and the LUTSA, in that the information used by Defendants constitutes a trade secret.

Bernhard alleged Defendants' use of the confidential and proprietary business information resulted in lost revenues, loss of customers, loss of business goodwill, loss of business opportunities, loss of skilled labor, and loss of market share. As such, Bernhard sought preliminary and permanent injunctions against Defendants to prohibit their continued use of its confidential business information.

Defendants opposed the petition for injunctive relief, arguing the damages alleged by Bernhard were monetarily compensable and, thus, Bernhard would not suffer irreparable injury. A hearing on the preliminary injunction was held on August 23, 2017. During the hearing, Bernhard presented the testimony of its president, Philip Catanzaro, and submitted various exhibits, including confidentiality agreements, the Bernhard Employee Handbook, and various emails. In their defense, Defendants presented the testimony of one defendant, Kurt Zeringue. The trial court took the matter under advisement and subsequently rendered judgment on August 31, 2017, granting Bernhard's petition for preliminary and permanent injunction. Defendants filed a motion for appeal from this judgment on September 14, 2017, within the 15-day time period to take an appeal from a preliminary injunction under La. C.C.P. art. 3612. The trial court granted the motion for appeal on the same day.

Also on the same day, Bernhard filed a motion seeking to modify the August 31, 2017 judgment. In its motion, Bernhard noted that the judgment granted both a preliminary and a permanent injunction even though the only issue before the court was the preliminary injunction. As such, Bernhard sought a modification of the judgment to reflect only the granting of a preliminary injunction. Bernhard also requested the judgment be amended to specify the act or acts restrained by the judgment. Defendants objected to the motion to modify asserting that Bernhard was not entitled to a substantive modification of the judgment. On September 18, 2017, well after the order of appeal was signed, the trial court signed an amended judgment granting Bernhard's petition for preliminary injunction. This amended judgment was identical to the August 31, 2017 judgment except that it removed the word "permanent," clarifying that only a preliminary injunction had been granted.

One week later on September 25, 2017, Bernhard filed a second motion for modification of judgment again asking the trial court to modify its August 31, 2017 judgment. Like its first motion for modification, Bernhard again requested the trial court amend its judgment to describe the acts from which Defendants were enjoined. In its memorandum in support of its second motion for modification, Bernhard alternatively requested a partial new trial for the sole purpose of determining the specific conduct from which Defendants were enjoined. On September 27, 2017, without a hearing, the trial court signed a second amended judgment that granted Bernhard's petition for preliminary injunction, prohibited Defendants from certain acts, and ordered Defendants to return all of Bernhard's confidential and proprietary business information and any other material constituting a trade secret. Although maintaining that the two amended judgments were null and void, Defendants timely filed motions for appeal from both the amended judgment as a precaution.

ISSUES

Defendants first argue that the two amended judgments are null and void because they substantively alter the original judgment that had been appealed. Second, Defendants contend the original judgment granting injunctive relief failed to describe the prohibited acts and, thus, is fatally defective. Third, Defendants assert injunctive relief was not warranted because Bernhard failed to prove irreparable harm and that it is likely to succeed on the merits.

LAW & ANALYSIS

A preliminary injunction is an interlocutory procedural device designed to preserve the status quo between the parties pending a trial on the merits. Tobin v. Jindal , 11-838 (La. App. 1 Cir. 2/10/12), 91 So.3d 317, 320. Although the judgment on a preliminary injunction is interlocutory, a party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal. La. C.C.P. art. 3612.

The trial court has great discretion in determining whether a preliminary injunction is warranted; thus, the trial court's ruling will not be disturbed on appeal absent a clear abuse of discretion. Ryan Gootee General Contractors, LLC v. Plaquemines Parish School Board & One Construction, Inc. , 15-325 (La. App. 5 Cir. 11/19/15), 180 So.3d 588, 597.

The primary purpose of injunctive relief is to prevent the occurrence of future acts that may result in irreparable injury, loss, or damage to the applicant. Ryan Gootee, supra at 598. Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue and must make a prima facie showing that he will prevail on the merits of the case. The threat of irreparable injury need not be shown when the deprivation of a constitutional right is at issue or when the act sought to be enjoined is unlawful. Id. Irreparable injury means the petitioner cannot be adequately compensated in money damages or suffers injuries which cannot be measured by pecuniary standards. Yur-Mar, LLC v. Jefferson Parish Council , 11-669 (La. App. 5 Cir. 3/13/12), 90 So.3d 1137, 1140.

We find that we cannot reach the issue of the propriety of injunctive relief in this case because of procedural irregularities and defects in the judgments on appeal discussed infra .

