STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
03-155
ARN SMITH AND DEIDRE BELL SMITH
VERSUS
CITY OF LAKE CHARLES POLICE DEPARTMENT, ET AL.
********** APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 00-C-3616-A HONORABLE JAMES T. GENOVESE, DISTRICT JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Glenn B. Gremillion, and Elizabeth A. Pickett, Judges.
WRIT GRANTED IN PART AND MADE PEREMPTORY; DENIED IN PART AND MATTER TRANSFERRED.
John Kevin Stockstill 600 Jefferson, Suite 1000-79 Lafayette, LA 70501 (337) 262-0203 Counsel for Plaintiffs/Applicants Arn Smith Deidre Bell Smith Jerry Joseph Falgoust Dauzat, Falgoust, Caviness & Bienvenu, L.L.P. P. O. Box 1450 Opelousas, LA 70571 (337) 942-5811 Counsel for Defendants/Respondents City of Opelousas Police Department Sgt. Donald Thompson
Christopher E. John Asst. City Attorney P.O. Box 900 Lake Charles, LA 70602-0900 (337) 491-1523 Counsel for Defendants/Respondents City of Lake Charles Detective Billy Toten
Larry Allen Wallace, Jr. 345 Doucet Road, Ste 104-A Lafayette, LA 70503 (337) 983-0170 Counsel for Defendants/Respondents Hartford Insurance Company City of Eunice Police Department Sgt. Varden Guillory, Sr. Sgt. Richard Daigle GREMILLION, Judge.
The plaintiffs, Arn and Deidre Smith, seek supervisory writs on the trial
court’s denial of their request for a jury trial against the City of Eunice’s liability
insurer, Hartford Insurance Company, and its grant of a declinatory exception of
improper venue in favor of the defendants, the City of Lake Charles and Detective
Billy Toten. For the following reasons, the writ is granted in part and made
peremptory and denied in part and the Smiths’ claims against Lake Charles and Toten
is ordered transferred to the Fourteenth Judicial District Court.
FACTS
This matter stems from investigations arising from several scams to
defraud elderly women of money in the towns of Southhaven, Mississippi, and Lake
Charles, Eunice, and Opelousas, Louisiana. As a result of the investigations
conducted by the various police departments, Arn Smith (Smith) was arrested by the
Eunice and Opelousas Police Departments and was detained by the Southhaven Police
Department. Smith and his wife then filed suit in St. Landry Parish against various
defendants alleging false arrest, invasion of privacy, gross negligence, and /or
outrageous, reckless, willful, or flagrant misconduct. The defendants named in the
petition include those at issue here: the City of Eunice Police Department and
Sergeants Varden Guillory, Sr. and Donald Thompson; and the City of Lake Charles
Police Department and Detective Billy Toten.1 In their petition, the Smiths requested
that the matter be tried by a jury. In an amending petition, the Smiths added as
defendant Eunice’s liability insurer, Hartford.
1 The remaining defendants are: the City of Southhaven Police Department; and the City of Opelousas Police Department and Sergeant Richard Daigle and Detective Don Hammons.
1 At issue in this writ application are two rulings by the trial court. In the
first, the trial court denied the Smiths’ request for a trial by jury against Hartford.
Next, the trial court granted Lake Charles and Toten’s declinatory exception of
improper venue and held that all claims against them should be filed in Calcasieu
Parish. The trial court granted the Smiths thirty days in which to re-file their lawsuit
against Lake Charles and Toten in the Fourteenth Judicial District. It is from these
two rulings that the Smiths sought supervisory writs from this court.
RIGHT TO JURY TRIAL
In their first assignment of error, the Smiths argue that the trial court
erred by denying them their right to a jury trial against Hartford. We agree.
