ANA ABIGAIL GONOGORA NO. 22-CA-392
VERSUS FIFTH CIRCUIT
TAQUERIA LA CONQUISTADORA COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7, STATE OF LOUISIANA NO. 20-1125 HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING
May 03, 2023
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst
AFFIRMED SJW SMC MEJ COUNSEL FOR PLAINTIFF/APPELLEE, ANA ABIGAIL GONOGORA Cesar R. Burgos Robert J. Daigre Gabriel O. Mondino George M. McGregor Leila M. Bonilla William R. Penton, III.
COUNSEL FOR DEFENDANT/APPELLANT, TAQUERIA LA CONQUISTADORA Michael H. Idoyaga WINDHORST, J.
In this matter, defendant/appellant, Taqueria La Conquistadora (“Taqueria”
or “defendant”), appeals the May 16, 2022 workers’ compensation court’s judgment
ordering Taqueria to pay plaintiff/appellee, Ana Abigail Gongora, temporary total
disability benefits, supplemental earnings benefits, past and future medical expenses,
penalties, and attorney’s fees. Upon review, we affirm the judgment of the workers’
compensation court.
FACTS and PROCEDURAL HISTORY
On February 14, 2020, Ms. Gongora filed a disputed claim for compensation
against Taqueria for injuries resulting from a slip and fall that occurred while
working at Taqueria on December 9, 2019. She claimed she injured her head, neck,
right shoulder, and back. In the disputed claim form, she indicated that no medical
treatment had been authorized, and that no wage benefits had been paid. She also
stated that Carolina, a co-worker, witnessed the accident.
Defendant answered the disputed claim form, denying that Ms. Gongora
injured herself while working. Defendant asserted that Ms. Gongora worked for
Taqueria for one day, and that the owner had no recollection or record of her
suffering an injury.
The workers’ compensation court issued a scheduling order on December 12,
2020, setting trial for March 15, 2021. This trial date was eventually continued, and
trial took place on March 10, 2022. The scheduling order stated that the discovery
deadline was 30 days prior to trial, and that trial exhibits and witness lists shall be
filed on the day of trial.
On January 10, 2022, Ms. Gongora filed a motion to strike defenses against
defendant for failing to participate in discovery. Therein, Ms. Gongora sought to
strike all of defendant’s evidence that Ms. Gongora was not working at the time she
was injured. Ms. Gongora asserted that she had served defendant with a subpoena
22-CA-392 1 duces tecum for documents, along with her notice of deposition. At the deposition,
defendant failed to produce any documents or a verification for its discovery
responses, which Ms. Gongora had previously requested. In the motion, Ms.
Gongora asserted that Taqueria’s owner, Ms. Carmen Diaz, had represented at her
deposition that defendant would produce the documents, as well as the verification
for the discovery responses.
Ms. Gongora also stated in the motion that defendant had refused to
participate in court-scheduled mediation, and had only retained counsel on the eve
of the hearing to confirm a default, which was based on defendant’s failure to
respond to the disputed claim form. In support of her contention that defendant was
uncooperative, Ms. Gongora also pointed out that defendant had previously
requested a continuance of the July 21, 2021 trial date due to Taqueria’s owner being
out-of-town attending to a medical issue for her daughter, but never produced any
evidence supporting this request.
In the motion, Ms. Gongora further argued that defendant was only interested
in delaying the progress of her claim and asked the court to strike all of defendant’s
defenses. Alternatively, she asked the court to issue an order compelling defendant
to produce the requested documents.
After a hearing, by judgment dated March 4, 2022, the workers’ compensation
court denied Ms. Gongora’s motion to strike in part and granted the motion in part,
ordering defendant to produce several requested documents. The court also awarded
Ms. Gongora sanctions and attorney fees. The order stated that, “Failure to comply
with the above Orders may result in further sanctions imposed by the Court and
reconsideration of Claimant’s Motion to Strike.” Defendant did not produce the
requested documents as ordered.