Under La. C.C.P. art. 2088, "[t]he jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal." Thereafter, the trial court retains jurisdiction "only over those matters not reviewable under the appeal." Id. Article 2088 lists the types of matters over which the trial court continues to have jurisdiction after an order of appeal, none of which apply to this case. Matters "not reviewable under the appeal," has generally been interpreted to give the trial court continuing jurisdiction over all issues that are unaffected by the appeal. State through Dept. of Social Services v. Southern Baptist Hosp. , 94-2228 (La. App. 4 Cir. 10/12/95), 663 So.2d 443, 448-49, writ denied , 95-2751 (La. 1/26/96), 666 So.2d 676.

In this case, an appeal was taken on September 14, 2017 from trial court's granting of injunctive relief in the August 31, 2017 judgment. An order of appeal was signed the same day. At that point, the trial court no longer had jurisdiction over matters pertaining to injunctive relief. Bernhard's two motions to modify the August 31, 2017 judgment-one of which was filed on the same day the order of appeal was granted and the other which was filed almost two weeks after the order of appeal was granted-directly related to the matter reviewable under the appeal. Accordingly, the trial court did not have jurisdiction to amend the August 31, 2017 judgment. Consequently, the amended judgments dated September 18, 2017 and September 27, 2017 are absolute nullities. Brennan's, Inc. v. Colbert , 13-943 (La. App. 4 Cir. 9/25/13); 125 So.3d 537, 540, writ denied , 13-2917 (La. 6/20/14), 141 So.3d 285. See also Fairfield Development Co. v. Jackson , 438 So.2d 664, 668 (La. App. 2d Cir. 1983) (where the appellate court found the trial court was divested of jurisdiction to act on the defendant's rule to dissolve a preliminary injunction after an appeal had been granted).

Having concluded that the amended judgments of September 18 and 27, 2018 are absolute nullities, we turn to the original August 31, 2017 judgment. The judgment states in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Verified Petition for Preliminary and Permanent Injunction, filed by the plaintiff, Bernhard MMC, LLC, and against the defendants, Kurt M. Zeringue, Robert G. Mayfield, Sr., Robert G. Mayfield, Jr., Cecil Passman, James Brian Carlisle, and Nicholas Zazulak, be and is hereby, [sic] GRANTED .

As recognized by Bernhard in its motion to modify judgment, the judgment improperly grants a permanent injunction when the only issue before the court was the preliminary injunction. See footnote two, supra . In its appellee brief, Bernhard asks this Court to affirm the trial court's first amended judgment dated September 18, 2017 or, alternatively, to reform the judgment to correct this clear inadvertent error. As discussed above, the trial court's first amended judgment was an absolute nullity; thus, it cannot be affirmed. Additionally, we find the August 31, 2017 judgment to be so defective, beyond the inclusion of the word "permanent," that it cannot be reformed and must be vacated.

Louisiana Code of Civil Procedure article 3605 states that a preliminary injunction "shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained." A judgment that grants a preliminary injunction without describing the prohibited conduct is null and void. Phillips' Bar & Rest., Inc. v. City of New Orleans , 12-1396 (La. App. 4 Cir. 4/24/13), 116 So.3d 92, 108, writs denied , 13-1410 (La. 10/11/13), 123 So.3d 1226 and 13-1417 (La. 10/11/13), 123 So.3d 1227. Here, the August 31st judgment merely grants Bernhard's petition for injunctive relief without specifying the acts enjoined and, thus, is clearly null and void as an injunction.

DECREE

For the foregoing reasons, we vacate all three judgments, dated August 31, September 18, and September 27, 2017, purporting to grant injunctive relief in favor of Bernhard. We find the original August 31st judgment is null and void for lack of specificity as required by La. C.C.P. art. 3605 and the September 18th and 27th judgments are absolute nullities because the trial court had been divested of jurisdiction at the time the judgments were signed. This matter is remanded for further proceedings.

JUDGMENTS VACATED; MATTER REMANDED

      Bernhard is a mechanical, electrical and plumbing contracting business.

      We note that at the outset of the hearing, Bernhard indicated the parties were present for purposes of a preliminary injunction. Although the parties presented live testimony and evidence like an ordinary proceeding, there is nothing in the record indicating the parties agreed to consolidate the trial on the merits of a permanent injunction with the hearing on a preliminary injunction. [See French Market Vendors Association v. French Market Corp. , (La. App. 4 Cir. 2/13/13); 155 So.3d 514, 518, where the court stated the parties may agree to consolidate the trial on the merits of a permanent injunction with a hearing on the preliminary injunction, but noted that a preliminary injunction hearing cannot be converted to a permanent injunction hearing absent a stipulation by the parties. The court explained that a preliminary injunction may issue on a prima facie showing though verified pleadings or supporting affidavits that a party is entitled to such relief, while a permanent injunction requires proof by a preponderance of the evidence at an evidentiary hearing in an ordinary proceeding that the party is entitled to the permanent injunction.]