Louisiana Revised Statutes 13:5105(A) provides that, “No suit against
a political subdivision of the state shall be tried by jury.” In this instance, the Smiths
are requesting a trial by jury against Hartford, Eunice’s liability insurer, not against
Eunice itself. In Jones v. City of Kenner, 338 So.2d 606 (La.1976), the supreme court
held that the prohibition of a jury trial against a political subdivision of the state did
not extend to the political subdivision’s liability insurer. In so holding, the supreme
court stated: “Therefore, as in Champagne [v. American Southern Insurance Co., 295
So.2d 437 (La.1974)], we hold that the plaintiffs cannot be deprived of their jury trial
against such non-governmental defendant because a governmental defendant is joined
as a party, despite any identity or substantial similarity of the issues against both.” Id.
at 607. That reasoning was recently applied with approval in Naquin v. Titan
Indemnity Co., 00-1585 (La. 2/21/01), 779 So.2d 704, in which the supreme court held
that the ninety day service rule provided to a governmental entity by La.R.S.
2 13:5107(D) did not extend to the governmental entity’s insurer, a non-governmental
entity. Thus, we find that the trial court erred in denying the Smiths their right to a
jury trial against Hartford, even though it is the liability insurer of a political
subdivision. The Smiths’ writ on this issue is granted and made peremptory.
IMPROPER VENUE
In their second assignment of error, the Smiths argue that the trial court
erred in finding that Calcasieu Parish was the proper venue for their claims against
Lake Charles and Toten. However, we agree with the trial court’s finding and affirm
its ruling.
Louisiana Revised Statute 13:5104(B) provides:
All suits filed against a political subdivision of the state or against an officer or employee of a political subdivision for conduct arising our of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises.
With regard to Lake Charles and Toten, the Smiths alleged in their
petition that:
Upon information and belief, between the time period February 17, 1999 to October 19, 1999, the Defendants performed and/or participated in an investigation of Plaintiff, ARN SMITH. Plaintiff was investigated regarding his alleged role in numerous thefts and/or attempted thefts and/or schemes to defraud involving elderly women in Southhaven, Mississippi, Lake Charles, Louisiana, Eunice, Louisiana and Opelousas, Louisiana.
In their amending petition, they alleged, “The CITY OF LAKE CHARLES POLICE
DEPARTMENT’S AND DETECTIVE BILL TOTEN’s conduct enumerated in
Paragraph VI and VII of Plaintiffs’ Petition For Damages and the investigations
performed and/or participated in by them occurred in Calcasieu Parish.” Paragraphs
3 “VI” and “VII” provide:
VI.
During the course of the investigations by Defendants, Defendants knew, or in the exercise of minimal diligence should have known, that the charges against Plaintiff were not well founded.
VII.
In addition, the Defendants failed to interview witnesses which would have eliminated Plaintiff as a suspect, failed to investigate the possibility that the Plaintiff was misidentified and/or obtained identification evidence that was so suggestive and improperly obtained as to render it highly unreliable.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
03-155
ARN SMITH AND DEIDRE BELL SMITH
VERSUS
CITY OF LAKE CHARLES POLICE DEPARTMENT, ET AL.
********** APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 00-C-3616-A HONORABLE JAMES T. GENOVESE, DISTRICT JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Glenn B. Gremillion, and Elizabeth A. Pickett, Judges.
WRIT GRANTED IN PART AND MADE PEREMPTORY; DENIED IN PART AND MATTER TRANSFERRED.
John Kevin Stockstill 600 Jefferson, Suite 1000-79 Lafayette, LA 70501 (337) 262-0203 Counsel for Plaintiffs/Applicants Arn Smith Deidre Bell Smith Jerry Joseph Falgoust Dauzat, Falgoust, Caviness & Bienvenu, L.L.P. P. O. Box 1450 Opelousas, LA 70571 (337) 942-5811 Counsel for Defendants/Respondents City of Opelousas Police Department Sgt. Donald Thompson
Christopher E. John Asst. City Attorney P.O. Box 900 Lake Charles, LA 70602-0900 (337) 491-1523 Counsel for Defendants/Respondents City of Lake Charles Detective Billy Toten
Larry Allen Wallace, Jr. 345 Doucet Road, Ste 104-A Lafayette, LA 70503 (337) 983-0170 Counsel for Defendants/Respondents Hartford Insurance Company City of Eunice Police Department Sgt. Varden Guillory, Sr. Sgt. Richard Daigle GREMILLION, Judge.
