NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 23-301
BRADLEY DAY & TRACEY DAY
VERSUS
ELVIS DEAN THOMPSON, ET AL.
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2017-4574 HONORABLE DERRICK D. KEE, DISTRICT JUDGE
D. KENT SAVOIE
JUDGE
Court composed of D. Kent Savoie, Van H. Kyzar, and Guy E. Bradberry, Judges.
SECOND MOTION TO SUPPLEMENT APPEAL RECORD GRANTED. Randall Alan Smith J. Geoffrey Ormsby Dylan T. Leach Smith & Fawer, LLC 201 St. Charles Avenue, Suite 3702 New Orleans, LA 70170 (504) 525-2200 COUNSEL FOR DEFENDANT/APPELLANT: Prime Insurance Company
Martin Edward Golden Keogh, Cox & Wilson, Ltd. Post Office Box 1151 Baton Rouge, LA 70821 (225) 383-3796 COUNSEL FOR INTERVENOR/APPELLEE: Rescare, Inc.
John Craig Jones Attorney at Law 131 Highway 165 South Oakdale, LA 71463 (318) 335-1333 COUNSEL FOR PLAINTIFFS/APPELLEES: Bradley Day Tracey Day
Jennifer M. Ardoin Katelyn E. Bayhi Frank X. Neuner, Jr, NeunerPate 1001 W. Pinhook Rd., Ste. 200 Lafayette, LA 70503 (337) 237-7000 COUNSEL FOR DEFENDANTS/APPELLANTS: Terry Graham Trucking, Inc. Elvis Dean Thompson SAVOIE, Judge.
Defendants-Appellants, Terry Graham Trucking, Inc. and Elvis Thompson,
filed a Second Motion to Supplement the Record on Appeal, seeking to supplement
the record with the complete trial transcript, including but not limited to the
transcript from the oral motions made, argued, and decided on January 3, 2022,
and specifically Plaintiffs’-Appellees’ oral motion to excuse Plaintiff-Appellee
Tracey Day for the entire length of the trial. Plaintiffs-Appellees, Bradley Day and
Tracey Day, filed an opposition to Defendants’ motion, asserting that the
transcripts sought by Defendants are not material to this appeal. For the reasons
stated herein, we grant Defendants’ motion to supplement the appeal record.
The instant appeal was lodged with this court on May 15, 2023. After
reviewing the record, Defendants filed an Ex Parte Motion to Supplement Record
on Appeal. The motion was granted and the record was supplemented on August
23, 2023. Upon reviewing the supplemental record, it became evident to
Defendants that a number of oral motions were made, argued, and decided on the
morning of trial, January 3, 2022, and had not been transcribed and/or included in
the record. Defendants assert that the transcript on these oral motions, and
specifically, on Plaintiffs’ motion to excuse Plaintiff Tracey Day for the entire
length of trial, is critical to issues to be raised by Defendants and must be cited in
their brief. Without the transcript of this oral motion, objections, or the trial
court’s oral reasons, Defendants maintain they will not be able to properly brief the
issue. Defendants request that this court issue an order directing the Fourteenth
Judicial District Court Clerk of Court to supplement the appellate record with the
complete trial transcript, including but not limited to the transcript from the oral
motions made, argued, and decided on January 3, 2022, and specifically Plaintiffs’
oral motion to excuse Plaintiff Tracey Day for the entire length of trial. In opposition to the motion to supplement, Plaintiffs argue that Defendants’
second motion to supplement the record should be denied as untimely and
unnecessary. Plaintiffs maintain that the transcripts sought by Defendants are not
material to this appeal as provided in La.Code Civ.P. art. 2132, and involve a
minor, discretionary decision by the trial judge that is adequately found in the
record. Article 2132 authorizes the correction of a record on appeal that omits a
material part of the trial record.
Next, Plaintiffs argue that a motion to supplement a transcript that “does not
state the nature of the trial judge’s error . . . standing alone, is insufficient to
warrant this court bringing about further delays by remanding the case for the
[supplemental] transcription of the proceedings.” Jackson v. Tri-State Elevator
Co., 398 So.2d 199, 200-201 (La.App. 3 Cir.), writ denied, 400 So.2d 905
(La.1981). Plaintiffs assert that Defendants’ motion to supplement does not show
how the addition of the record of a transcript of oral arguments of counsel
regarding whether to excuse Tracey Day from attending a week-long trial will
show the “nature of the trial judge’s error.” Plaintiffs complain that Defendants’
motion does not articulate error at all. Instead, Defendants seek to stay this case a
second time to supplement the record with a transcript of an oral argument not
made in front of the jury that contains no evidence. Plaintiffs contend that
argument by counsel, “is not evidence and cannot be considered as proof of fact
(citations omitted).” Ortega v. Cantu Servs., Inc., 17-1123, p. 4 (La.App. 3 Cir.