      La. C.C.P. art. 2088 provides that after an order of appeal is granted, the trial court retains jurisdiction to:
      (1) Allow the taking of a deposition, as provided in Article 1433;
      (2) Extend the return day of the appeal, as provided in Article 2125;
      (3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
      (4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
      (5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
      (6) Grant an appeal to another party;
      (7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
      (8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;
      (9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
      (10) Set and tax costs and expert witness fees.

      We note that under La. C.C.P. art. 1951, "a final judgment may be amended by the trial court at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation." Further, the judgment may only be amended after a hearing, unless all parties consent to the amendment or if no opposition is made after notice to the parties. Id. While Article 1951 allows the correction of a "clerical error," it does not authorize substantive amendments. Where there is an error of substance within a judgment, the proper remedy is a timely motion for new trial or appeal. Bourgeois v. Kost , 02-2785 (La. 5/20/03), 846 So.2d 692, 695. An amended judgment that makes substantive changes and is rendered without recourse to these procedures is an absolute nullity. Id.
      We recognize that a preliminary injunction is not a final judgment, but rather is interlocutory. Reasonover v. Lastrapes , 09-1104 (La. App. 5 Cir. 5/11/10), 40 So.3d 303, 308. Generally, an interlocutory judgment may be amended at any time prior to the rendition of a final judgment on the merits and is not governed by the requirements of La. C.C.P. art. 1951. Willwoods Community v. Essex Ins. Co. , 09-651 (La. App. 5 Cir. 4/13/10), 33 So.3d 1102, 1113, writ denied , 10-1338 (La. 10/15/10), 45 So.3d 1111 ; State v. Shaddinger , 97-439 (La. App. 5 Cir. 10/28/97), 702 So.2d 965, 970, writ denied , 97-2989 (La. 2/6/98), 709 So.2d 743. However, because a preliminary injunction is an appealable judgment under La. C.C.P. art. 3612, the provisions of La. C.C.P. art. 2088 apply, and the trial court is divested of jurisdiction over all matters reviewable under the appeal upon the granting of an order of appeal.

      We would be remiss if we did not point out that the second amended judgment dated September 27, 2017, which we have determined is an absolute nullity, also appears to lack the specificity of the acts to be enjoined as required by La. C.C.P. art. 3605. Specifically, without reference to the petition and/or documents submitted at the hearing, it is unknown what constitutes confidential and proprietary business from which Defendants are prohibited from using or soliciting or what obligations Defendants owe Bernhard. For this reason, the trial court is cautioned against relying on the second amended judgment on remand.


author: WICKER, J.

text:
    Rico LEE v. PULL-A-PART OF NEW ORLEANS WEST, LLC and XYZ Insurance Company
    NO. 18-CA-47
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, RICO LEE, Pius A. Obioha, LaMarre T. Elder, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, PULL-A-PART OF NEW ORLEANS WEST, LLC AND THE PHOENIX INSURANCE COMPANY, Michael R. Zsembik, Metairie
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Marion F. Edwards, Judge Pro Tempore
   WICKER, J.

Plaintiff, Rico Lee, appeals the trial court judgment in favor of defendant, Pull-A-Part of New Orleans, LLC. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On April 27, 2016, plaintiff, Rico Lee, filed suit in the Twenty-Fourth Judicial District Court for the Parish of Jefferson against defendants, Pull-A-Part of New Orleans West, LLC and The Phoenix Insurance Company, for damages arising out of an alleged August 13, 2015 accident. In his petition, plaintiff alleged that, while a customer at Pull-A-Part's vehicle yard in Harvey, he sustained personal injuries when the rear end of a Dodge pickup truck-propped up on rims to hold it in place-suddenly and without warning fell onto his foot.

The matter proceeded to trial before a twelve-person jury. At trial, plaintiff testified that, on August 13, 2015, he went to Pull-A-Part's vehicle yard, where he had been several times before, to obtain a part off of a pick-up truck. The yard had several vehicles lined up and propped up on rims, approximately three feet off of the ground. Plaintiff testified that he slid under a Dodge Ram pickup truck to obtain a part, but realized that he needed a certain tool before he could take the part off of the truck. He stated that, as he slid out from under the truck, he was waist-deep under the truck when he heard an "unh" sound. Plaintiff stated that the rear end of the truck suddenly and without warning fell onto his foot. Plaintiff testified that he never touched the truck and that his friend, Mervin Wright, accompanied him to the yard and witnessed the accident. He further stated that several Pull-A-Part employees observed him after the accident, and that one employee gave Mr. Wright a wind-up jack to manually raise the car off of plaintiff's foot. Plaintiff testified that EMS arrived to the scene and treated him with an ice pack.