The plaintiffs, Arn and Deidre Smith, seek supervisory writs on the trial
court’s denial of their request for a jury trial against the City of Eunice’s liability
insurer, Hartford Insurance Company, and its grant of a declinatory exception of
improper venue in favor of the defendants, the City of Lake Charles and Detective
Billy Toten. For the following reasons, the writ is granted in part and made
peremptory and denied in part and the Smiths’ claims against Lake Charles and Toten
is ordered transferred to the Fourteenth Judicial District Court.
FACTS
This matter stems from investigations arising from several scams to
defraud elderly women of money in the towns of Southhaven, Mississippi, and Lake
Charles, Eunice, and Opelousas, Louisiana. As a result of the investigations
conducted by the various police departments, Arn Smith (Smith) was arrested by the
Eunice and Opelousas Police Departments and was detained by the Southhaven Police
Department. Smith and his wife then filed suit in St. Landry Parish against various
defendants alleging false arrest, invasion of privacy, gross negligence, and /or
outrageous, reckless, willful, or flagrant misconduct. The defendants named in the
petition include those at issue here: the City of Eunice Police Department and
Sergeants Varden Guillory, Sr. and Donald Thompson; and the City of Lake Charles
Police Department and Detective Billy Toten.1 In their petition, the Smiths requested
that the matter be tried by a jury. In an amending petition, the Smiths added as
defendant Eunice’s liability insurer, Hartford.
1 The remaining defendants are: the City of Southhaven Police Department; and the City of Opelousas Police Department and Sergeant Richard Daigle and Detective Don Hammons.
1 At issue in this writ application are two rulings by the trial court. In the
first, the trial court denied the Smiths’ request for a trial by jury against Hartford.
Next, the trial court granted Lake Charles and Toten’s declinatory exception of
improper venue and held that all claims against them should be filed in Calcasieu
Parish. The trial court granted the Smiths thirty days in which to re-file their lawsuit
against Lake Charles and Toten in the Fourteenth Judicial District. It is from these
two rulings that the Smiths sought supervisory writs from this court.
RIGHT TO JURY TRIAL
In their first assignment of error, the Smiths argue that the trial court
erred by denying them their right to a jury trial against Hartford. We agree.
Louisiana Revised Statutes 13:5105(A) provides that, “No suit against
a political subdivision of the state shall be tried by jury.” In this instance, the Smiths
are requesting a trial by jury against Hartford, Eunice’s liability insurer, not against
Eunice itself. In Jones v. City of Kenner, 338 So.2d 606 (La.1976), the supreme court
held that the prohibition of a jury trial against a political subdivision of the state did
not extend to the political subdivision’s liability insurer. In so holding, the supreme
court stated: “Therefore, as in Champagne [v. American Southern Insurance Co., 295
So.2d 437 (La.1974)], we hold that the plaintiffs cannot be deprived of their jury trial
against such non-governmental defendant because a governmental defendant is joined
as a party, despite any identity or substantial similarity of the issues against both.” Id.
at 607. That reasoning was recently applied with approval in Naquin v. Titan
Indemnity Co., 00-1585 (La. 2/21/01), 779 So.2d 704, in which the supreme court held
that the ninety day service rule provided to a governmental entity by La.R.S.
2 13:5107(D) did not extend to the governmental entity’s insurer, a non-governmental
entity. Thus, we find that the trial court erred in denying the Smiths their right to a
jury trial against Hartford, even though it is the liability insurer of a political
subdivision. The Smiths’ writ on this issue is granted and made peremptory.