5/2/18), 246 So.3d 827, 830. Plaintiffs add that Defendants do not attempt to
articulate how the trial judge’s decision to excuse Tracey Day could have possibly
been an abuse of discretion. Plaintiffs also point out that the minutes from the first
morning of trial reflect that Plaintiffs’ counsel moved the court to excuse Tracey
2 Day from attending trial, defense counsel objected, and the trial judge granted the
motion; thus, the essential facts of the ruling are found in the record.
Lastly, Plaintiffs argue that Defendants previously attempted to designate a
limited record on appeal and did not designate the transcript of the discussion of
counsel to excuse Tracey Day on January 3, 2022, as a necessary part of the record.
Plaintiffs urge that Defendants should not be allowed to delay this appeal a second
time because they changed their minds. Plaintiffs point out that Appellant-
Defendant Prime Insurance Company filed a motion and order to designate the
record for appeal and did not designate the transcript of the January 3, 2022
discussion of counsel and motion to excuse Tracey Day as part of the appeal
record.1 Defendants then filed their own motion to designate the record, seeking to
limit the appeal record to “only those documents previously identified by Prime
Insurance Company’s timely motion to designate.” Plaintiffs note that Defendants
designated two additional documents but did not designate the transcript of the
argument of counsel on the morning of January 3, 2022.
Further, Plaintiffs complain that when the record was lodged with this court
on May 15, 2023, and it was apparent that the transcription of the discussion of
counsel on January 3, 2022, was not in the record, Defendants only specifically
mentioned the need for the voir dire transcript. Plaintiffs maintain that if the
January 3, 2022 argument of counsel was truly important to Defendants’ appeal,
they would have designated it as part of the record last year, and at the very least,
would have specifically requested the transcript after the record was lodged.
Plaintiffs conclude that “Justice delayed is Justice denied.” Hamilton Med.
Grp. V. Ochsner Health Plan, 550 So.2d 290, 292 (La.App. 3 Cir. 1989). Plaintiffs
1 The appeals of Prime Insurance Company, Terry Graham Trucking, and Elvis Dean Thompson were consolidated on September 13, 2022. 3 complain that their appeal has been pending for over one year and that Defendants
have already asked for and obtained a stay of briefing deadline to supplement the
record with the voir dire transcript.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 23-301
BRADLEY DAY & TRACEY DAY
VERSUS
ELVIS DEAN THOMPSON, ET AL.
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2017-4574 HONORABLE DERRICK D. KEE, DISTRICT JUDGE
D. KENT SAVOIE
JUDGE
Court composed of D. Kent Savoie, Van H. Kyzar, and Guy E. Bradberry, Judges.
SECOND MOTION TO SUPPLEMENT APPEAL RECORD GRANTED. Randall Alan Smith J. Geoffrey Ormsby Dylan T. Leach Smith & Fawer, LLC 201 St. Charles Avenue, Suite 3702 New Orleans, LA 70170 (504) 525-2200 COUNSEL FOR DEFENDANT/APPELLANT: Prime Insurance Company
Martin Edward Golden Keogh, Cox & Wilson, Ltd. Post Office Box 1151 Baton Rouge, LA 70821 (225) 383-3796 COUNSEL FOR INTERVENOR/APPELLEE: Rescare, Inc.
John Craig Jones Attorney at Law 131 Highway 165 South Oakdale, LA 71463 (318) 335-1333 COUNSEL FOR PLAINTIFFS/APPELLEES: Bradley Day Tracey Day
Jennifer M. Ardoin Katelyn E. Bayhi Frank X. Neuner, Jr, NeunerPate 1001 W. Pinhook Rd., Ste. 200 Lafayette, LA 70503 (337) 237-7000 COUNSEL FOR DEFENDANTS/APPELLANTS: Terry Graham Trucking, Inc. Elvis Dean Thompson SAVOIE, Judge.