Plaintiff testified that he did not seek any further medical treatment on the date of the accident, but that his primary care physician, Dr. Ogbuokiri, examined him the following day. At some point, plaintiff went to the emergency room at University Medical Center for X-rays and testing. Plaintiff testified that he fractured his foot and wore a boot for several months. Plaintiff acknowledged that he had experienced foot pain prior to this accident, but that he had never received any medical treatment prior to this accident.

Dr. Godwin Ogbuokiri, the medical director for Downman Urgent HealthCare Clinic, testified as an expert in general medicine at trial. Dr. Ogbuokiri testified that he examined plaintiff on August 14, 2015. Plaintiff reported to Dr. Ogbuokiri that the rear end of a vehicle landed on his foot the day prior and that he was "stuck" under the vehicle and struggled for six to ten minutes thrashing about until others extricated him from under the vehicle. Dr. Ogbuokiri testified that plaintiff's foot appeared swollen, so he took an x-ray of his foot and told plaintiff that he had a nondisplaced fracture in his foot. Concerning his diagnosis of a nondisplaced fracture, Dr. Ogbuokiri testified, "I took caution. I was convinced that he was having a problem with his foot, and I wasn't really sure whether he have [sic] a fracture ...." Dr. Ogbuokiri put plaintiff's foot in a cast and sent him to the hospital for a more definitive study. Dr. Ogbuokiri acknowledged that subsequent hospital records reflect that plaintiff did not in fact sustain any fracture to his foot. Dr. Ogbuokiri testified that plaintiff treated with him between a fourteen-month and two-year time period and that his medical bills totaled approximately $6,000.00.

Dr. Fritz Fidele, a chiropractic physician with Plaza Medical Center , treated plaintiff beginning January 4, 2017, at which time plaintiff complained of left foot pain and lower back pain and stiffness, through April 26, 2017. Dr. Fidele testified that plaintiff's foot had no visible signs of injury, such as swelling, at the time of his visit. However, plaintiff reported foot and back pain to Dr. Fidele and relayed that he had suffered a stroke as a result of stress related to the accident. Dr. Fidele testified that a technician with his office conducted a nerve conduction study and that Dr. Friedmann, a board-certified neurologist, reviewed the nerve conduction study results and found that plaintiff sustained nerve damage. Dr. Fidele testified that plaintiff was subsequently examined on one occasion by Dr. Voorhies, a neurologist, who opined that plaintiff was not a surgical candidate but referred plaintiff back to an orthopedist for his complaints of foot pain.

Defendants presented the testimony of Dr. Michael Happel, a board certified neurologist with a specialty in electrodiagnostic testing. Dr. Happel testified that he reviewed the EMS report from the date of the accident, which he stated documented "very little," as well as all of plaintiff's medical records from various providers, including the X-ray images taken of plaintiff's foot. Dr. Happel testified that the medical records reflect that plaintiff potentially sustained a slight contusion to his foot. He found that, given plaintiff's explanation of how the accident occurred, he would expect plaintiff to have sustained a crushed bone or foot fracture from the described force.

Mr. Joseph Bistes, Vice-President of Business Development for Pull-A-Part, testified at trial that he works in the company's corporate Atlanta office but previously worked in the Harvey yard for approximately three years. Mr. Bistes testified that Pull-A-Part is not classified as a junkyard but is a "very organized" used auto part retailer. He testified that the Harvey yard holds approximately 1200 vehicles, which are organized in rows according to manufacturer: General Motors; Ford; Dodge Chrysler Jeep; and imported vehicles. Mr. Bistes testified that the vehicles are placed on "rims placed on stands, and they weld it everywhere it's touched ...." He further testified that, every morning, two or three employees, titled the "setting crew," walk the display yard and touch each individual car and, "literally try to knock it [each vehicle] off the stands."

At the conclusion of trial, the jury returned a verdict in favor of defendant, finding that Pull-A-Part was not negligent in causing or contributing to plaintiff's alleged accident or injuries.

DISCUSSION

On appeal, plaintiff first claims that the jury's verdict in defendant's favor was manifestly erroneous and should be overturned. Secondly, plaintiff contends that the trial court erred in failing to instruct the jury on the doctrine of res ipsa loquitur . Plaintiff asks this Court to vacate the trial court judgment and conduct a de novo review of the evidence presented and render judgment in his favor. Review of Jury Verdict Based on Evidence Presented

In this case, plaintiff claims that he was injured when a Dodge Ram pick-up truck, in the custody and control of defendant, Pull-A-Part, fell onto his foot resulting in injuries. The applicable law controlling damages caused by things in a defendant's custody is La. C.C. art. 2317.1, which provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Thus, to prove liability for an unreasonably dangerous defect, a plaintiff has the burden to show that the thing was in the defendant's custody or control, it had a vice or defect that presented an unreasonable risk of harm, the defendant knew or should have known of the unreasonable risk of harm, and the damage was caused by the defect. La. C.C. art. 2317.1 ;