On March 10, 2022, the day of trial, Ms. Gongora orally objected to
defendant’s newly-announced witness, Carolina Diaz, asserting that defendant
22-CA-392 2 informed her on March 8, 2022, two days before trial, that Carolina Diaz would be
a witness. The workers’ compensation court granted the oral motion to strike
Carolina as a witness based on defendant’s untimely notice two days before trial that
she would be a witness.
At trial, the Court heard live testimony from Ms. Gongora and Ms. Diaz,
Taqueria’s owner. Based on the testimony and evidence presented, the workers’
compensation court found that Ms. Gongora had established that an injury occurred
in the course and scope of her employment and awarded benefits, penalties, and
attorney’s fees.
LAW and ANALYSIS
In its only assignment of error, defendant asserts that the workers’
compensation court erred in striking Carolina Diaz as a witness for the defense of
this claim. Defendant contends that the workers’ compensation court erroneously
found its notice of this witness untimely. Defendant argues that Carolina was well
known to Ms. Gongora for approximately three years before the trial, and that her
counsel had the opportunity to depose her or otherwise question her. Defendant
relies on the fact that on her disputed claim form, Ms. Gongora listed Carolina as a
witness, specifically “Carolina, who was mopping, witnessed the accident.”
Defendant also argues that the pretrial order does not mention witnesses.
As an initial matter, it is well-settled that in order for this court to
review evidence deemed inadmissible by the trial court, the party must comply with
La. C.C.P. art. 1636 to preserve the evidence. McMillion v. E. Jefferson Gen. Hosp.,
15-578 (La. App. 5 Cir. 5/26/16), 193 So.3d 448, 451-52, writ denied, 16-1192 (La.
10/10/16), 207 So.3d 405; Tatum v. United Parcel Service, Inc., 10-1053 (La. App.
5 Cir. 11/15/11); 79 So.3d 1094, 1104. Any error may not be predicated upon a
ruling that excludes evidence, unless a substantial right of a party is affected and the
substance of the evidence was made known to the court by counsel. Id. at 1105. In
22-CA-392 3 those instances, it is incumbent upon the party who contends the evidence was
improperly excluded to make a proffer; and if the party fails to do so, that party
cannot contend such exclusion was erroneous. Rogers v. Wackenhut Servs., Inc.,
05-459 (La. App. 5 Cir. 1/17/06), 921 So.2d 1076, 1078. Without a proffer, an
appellate court cannot ascertain the nature of the excluded evidence. Id.
The record reflects that defendant did not proffer the excluded testimony, and
there is nothing in the record to ascertain the substance of Carolina’s testimony.
Consequently, this court has no way of determining whether or how Carolina’s
testimony would have affected the outcome of this matter. We therefore cannot
determine whether the exclusion of this testimony affected a substantial right of
defendant.
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ANA ABIGAIL GONOGORA NO. 22-CA-392
VERSUS FIFTH CIRCUIT
TAQUERIA LA CONQUISTADORA COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7, STATE OF LOUISIANA NO. 20-1125 HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING
May 03, 2023
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst
AFFIRMED SJW SMC MEJ COUNSEL FOR PLAINTIFF/APPELLEE, ANA ABIGAIL GONOGORA Cesar R. Burgos Robert J. Daigre Gabriel O. Mondino George M. McGregor Leila M. Bonilla William R. Penton, III.
COUNSEL FOR DEFENDANT/APPELLANT, TAQUERIA LA CONQUISTADORA Michael H. Idoyaga WINDHORST, J.
In this matter, defendant/appellant, Taqueria La Conquistadora (“Taqueria”
or “defendant”), appeals the May 16, 2022 workers’ compensation court’s judgment
ordering Taqueria to pay plaintiff/appellee, Ana Abigail Gongora, temporary total
disability benefits, supplemental earnings benefits, past and future medical expenses,
penalties, and attorney’s fees. Upon review, we affirm the judgment of the workers’
compensation court.