Defendants-Appellants, Terry Graham Trucking, Inc. and Elvis Thompson,
filed a Second Motion to Supplement the Record on Appeal, seeking to supplement
the record with the complete trial transcript, including but not limited to the
transcript from the oral motions made, argued, and decided on January 3, 2022,
and specifically Plaintiffs’-Appellees’ oral motion to excuse Plaintiff-Appellee
Tracey Day for the entire length of the trial. Plaintiffs-Appellees, Bradley Day and
Tracey Day, filed an opposition to Defendants’ motion, asserting that the
transcripts sought by Defendants are not material to this appeal. For the reasons
stated herein, we grant Defendants’ motion to supplement the appeal record.
The instant appeal was lodged with this court on May 15, 2023. After
reviewing the record, Defendants filed an Ex Parte Motion to Supplement Record
on Appeal. The motion was granted and the record was supplemented on August
23, 2023. Upon reviewing the supplemental record, it became evident to
Defendants that a number of oral motions were made, argued, and decided on the
morning of trial, January 3, 2022, and had not been transcribed and/or included in
the record. Defendants assert that the transcript on these oral motions, and
specifically, on Plaintiffs’ motion to excuse Plaintiff Tracey Day for the entire
length of trial, is critical to issues to be raised by Defendants and must be cited in
their brief. Without the transcript of this oral motion, objections, or the trial
court’s oral reasons, Defendants maintain they will not be able to properly brief the
issue. Defendants request that this court issue an order directing the Fourteenth
Judicial District Court Clerk of Court to supplement the appellate record with the
complete trial transcript, including but not limited to the transcript from the oral
motions made, argued, and decided on January 3, 2022, and specifically Plaintiffs’
oral motion to excuse Plaintiff Tracey Day for the entire length of trial. In opposition to the motion to supplement, Plaintiffs argue that Defendants’
second motion to supplement the record should be denied as untimely and
unnecessary. Plaintiffs maintain that the transcripts sought by Defendants are not
material to this appeal as provided in La.Code Civ.P. art. 2132, and involve a
minor, discretionary decision by the trial judge that is adequately found in the
record. Article 2132 authorizes the correction of a record on appeal that omits a
material part of the trial record.
Next, Plaintiffs argue that a motion to supplement a transcript that “does not
state the nature of the trial judge’s error . . . standing alone, is insufficient to
warrant this court bringing about further delays by remanding the case for the
[supplemental] transcription of the proceedings.” Jackson v. Tri-State Elevator
Co., 398 So.2d 199, 200-201 (La.App. 3 Cir.), writ denied, 400 So.2d 905
(La.1981). Plaintiffs assert that Defendants’ motion to supplement does not show
how the addition of the record of a transcript of oral arguments of counsel
regarding whether to excuse Tracey Day from attending a week-long trial will
show the “nature of the trial judge’s error.” Plaintiffs complain that Defendants’
motion does not articulate error at all. Instead, Defendants seek to stay this case a
second time to supplement the record with a transcript of an oral argument not
made in front of the jury that contains no evidence. Plaintiffs contend that
argument by counsel, “is not evidence and cannot be considered as proof of fact
(citations omitted).” Ortega v. Cantu Servs., Inc., 17-1123, p. 4 (La.App. 3 Cir.
5/2/18), 246 So.3d 827, 830. Plaintiffs add that Defendants do not attempt to
articulate how the trial judge’s decision to excuse Tracey Day could have possibly
been an abuse of discretion. Plaintiffs also point out that the minutes from the first
morning of trial reflect that Plaintiffs’ counsel moved the court to excuse Tracey
2 Day from attending trial, defense counsel objected, and the trial judge granted the
motion; thus, the essential facts of the ruling are found in the record.
Lastly, Plaintiffs argue that Defendants previously attempted to designate a
limited record on appeal and did not designate the transcript of the discussion of
counsel to excuse Tracey Day on January 3, 2022, as a necessary part of the record.
Plaintiffs urge that Defendants should not be allowed to delay this appeal a second
time because they changed their minds. Plaintiffs point out that Appellant-
Defendant Prime Insurance Company filed a motion and order to designate the
record for appeal and did not designate the transcript of the January 3, 2022
discussion of counsel and motion to excuse Tracey Day as part of the appeal
record.1 Defendants then filed their own motion to designate the record, seeking to
limit the appeal record to “only those documents previously identified by Prime
Insurance Company’s timely motion to designate.” Plaintiffs note that Defendants
designated two additional documents but did not designate the transcript of the
argument of counsel on the morning of January 3, 2022.