IMPROPER VENUE
In their second assignment of error, the Smiths argue that the trial court
erred in finding that Calcasieu Parish was the proper venue for their claims against
Lake Charles and Toten. However, we agree with the trial court’s finding and affirm
its ruling.
Louisiana Revised Statute 13:5104(B) provides:
All suits filed against a political subdivision of the state or against an officer or employee of a political subdivision for conduct arising our of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises.
With regard to Lake Charles and Toten, the Smiths alleged in their
petition that:
Upon information and belief, between the time period February 17, 1999 to October 19, 1999, the Defendants performed and/or participated in an investigation of Plaintiff, ARN SMITH. Plaintiff was investigated regarding his alleged role in numerous thefts and/or attempted thefts and/or schemes to defraud involving elderly women in Southhaven, Mississippi, Lake Charles, Louisiana, Eunice, Louisiana and Opelousas, Louisiana.
In their amending petition, they alleged, “The CITY OF LAKE CHARLES POLICE
DEPARTMENT’S AND DETECTIVE BILL TOTEN’s conduct enumerated in
Paragraph VI and VII of Plaintiffs’ Petition For Damages and the investigations
performed and/or participated in by them occurred in Calcasieu Parish.” Paragraphs
3 “VI” and “VII” provide:
VI.
During the course of the investigations by Defendants, Defendants knew, or in the exercise of minimal diligence should have known, that the charges against Plaintiff were not well founded.
VII.
In addition, the Defendants failed to interview witnesses which would have eliminated Plaintiff as a suspect, failed to investigate the possibility that the Plaintiff was misidentified and/or obtained identification evidence that was so suggestive and improperly obtained as to render it highly unreliable.
The doctrine of ancillary jurisdiction was adopted, if not wholeheartedly,
by the supreme court in Underwood v. Lane Memorial Hospital, 97-1997 (La. 7/8/98),
714 So.2d 715. There, the court explained: “Ancillary venue applies when separate
claims involving common or identical questions of fact share no common venue. The
concept of ancillary venue allows such claims to be tried together for reasons of
judicial economy and efficiency, even though venue is not proper technically for one
claim or one part.” Id. at 719. The test in such instances is whether the incidents
giving rise to the claims against the political subdivisions arose out of the same
transaction or occurrence. Id.
In this instance, although the Smiths are asserting the same causes of
action against the various defendants, we find that the claims are based on different
factual circumstances, i.e., the individual investigations conducted by each police
department leading up to their arrest/detention of Smith. Although Lake Charles did
not arrest or detain Smith as a result of its investigation, the Smiths admitted in their
petition that the conduct complained of by them occurred in Calcasieu Parish, while
4 all other complained of conduct occurred in St. Landry Parish. Since the Smiths’
claim against Lake Charles and Toten did not arise from the same transaction or
occurrence as the other claims, we find that venue against them would be improper in
St. Landry Parish, since all of the parties associated with this claim are located in Lake
Charles, even the Smiths. Accordingly, we find that the trial court correctly granted
Lake Charles and Toten’s declinatory exception of improper venue and ordered that
any action against them should be brought in the Fourteenth Judicial District in
Calcasieu Parish. The Smiths’ claim against Lake Charles and Toten is ordered
transferred to the Fourteenth Judicial District Court.
CONCLUSION
For the foregoing reasons, the writ is granted in part and made
peremptory, finding that the trial court improperly denied the Smiths their right to a
jury trial against Hartford Insurance Company. However, the writ is denied on the
issue of whether the trial court correctly granted the declinatory exception of improper
venue in favor of the City of Lake Charles Police Department and Detective Billy
Toten. The Smiths’ claim against these defendants is ordered transferred to the
Fourteenth Judicial District Court. The costs of this writ are assessed half to the
Smiths and half to the City of Eunice in the amount of $754.50 each.
WRIT GRANTED IN PART AND MADE PEREMPTORY;
DENIED IN PART AND MATTER TRANSFERRED.