FACTS and PROCEDURAL HISTORY
On February 14, 2020, Ms. Gongora filed a disputed claim for compensation
against Taqueria for injuries resulting from a slip and fall that occurred while
working at Taqueria on December 9, 2019. She claimed she injured her head, neck,
right shoulder, and back. In the disputed claim form, she indicated that no medical
treatment had been authorized, and that no wage benefits had been paid. She also
stated that Carolina, a co-worker, witnessed the accident.
Defendant answered the disputed claim form, denying that Ms. Gongora
injured herself while working. Defendant asserted that Ms. Gongora worked for
Taqueria for one day, and that the owner had no recollection or record of her
suffering an injury.
The workers’ compensation court issued a scheduling order on December 12,
2020, setting trial for March 15, 2021. This trial date was eventually continued, and
trial took place on March 10, 2022. The scheduling order stated that the discovery
deadline was 30 days prior to trial, and that trial exhibits and witness lists shall be
filed on the day of trial.
On January 10, 2022, Ms. Gongora filed a motion to strike defenses against
defendant for failing to participate in discovery. Therein, Ms. Gongora sought to
strike all of defendant’s evidence that Ms. Gongora was not working at the time she
was injured. Ms. Gongora asserted that she had served defendant with a subpoena
22-CA-392 1 duces tecum for documents, along with her notice of deposition. At the deposition,
defendant failed to produce any documents or a verification for its discovery
responses, which Ms. Gongora had previously requested. In the motion, Ms.
Gongora asserted that Taqueria’s owner, Ms. Carmen Diaz, had represented at her
deposition that defendant would produce the documents, as well as the verification
for the discovery responses.
Ms. Gongora also stated in the motion that defendant had refused to
participate in court-scheduled mediation, and had only retained counsel on the eve
of the hearing to confirm a default, which was based on defendant’s failure to
respond to the disputed claim form. In support of her contention that defendant was
uncooperative, Ms. Gongora also pointed out that defendant had previously
requested a continuance of the July 21, 2021 trial date due to Taqueria’s owner being
out-of-town attending to a medical issue for her daughter, but never produced any
evidence supporting this request.
In the motion, Ms. Gongora further argued that defendant was only interested
in delaying the progress of her claim and asked the court to strike all of defendant’s
defenses. Alternatively, she asked the court to issue an order compelling defendant
to produce the requested documents.
After a hearing, by judgment dated March 4, 2022, the workers’ compensation
court denied Ms. Gongora’s motion to strike in part and granted the motion in part,
ordering defendant to produce several requested documents. The court also awarded
Ms. Gongora sanctions and attorney fees. The order stated that, “Failure to comply
with the above Orders may result in further sanctions imposed by the Court and
reconsideration of Claimant’s Motion to Strike.” Defendant did not produce the
requested documents as ordered.
On March 10, 2022, the day of trial, Ms. Gongora orally objected to
defendant’s newly-announced witness, Carolina Diaz, asserting that defendant
22-CA-392 2 informed her on March 8, 2022, two days before trial, that Carolina Diaz would be
a witness. The workers’ compensation court granted the oral motion to strike
Carolina as a witness based on defendant’s untimely notice two days before trial that
she would be a witness.
At trial, the Court heard live testimony from Ms. Gongora and Ms. Diaz,
Taqueria’s owner. Based on the testimony and evidence presented, the workers’
compensation court found that Ms. Gongora had established that an injury occurred
in the course and scope of her employment and awarded benefits, penalties, and
attorney’s fees.
LAW and ANALYSIS
In its only assignment of error, defendant asserts that the workers’
compensation court erred in striking Carolina Diaz as a witness for the defense of
this claim. Defendant contends that the workers’ compensation court erroneously
found its notice of this witness untimely. Defendant argues that Carolina was well
known to Ms. Gongora for approximately three years before the trial, and that her
counsel had the opportunity to depose her or otherwise question her. Defendant
relies on the fact that on her disputed claim form, Ms. Gongora listed Carolina as a
witness, specifically “Carolina, who was mopping, witnessed the accident.”
Defendant also argues that the pretrial order does not mention witnesses.