Dauzat v. Thompson Constr. Co. , 02-989 (La. App. 5 Cir. 1/28/03), 839 So.2d 319. "The addition of the element of knowledge to article 2317.1 has effectively turned it from strict liability to a negligence claim." Wiltz v. Floor & Decor Outlets of Am. , 15-516 (La. App. 5 Cir. 2/24/16), 186 So.3d 1204, 1208 ; see also Monson v. Travelers Prop. & Cas. Ins. Co. , 06-921 (La. App. 5 Cir. 4/24/07), 955 So.2d 758, 761. Moreover, at trial, the fact-finder is afforded wide discretion in assessing the probative value of evidence and is free to accept or reject, in whole or in part, the testimony of any witness. Clark v. Simmons , 14-133 (La. App. 5 Cir. 12/23/14), 167 So.3d 140, 143.

At trial, plaintiff put forth no evidence concerning the alleged defect as required under La. C.C. art. 2317.1. Plaintiff did not point to any specific defect to the vehicle or the stand on which it was placed. Plaintiff failed to introduce any photographs of the vehicle or the allegedly defective stand, or present any expert or other testimony as to what may have caused the accident. Plaintiff was the only witness to testify as to how the accident allegedly occurred, despite the fact that he suggested numerous individuals were present during or immediately after the accident. Plaintiff claimed that his friend, Mr. Wright, witnessed the accident and used a manual jack to raise a Dodge Ram pick-up truck off of plaintiff's foot. Further, plaintiff testified that several Pull-A-Part employees arrived immediately after the accident. However, plaintiff failed to depose any of these witnesses prior to trial or call any of these witnesses at trial to corroborate his testimony concerning how the accident occurred.

Contrarily, defendant presented Mr. Bistes' testimony discussing the set-up in the Harvey yard, including the vehicle rim stands, which are welded together, and Pull-A-Part's daily safety checks of each vehicle. Further, defendants presented the expert testimony of Dr. Happel, who testified that, had the accident occurred as plaintiff testified, he would expect plaintiff to have sustained a crushed bone or foot fracture. The medical testimony-although difficult to follow and not corroborated by any related medical records for reference-reflects that plaintiff was treated only with an ice pack immediately after the alleged accident and did not sustain any foot or ankle fracture.

Considering the irreconcilable medical testimony and lack of evidence surrounding the accident, we find that the jury was well within its discretion to find that plaintiff failed to meet his burden to prove that Pull-A-Part was negligent in causing plaintiff's alleged accident and injuries under La. C.C. art. 2317.1.

Res Ipsa Jury Charge

On appeal, plaintiff contends that the trial court erred in refusing to charge the jury on the doctrine of res ipsa loquitur . The Louisiana Supreme Court has described the doctrine of res ipsa loquitur as follows:

The doctrine of res ipsa loquitur involves the simple matter of a plaintiff's using circumstantial evidence to meet the burden of proof by a preponderance of the evidence. McCormick on Evidence § 342, at 966-67 (E. Cleary 3d ed. 1984). The doctrine merely assists the plaintiff in presenting a prima facie case of negligence when direct evidence is not available. J. Lee & B. Lindahl, supra , § 1522 n. 4. The doctrine permits, but does not require, the trier of fact to infer negligence from the circumstances of the event. McCormick on Evidence, supra, § 342, at 967.

Cangelosi v. Our Lady of the Lake Reg'l Med. Ctr., 564 So.2d 654, 665 (La. 1990).

Application of the res ipsa doctrine is not appropriate where specific acts of negligence are alleged and direct evidence is available to explain a reason for plaintiff's damages or the defendants' actions. Valence v. Jefferson Parish Hosp. Dist. No. 2 , 13-48 (La. App. 5 Cir. 10/30/13), 128 So.3d 455, 461. Further, application of the res ipsa doctrine does not relieve the plaintiff of the ultimate burden of proving by a preponderance of the evidence all of the elements necessary for recovery. Sandifer v. City of Kenner , 17-58 (La. App. 5 Cir. 5/31/17), 221 So.3d 307, 318.

The record reflects that neither party submitted specific jury charges to the trial court. The record further reflects that, following the jury charge conference, the trial judge asked whether plaintiff's counsel objected to any of the court's jury charges, to which plaintiff's counsel objected only to the applicability of La. C.C. art. 2317.1. Plaintiff's counsel contended that La. C.C. arts. 2317 and 2317.1 do not apply to this case-without any suggestion as to what law counsel believed did apply under the facts of this case. Under La. C.C.P. art. 1793, "[a] party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection." In order to preserve the right to appeal a trial court's failure to give a requested instruction or its giving of an erroneous instruction, a party must not only make a timely objection, but must state the grounds of the objection. Oregan v. Cashio , 16-563 (La. App. 5 Cir. 4/26/17), 220 So.3d 845, 854 (quotations omitted).

