Ardoin v. Bourgeois

916 So. 2d 329, 2005 WL 2863658
CourtLouisiana Court of Appeal
DecidedNovember 2, 2005
Docket2004-1663
StatusPublished
Cited by15 cases

This text of 916 So. 2d 329 (Ardoin v. Bourgeois) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ardoin v. Bourgeois, 916 So. 2d 329, 2005 WL 2863658 (La. Ct. App. 2005).

Opinion

916 So.2d 329 (2005)

Chastity ARDOIN
v.
Mitchell BOURGEOIS.

No. 2004-1663.

Court of Appeal of Louisiana, Third Circuit.

November 2, 2005.

*331 Jack W. Caskey, Lake Charles, Louisiana, for Plaintiff/Appellee, Chastity Ardoin, Gabrielle Nicole Richard, Raven Brooks Bourgeois.

Lee H. des Bordes, Jr., Baton Rouge, Louisiana, for Defendant/Appellant, Mitchell Bourgeois.

Mitchell Bourgeois, Port Allen, Louisiana, pro se.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.

SULLIVAN, Judge.

Mitchell Bourgeois appeals the trial court's denial of his motion to continue the trial of this matter and its awards of $325,000.00 in general damages and $12,631.31 in past and future medical expenses in favor of Chastity Ardoin. For the following reasons, we amend and affirm as amended.

Facts

Mitchell Bourgeois lived with Chastity Ardoin for approximately ten years. They have one child. Their relationship was stormy and sometimes violent. Over the course of three days in early May 2001, Mr. Bourgeois severely physically abused and mentally terrorized Ms. Ardoin. He was arrested and charged with aggravated battery; he pled guilty to the charge and was sentenced to five years in prison.

On May 2, 2002, Ms. Ardoin filed a civil suit against Mr. Bourgeois; he answered the petition in August 2002. There was no further action in the matter until July 24, 2003 when Ms. Ardoin's attorney withdrew as counsel of record. Mr. Bourgeois' attorney did the same on November 14, 2003. In March 2004, Ms. Ardoin filed a motion to proceed in forma pauperis and a motion to withdraw her demand for trial by jury. The matter was set for trial on August 2, 2004. On Wednesday, July 29, 2004, Mr. Bourgeois filed a motion to proceed in forma pauperis and a motion to continue the trial. Prior to the start of the trial on August 2, the trial court denied the motion for continuance and proceeded with the trial. At the conclusion of the trial, the trial court rendered judgment in favor of Ms. Ardoin awarding her $100,000.00 for assault, including kidnaping, binding, beating, cutting and burning; $200,000.00 for scarring and disability and all damages associated therewith; $25,000.00 for mental *332 pain, anguish, grief, and fear; and $12,631.31 for past and future medicals. The trial court signed a judgment on August 4, 2004.

On August 16, 2004, Mr. Bourgeois filed a notice of intent to seek writs and another motion to proceed in forma pauperis. He filed a motion for appeal on November 15, 2004, and a notice of appeal on November 22, 2004.[1] He assigns two errors: the trial court's denial of his motion for continuance and the damage awards.

Discussion

Motion for Continuance

Mr. Bourgeois acknowledged in his motion for continuance that he received notice of the trial date on May 15, 2004. He listed his incarceration and his inability to afford an attorney as grounds for the continuance. On appeal, he urges that the trial court abused its discretion when it denied his request for a continuance because he was not allowed "a fair opportunity to defend himself or at least prove if Ms. Ardoin's damage claims should be reduced by her comparative fault" and identifies four reasons why a continuance should have been granted: 1) no discovery had been taken; 2) Ms. Ardoin had withdrawn her request for a jury trial, and he was not knowledgeable enough to know he could request a jury; 3) the trial judge had also presided over Mr. Bourgeois' criminal proceeding and knew Ms. Ardoin's version of the events which are the basis of this suit, so he was denied a trial before a "fair and impartial tribunal"; and 4) the trial court's denial of the continuance denied Mr. Bourgeois a chance to prove that Ms. Ardoin contributed to her own injuries.

"[A] continuance may be granted in any case if there is good ground therefor." La.Code Civ.P. art. 1601. The trial court has great discretion in granting or denying a motion for a continuance, and denial of a continuance will not be disturbed on appeal unless the trial court is shown to have abused its discretion. Jackson v. Royal Ins. Co., 97-723 (La.App. 3 Cir.12/17/97), 704 So.2d 424. Whether a trial court should grant or deny a continuance depends on the particular facts of each case. Some factors to consider are diligence, good faith, and reasonable grounds. Demopulos v. Jackson, 33,560 (La.App. 2 Cir.6/21/00), 765 So.2d 480. Fairness to both parties and the need for orderly administration of justice are additional considerations in deciding whether to grant or deny a continuance. Gilcrease v. Bacarisse, 26,318 (La.App. 2 Cir.12/7/94), 647 So.2d 1219, writ denied, 95-421 (La.3/30/95), 651 So.2d 845.

We recognize that Mr. Bourgeois' incarceration presented a problem with respect to his defense of this matter. However, he was not diligent in seeking relief. He waited more than sixty days after he received notice of the trial date to file his motion for continuance and then filed it only three business days before the trial.

It is not unusual for individuals who are incarcerated to be parties to civil litigation, either as plaintiff or defendant. A writ of habeas corpus ad testificandum is the means for such individuals to be present in court. See State v. Property Located at No. 70 Oakland Street, 98-929 (La.App. 5 Cir.1/26/99), 727 So.2d 1240, writ denied, 99-1095 (La.9/3/99), 747 So.2d 540. Prisoners who are parties to litigation *333 utilize this mechanism to obtain their presence and the presence of witnesses who are also incarcerated in court. See Smith v. Ieyoub, 01-1517 (La.App. 3 Cir.3/6/02), 809 So.2d 1256; Jones v. Phelps, 95-607 (La.App. 1 Cir.11/9/95), 665 So.2d 30, writ denied, 95-2907 (La.2/2/96), 666 So.2d 1104; Richardson v. Reeves, 600 So.2d 138 (La.App. 2 Cir.1992). Mr. Bourgeois had time to obtain this information and file such a writ before the trial date. Additionally, Mr. Bourgeois did not set forth in his motion for continuance that he attempted to obtain new representation after his attorney of record withdrew.

Mr. Bourgeois also cited the trial court's failure to appoint an attorney to represent him as a basis for a continuance. As a general rule, defendants in civil litigation are not entitled to appointed counsel to represent them. Lay v. McElven, 96-1325 (La.App. 1 Cir.3/27/97), 691 So.2d 311, writ denied, 97-2398 (La.2/6/98), 709 So.2d 730. However, it has been held that constitutional due process requires the appointment of counsel to indigents in civil matters when fundamental constitutional rights are involved. Id. The court in Lay determined that an incarcerated, indigent plaintiff's suit to recover damages for a violation of his civil rights was not a fundamental constitutional right which would entitle him to appointed counsel. In Ford Motor Credit Co. v. George, 36,893 (La.App. 2 Cir.3/5/03), 839 So.2d 1042, the court determined that a suit on a retail installment contract does not involve issues of fundamental constitutional rights and that an indigent defendant in such a suit is not entitled to appointed counsel.

We conclude that Mr. Bourgeois was not entitled to appointed counsel in this matter; therefore, his claim to entitlement of appointed counsel was not a valid ground for a continuance.

In his appellate brief, Mr.

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916 So. 2d 329, 2005 WL 2863658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ardoin-v-bourgeois-lactapp-2005.