As an initial matter, it is well-settled that in order for this court to
review evidence deemed inadmissible by the trial court, the party must comply with
La. C.C.P. art. 1636 to preserve the evidence. McMillion v. E. Jefferson Gen. Hosp.,
15-578 (La. App. 5 Cir. 5/26/16), 193 So.3d 448, 451-52, writ denied, 16-1192 (La.
10/10/16), 207 So.3d 405; Tatum v. United Parcel Service, Inc., 10-1053 (La. App.
5 Cir. 11/15/11); 79 So.3d 1094, 1104. Any error may not be predicated upon a
ruling that excludes evidence, unless a substantial right of a party is affected and the
substance of the evidence was made known to the court by counsel. Id. at 1105. In
22-CA-392 3 those instances, it is incumbent upon the party who contends the evidence was
improperly excluded to make a proffer; and if the party fails to do so, that party
cannot contend such exclusion was erroneous. Rogers v. Wackenhut Servs., Inc.,
05-459 (La. App. 5 Cir. 1/17/06), 921 So.2d 1076, 1078. Without a proffer, an
appellate court cannot ascertain the nature of the excluded evidence. Id.
The record reflects that defendant did not proffer the excluded testimony, and
there is nothing in the record to ascertain the substance of Carolina’s testimony.
Consequently, this court has no way of determining whether or how Carolina’s
testimony would have affected the outcome of this matter. We therefore cannot
determine whether the exclusion of this testimony affected a substantial right of
defendant. Because defendant did not properly preserve this issue for appeal, this
assignment of error lacks merit.
In addition, a trial court has much discretion in imposing sanctions for a
party’s failure to comply with scheduling orders, and its ruling will not be reversed
absent an abuse of that discretion. Campos v. Unlimited Master Contractors, LLC,
18-435 (La. App. 5 Cir. 1/30/19), 265 So.3d 968, 972, writ denied, 19-427 (La.
5/6/19), 270 So.3d 576. In reviewing an imposed sanction, each case must be
decided upon its own facts and circumstances. Id. Whether or not witnesses are
permitted to testify is within the trial judge’s discretion. Only when this discretion
is abused is such a decision reversible on appeal. Reed v. Columbia/HCA Info. Sys.,
Inc., 00-1884 (La. App. 5 Cir. 4/11/01), 786 So.2d 142, 147, writ denied, 01-1384
(La. 6/22/01), 794 So.2d 796.
The scheduling order provided that the discovery deadline was 30 days prior
to trial. During discovery, defendant did not inform Ms. Gongora that Carolina
would be a witness. Defendant also did not provide the court with any reason or
explanation for failing to timely inform Ms. Gongora that Carolina would be a
witness.
22-CA-392 4 In addition, the record indicates that defendant failed to cooperate with
discovery throughout the case. Based on defendant’s failure to participate in
discovery, Ms. Gongora filed a motion to strike defendant’s evidence that Ms.
Gongora was not working at the time she was injured. Despite the workers’
compensation court’s ruling ordering defendant to produce documents requested
during discovery, defendant failed to comply.
Based on the facts of this case, we find no abuse of the workers’ compensation
court’s discretion in striking Caroline Diaz as a witness for defendant.
DECREE
For the reasons stated above, we affirm the workers’ compensation court’s
judgment.
AFFIRMED
22-CA-392 5 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MAY 3, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-392 E-NOTIFIED OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK) HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE) GABRIEL O. MONDINO (APPELLEE) GEORGE M. MCGREGOR (APPELLEE) ROBERT J. DAIGRE (APPELLEE) WILLIAM R. PENTON, III (APPELLEE) MICHAEL H. IDOYAGA (APPELLANT)
MAILED LEILA M. BONILLA (APPELLEE) CESAR R. BURGOS (APPELLEE) ATTORNEY AT LAW ATTORNEY AT LAW 3535 CANAL STREET 3535 CANAL STREET NEW ORLEANS, LA 70119 SUITE 200 NEW ORLEANS, LA 70119