In the absence of an objection to the jury charges on the basis of the applicability of res ipsa loquitur , properly raised in the trial court, the issue has not been preserved for appellate review and we will not address it. See Semco, LLC v. Grand Ltd. , 16-342 (La. App. 5 Cir. 5/31/17), 221 So.3d 1004, 1037. Nevertheless, it appears, based upon our review of the record, that the trial court did charge the jury on the doctrine of res ipsa loquitur .

CONCLUSION

Accordingly, for the reasons provided herein, the trial court judgment is affirmed.

AFFIRMED

      On June 16, 2016, plaintiff filed a supplemental and amended petition to name the proper insurer.

      Plaintiff refused to go to the hospital with EMS.

      The parties stipulated pre-trial to Dr. Ogbuokiri's qualifications as an expert in the field of general medicine.

      Plaintiff subsequently complained of back pain, hip pain, and other injuries, which Dr. Ogbuokiri referred to as "delayed manifestation of injury." Dr. Ogbuokiri also suggested that plaintiff's back pain was "likely" related to the accident at issue and caused by a whiplash injury plaintiff sustained while struggling to extricate himself from under the vehicle. Dr. Ogbuokiri referenced a medical record which he stated reflects that plaintiff has a bulging or herniated lumbar disc. On cross-examination, defense counsel discussed hospital emergency room records from one year prior to the accident at issue where plaintiff complained of back pain. Dr. Ogbuokiri subsequently recommended that plaintiff obtain a lumbar MRI. The testimony is clear that plaintiff did not undergo the MRI testing when encouraged by Dr. Ogbuokiri, but plaintiff at some point did undergo a lumbar MRI. No medical records were introduced into evidence.

      The length of treatment is not clear from the testimony, and plaintiff failed to introduce any medical records into evidence for review.

      The parties stipulated to Dr. Fidele's expertise in chiropractic medicine.

      Dr. Fidele testified that the neurologist is not physically present when the nerve conduction study is performed. Rather, a neurologist reviews the results after the testing is performed by a technician.

      The parties stipulated at trial to Dr. Happel's qualifications as a board certified neurologist.

      Dr. Happel also discussed plaintiff's lumbar MRI results and testified that the results reflected nothing abnormal for a forty-five year-old individual, and that he would not recommend any lumbar surgery based on the MRI results. Dr. Happel also discussed a report of prior back pain, a nerve conduction study, and other test results that plaintiff presumably underwent. However, the expert testimony in this record is unclear, as there are no written medical records in evidence to corroborate the testimony.

      Mr. Bistes testified that the Harvey yard has approximately 20-24 employees. He stated that he did not contact the employees of the Harvey yard to question them about plaintiff's accident, indicating that he only spoke to Pull-A-Part's attorneys about the accident.

      Although plaintiff contends the doctrine of res ipsa loquitur applies in this case, plaintiff failed to present any evidence, despite available eyewitness testimony, to prove his allegations. The doctrine of res ipsa loquitur does not relieve a plaintiff from the burden to put forth evidence to support his claim. Sandifer v. City of Kenner , 17-58 (La. App. 5 Cir. 5/31/17), 221 So.3d 307, 318.

      Moreover, "[a] plaintiff's failure to obtain available direct evidence does not entitle him/her to the application of res ipsa loquitur ." Riggs v. Opelousas Gen. Hosp. Tr. Auth. , 08-591 (La. App. 3 Cir. 11/05/08), 997 So.2d 814, 818 (citing Linnear v. CenterPoint Energy Entex/Reliant Energy , 41,171, p. 10 (La. App. 2 Cir. 11/27/06), 945 So.2d 1, 22, reversed on other grounds , 06-3030 (La. 9/5/07), 966 So.2d 36.) Further, the Louisiana Supreme Court has instructed:
      It is well settled that res ipsa loquitur , Latin for "the thing speaks for itself," is an evidentiary doctrine utilized when there has been a highly unusual act/occurrence; there is no direct evidence to suggest that a defendant's negligence brought about said act/occurrence; and yet, the circumstances surrounding the anomalous event (coupled with the defendant's connection to the unusual act/occurrence) allow the finder of fact to conclude that the defendant was negligent.
      Lawson v. Mitsubishi Motor Sales of Am., Inc. , 05-0257 (La. 09/06/06), 938 So.2d 35, 43-44.

      Plaintiff's counsel stated to the Court, "The Civil Code Article 2317 and 2317.1 does not-do not apply to this case .... I do know that Defense would like to have this-these statutes in the charges, but we vigorously object to it-to these articles for the fact that the vehicle was stacked on top of the rims."