Further, Plaintiffs complain that when the record was lodged with this court
on May 15, 2023, and it was apparent that the transcription of the discussion of
counsel on January 3, 2022, was not in the record, Defendants only specifically
mentioned the need for the voir dire transcript. Plaintiffs maintain that if the
January 3, 2022 argument of counsel was truly important to Defendants’ appeal,
they would have designated it as part of the record last year, and at the very least,
would have specifically requested the transcript after the record was lodged.
Plaintiffs conclude that “Justice delayed is Justice denied.” Hamilton Med.
Grp. V. Ochsner Health Plan, 550 So.2d 290, 292 (La.App. 3 Cir. 1989). Plaintiffs
1 The appeals of Prime Insurance Company, Terry Graham Trucking, and Elvis Dean Thompson were consolidated on September 13, 2022. 3 complain that their appeal has been pending for over one year and that Defendants
have already asked for and obtained a stay of briefing deadline to supplement the
record with the voir dire transcript. Defendants now ask for a second indefinite
delay to obtain a transcript that contains no evidence and involves a purely
discretionary decision. Plaintiffs urge that this is not a material omission
contemplated by La.Code Civ.P. art. 2132, but is an afterthought by Defendants.
As such, Plaintiffs urge that there is no just reason to delay this appeal any further.
In reply to Plaintiffs’ opposition, Defendants assert that they did attempt to
designate the transcript of the January 3, 2022 trial proceedings as part of the
record on appeal. Defendants’ state that Prime Insurance Company designated all
trial transcripts from the trial held on January 3-7, 2022, which included the
transcript of the oral motions made, argued, and decided after the case was called
for trial on the morning of January 3, 2022. Thereafter, Defendants filed their own
motion to designate the record, seeking to limit the record to “those documents
previously identified in Prime Insurance Company’s timely motion to designate,”
plus two additional documents. Defendants conclude that this evidences their
attempt to designate the transcript from the oral motion that Plaintiffs made on the
morning of January 3, 2022. Moreover, Defendants point out that Plaintiffs
opposed the limited designation, and the trial court ordered that the entire record be
designated, including a transcript of all proceedings.
Lastly, Defendants argue that the transcript of the oral motion, argument,
and order allowing Tracey Day to only appear at trial during her testimony is
critical to the issues to be raised on appeal. Defendants claim that the motion for
Tracey Day to only appear during her testimony due to alleged medical issues was
the first notice Defendants received of Tracey Day’s intent to miss trial.
Defendants assert that it was this argument—that Tracey Day was in too much pain 4 to sit through trial—which necessitated the immediate surveillance obtained by
Defendants during trial to determine the credibility of Tracey Day’s representation
to the trial court. When Defendants attempted to use the surveillance video as
impeachment evidence during trial, the trial court precluded the introduction of the
video as well as the testimony of the private investigator who obtained the
surveillance footage, finding that discovery had been closed. Defendants conclude
that the crux of the appeal is the trial court’s error in precluding impeachment
evidence at trial. Defendants contend that representations made concerning Tracey
Day’s condition, such as the length of time she can sit or stand or the activities in
which she can partake, is extremely relevant and material to the instant appeal.
Considering the fact that Defendants attempted to designate the transcript of
the January 3, 2022 trial proceedings, the fact that the entire record was designated
by the trial court, and Defendants’ assertion regarding the relevance of the desired
transcript, we grant Defendants’ motion to supplement the record. We hereby
order that the Fourteenth Judicial District Court Clerk of Court supplement the
record of the appeal pending in the Third Circuit Court of Appeal, Docket No. 23-
301, to include the complete trial transcript, including, but not limited to, the
transcript from the oral motions made, argued, and decided on January 3, 2022,
and specifically, Plaintiffs’ oral motion to excuse Plaintiff Tracey Day for the
entire length of trial. Briefing is suspended pending receipt of the supplemental
record in this court.
SECOND MOTION TO SUPPLEMENT APPEAL RECORD GRANTED.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Uniform Rules―Courts of Appeal, Rule 2-16.3.