      Counsel did not object to the sufficiency of the res ipsa charge given on the record.


author: WINDHORST, J.

text:
    STATE of Louisiana v. Christian HERNANDEZ
    NO. 18-KA-3
    Court of Appeal of Louisiana, Fifth Circuit.
    June 6, 2018
    Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Juliet L. Clark, COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA
    John T. Fuller, New Orleans, COUNSEL FOR DEFENDANT/APPELLANT, CHRISTIAN HERNANDEZ
    Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   WINDHORST, J.

Defendant, Christian Hernandez, appeals his convictions and sentences for armed robbery with a firearm and attempted second degree murder. For the following reasons, we affirm defendant's convictions and sentences and remand with instructions.

Background

On January 27, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Christian Hernandez, with armed robbery with a firearm, in violation of La. R.S. 14:64 and La. R.S. 14:64.3 (count one) and attempted second degree murder, in violation of La. R.S. 14:30.1 and La. R.S. 14:27 (count two). Defendant was arraigned on January 30, 2014, and pled not guilty.

On July 17, 2015, defendant withdrew his not guilty pleas and pled guilty as charged. On July 20, 2015, the trial judge sentenced defendant to imprisonment at hard labor for twenty-three years plus an additional five-year sentence at hard labor pursuant to La. R.S. 14:64.3 on count one, and imprisonment at hard labor for twenty-eight years on count two, with both sentences including the enhancement, to be served without benefit of parole, probation, or suspension of sentence. The trial judge also ordered those sentences to run concurrently with each other and with any other sentences that defendant may be currently serving.

On June 6, 2017, defendant filed an Application for Post-Conviction Relief (APCR) arguing that he was not adequately informed of the consequences of his plea and of the minimum possible sentences. The trial judge dismissed the APCR without prejudice and advised defendant to seek an out-of-time appeal as set forth in State v. Counterman, 475 So.2d 336 (La. 1985). On August 1, 2017, defendant filed a notice of intent to apply for a writ of review. On August 31, 2017, this Court granted the writ for the limited purpose of vacating the district court's order dismissing the APCR, and remanding the matter to the district court with instructions to construe defendant's timely filed APCR

as a request for an out-of-time appeal. State v. Hernandez, 17-KH-430 (La. App. 5 Cir. 8/31/17) (unpublished writ disposition). On September 15, 2017, the trial judge granted defendant an out-of-time appeal and dismissed the APCR without prejudice.

Because defendant pled guilty, the underlying facts were not fully developed at a trial. Nevertheless, the State alleged in the amended bill of information that on or about March 8, 2013, Christian Hernandez and his co-defendants, Kevin Rivas and Leonardo Paredes-Morales robbed Louis Alvarado while armed with a dangerous weapon, "to wit: a firearm as per La. R.S. 14:64.3" (count one). The State alleged in that same amended bill of information that on March 8, 2013, Hernandez and his co-defendant, Rivas attempted the commit second degree murder of Louis Alvarado. During the colloquy, the State provided the following factual basis:

If the State had proceeded to trial against both Defendants in Case No. 14-0436 it would have proven beyond a reasonable doubt that on March 8th, 2013 that both Defendants violated Louisiana Revised Statute 14:64 and they did rob Louis Alvarado while armed with a dangerous weapon under the provision of Louisiana Revised Statute 14:64.3.
Furthermore, it would have proven beyond a reasonable doubt that both Defendants on that same date, March 8th, 2013 violated Louisiana Revised Statute 14:27:30.1 in that they did attempt to commit second degree murder of Louis Alvarado.
Your Honor, both of these offenses occurred in the Parish of Jefferson.

Defendant indicated that he committed the crimes to which he was pleading guilty.

Assignments of Error

Defendant asserts that he has waived his right to appeal, that his application for post-conviction relief was timely and properly filed, and the merit of his claims should be determined after an evidentiary hearing. Defendant also asserts that his decision to plead guilty was based on misinformation about the rate of good-time he would receive, and the absence of any information regarding the minimum possible sentence. For these reasons, defendant also asserts he was denied effective assistance of counsel. Defendant further asserts that his ineffective assistance of counsel and invalid guilty plea claims should be addressed by the trial court.

Assignment of Error One

Defendant argues that he waived his right to appeal at the time of his guilty plea, and therefore, his APCR was timely filed and should be addressed. On July 17, 2015, defendant pled guilty as charged, and on July 20, 2015, the trial judge sentenced defendant. He did not appeal his convictions and sentences. As a result, his convictions and sentences became final thirty days after he was sentenced, or on August 19, 2015.

La. C.Cr.P. art. 924.1 provides: "[a]n application for post conviction relief shall not be entertained if the petitioner may appeal the conviction and sentence which he seeks to challenge, or if an appeal is pending." The Official Comments to La. C.Cr.P. Art. 924.1 state that "[t]his article reaffirms the post appellate nature of the procedure. Post conviction relief is not designed to take the place of an appeal. The petitioner must first exhaust whatever appellate rights he has." Louisiana jurisprudence also provides that a defendant's appeal rights must be exhausted before filing an application for post-conviction relief. State v. Singleton, 03-1307 (La. App. 5 Cir. 03/30/04), 871 So.2d 596.

Defendant's APCR was premature as he had not exhausted his appellate rights when it was filed. As such, the trial judge did not err by granting defendant an out-of-time appeal and by dismissing the APCR without prejudice.

Assignment of Error Two

Defendant argues that misinformation about the rate of good time he would receive and the absence of any information regarding the minimum possible sentences influenced his decision to plead guilty. Defendant asserts that neither his attorney nor the trial judge advised him that the required amount of service on his sentences would be significantly longer because the offenses are crimes of violence. Defendant also asserts that the trial judge failed to advise him of the minimum sentences pursuant to La. C.Cr.P. art. 556.1, and that if he had known such, he would not have pled guilty in return for a sentence of more than twenty-three years of incarceration. Given our conclusions under assignments of error three and four, we only address the merits of this assignment of error as it is directed to the trial judge.

In State v. Roe, 05-116 (La. App. 3 Cir. 06/01/05), 903 So.2d 1265, the Louisiana Third Circuit Court of Appeal, held that the trial court is not obligated to inform defendant that good time or parole would be barred. Thus, defendant's claim that the trial judge did not properly advise him regarding good time and parole lacks merit.

Defendant's claim that his guilty plea was involuntary because the trial judge did not advise him of the minimum mandatory sentence also lacks merit. Based on our review of the record, we find that defendant was not prejudiced by this as he was fully aware of the crimes to which he was pleading guilty and the consequences of his guilty pleas. The record indicates defendant executed a detailed plea form, which sets forth the sentences to be imposed and all of the rights waived by the guilty plea. The trial court conducted a Boykin colloquy with defendant and explained to him the rights he was waiving by pleading guilty. Defendant answered all the trial court's questions throughout the plea colloquy and sentencing. Defendant's sentences are consistent with the plea agreement, within the statutory limits, and far less than the potential maximum. Defendant did not reserve any rights to appeal pretrial rulings of the trial court prior to pleading guilty, and had the opportunity to ask questions regarding his plea and sentence but did not.

Considering the above, we find defendant's assertions that he would not have pled guilty had the trial judge advised him of the mandatory minimum sentence for his crimes and the difference in calculating good time for crimes of violence are without merit.

Assignments of Error Three and Four

Defendant asserts that his trial counsel was ineffective because he did not inform him of the minimum possible sentences and the correct rate of good time credits he would receive on his sentences. He contends that post-conviction procedures permit similarly situated petitioners to present testimony and to be represented by counsel during an evidentiary hearing and that he has not been afforded this opportunity. Defendant argues that his claims of ineffective assistance of trial counsel and invalid guilty pleas should be addressed by the trial court in an evidentiary hearing. He further argues that without a hearing, he cannot meet his burden of proof, and his constitutional right to procedural and substantive due process would be denied.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, rather than by direct appeal. However, when the record contains sufficient evidence to rule on the merits of the claim, and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Taylor, 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595.

Based on the record and given defendant's assertion that an evidentiary hearing is necessary to address his claims, we do not consider the merits of defendant's ineffective assistance of counsel claims. These claims would be most appropriately addressed in an APCR in the district court where an evidentiary hearing could be conducted after defendant's appeal rights have been exhausted.

Errors Patent

We reviewed the record for errors patent and found the following. La. C.Cr.P. art. 920 ; State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The uniform commitment order (UCO) indicates that defendant was sentenced to imprisonment at hard labor for twenty-eight years, while the transcript reflects that defendant was sentenced to imprisonment at hard labor for twenty-three years and plus an additional five years at hard labor pursuant to La. R.S. 14:64.3 for a total of twenty-eight years. The transcript prevails. State v. Lynch, 441 So.2d 732 (La. 1983). Therefore, we remand this case and instruct the trial judge to correct the UCO to indicate defendant's sentence and the five-year enhancement. We also instruct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department. See State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136 (citing La. C.Cr.P. art. 892(B)(2) ).

Conclusion

For the foregoing reasons, we affirm defendant's convictions and sentences and remand with instructions.

AFFIRMED AND REMANDED

      The trial judge referred to defendant, Christian Hernandez, and co-defendant, Kevin Rivas.

      Defendant contends that since he was sentenced, he has learned that he must serve a minimum of eighty-five percent of the sentences imposed and that he would receive good time at the rate of only three days for every seventeen days served and not one and one-half days of good time for every day served pursuant to La. R.S. 15:571.3(B)(1)(a) and (B)(2).

      Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).