Cavalier v. State ex rel. Department of Transportation & Development

994 So. 2d 635
CourtLouisiana Court of Appeal
DecidedSeptember 12, 2008
DocketNos. 2008 CA 0561, 2008 CA 0562
StatusPublished
Cited by1 cases

This text of 994 So. 2d 635 (Cavalier v. State ex rel. Department of Transportation & Development) 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
Cavalier v. State ex rel. Department of Transportation & Development, 994 So. 2d 635 (La. Ct. App. 2008).

Opinions

CARTER, C.J.

| aThese consolidated matters arose out of a motor vehicle accident. Defendant, the State of Louisiana through the Department of Transportation and Development (DOTD), appeals regarding the propriety of the trial court’s denial of DOTD’s motion for mistrial after the trial court discharged the twelfth juror and continued the jury trial with eleven jurors over DOTD’s objection. Plaintiff, David Adjep-on-Yamoah, also appeals the trial court’s granting of a judgment notwithstanding the verdict (JNOV) and a reduction of the jury’s damage award in his favor. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 26, 2001, Alfred Adjepon-Yamoah (Alfred) lost control of his vehicle in a rainstorm after encountering water flowing over Louisiana Highway 66 (commonly referred to as the “Angola Road”) near its intersection with Pittman Road in West Feliciana Parish. While hydroplaning out of control, Alfred’s car collided with a pickup truck driven by Taffy McCray (Taffy). Sherlyn Cavalier (Sher-lyn) was riding as a guest passenger in Taffy’s vehicle. Alfred died at the scene of the accident, while Taffy and Sherlyn suffered serious injuries.

Taffy and her husband Jesse, and Sher-lyn and her husband Donald, filed a personal injury suit against DOTD for alleged improper design, construction, and maintenance of the drainage system along Angola Road and against Kelly Glass Logging, Inc. (Kelly Glass) and its insurer, State National Insurance Company (State National), for Kelly Glass’s alleged negligent logging operations that had blocked the drainage along Pittman Road, contributing to the overflow of water onto Angola Road. Similarly, Alfred’s son, David Adjepon-Yamoah (David), brought a survival and wrongful death action against DOTD, Kelly Glass, State National, and the Parish of West Feliciana (Parish), alleging the same theories of | pliability. Because both lawsuits arose out of the same accident and involved essentially the same parties and issues, the cases were consolidated for trial.1

On July 10, 2007, a nine-day jury and [639]*639bench trial commenced.2 A jury of twelve with one alternate was empaneled and sworn. On the third day of trial, one juror was released by the trial court for medical reasons, and the alternate juror , took her place with the consent of all the parties. On the fifth day of trial, July 16, 2007, another juror informed the trial court that her son was very ill. After notifying the parties and questioning the juror in the presence of the parties and on the record, the trial court released the juror for hardship over DOTD’s objection to continuing the trial with only eleven jurors. The trial court orally ruled that the remaining eleven jurors constituted a sufficient number to have a fair trial.

DOTD moved for a mistrial and a stay of the proceedings, which the trial court denied. No other party objected; however, Kelly Glass requested that any verdict rendered by the jury require nine out of eleven concurring votes. The trial court agreed and orally ruled that nine of eleven jurors must concur in the verdict, unless the parties stipulated otherwise. DOTD promptly applied for an expedited supervisory writ to this court and requested a stay of the trial. On July 17, 2007, another panel of this court denied DOTD’s motion to stay and denied the writ, stating, “See Terrance v. The Dow Chemical Co., et al., 2006-1540 (La.6/19/06), 930 So.2d 961, wherein the supreme court granted writs, reversed this court’s grant of a mistrial and reinstated a trial by eleven (11) jurors in a factually close scenario.” Sherlyn Cavalier v. The State of Louisiana, Department of Transportation and Development, 2007-1353 (La.App. 1 Cir. 7/17/07) (unpublished writ action). Thereafter, the trial continued with eleven jurors.

At the conclusion of the trial on July 20, 2007, the jury returned a unanimous verdict finding that Alfred was 0% at fault, DOTD was 80% at fault, and Kelly Glass and State National were 20% at fault in causing the accident. Additionally, the trial court found that the Parish had no fault in causing the accident. Damages were awarded to all the plaintiffs, and three separate judgments (one for the Cavaliers, one for the McCrays, and one for Alfred’s son David) were signed in accordance with the jury verdict on August 2, 2007.

DOTD, Kelly Glass, and State National moved for a JNOV, new trial, and/or re-mittitur, on the grounds that some of the damage awards are excessive. Specifically relevant to this appeal are the jury’s survival and wrongful death awards in favor of David. DOTD, Kelly Glass and State National argued that $200,000.00 awarded to David for Alfred’s mental pain and suffering prior to his death, and $400,000.00 awarded to David for the loss of financial support from Alfred, was excessive and not supported by the evidence. After a hearing on the post-trial motions, the trial court granted a JNOV in favor of DOTD, Kelly Glass and State National, reducing the jury’s survival damages award in favor of David for Alfred’s mental pain and suffering prior to his death from $200,000.00 to $50,000.00, and reducing the jury’s wrongful death damages award to David for his loss of Alfred’s financial support from $400,000.00 to $25,000.00.3 Judgment was signed accordingly on October 25, 2007.

DOTD filed a suspensive appeal from all of the judgments, arguing that the jury [640]*640verdict was a legal nullity because the trial court erred in denying DOTD’s motion for mistrial and continuing the trial with only eleven jurors over DOTD’s ^objection.4 David filed a devolutive appeal, arguing that the trial court erred: (1) in not allowing the jury to make a survival action award for the physical pain and suffering endured by Alfred prior to his death; (2) in reducing the jury’s survival award to David for Alfred’s mental pain and suffering prior to his death; and (3) in reducing the jury’s wrongful death award to David for his loss of financial support from Alfred. We will consider each appeal separately.

DOTD’S APPEAL REGARDING THE ELEVEN-MEMBER JURY

DOTD’s appeal raises three assignments of error concerning one issue: whether the trial court erred in proceeding with eleven jurors over DOTD’s objection. The other parties all argue that the “law of the ease” doctrine precludes re-litigation of the trial court’s denial of DOTD’s motion for mistrial because this court already denied DOTD’s supervisory writ application on this issue, allowing the case to proceed with eleven jurors.6

Application of the “law of the case” principle to decisions made on supervisory writs is discretionary. Therefore, any prior “determination” in a request for a supervisory writ is not necessarily binding on a subsequent appeal. Diamond B Const. Co., Inc. v. Department of Transp. and Development, 02-0573 (La.App. 1 Cir. 2/14/03), 845 So.2d 429, 434. Generally, the denial of supervisory writs does not bar a different conclusion or reconsideration of the same issue argued in the writ application when an appeal is taken from a final judgment. Levine v. First Nat. Bank of Commerce, 06-394 (La.12/15/06), 948 So.2d 1051, 1056 n. 4; East Baton Rouge Parish School Bd. v. Wilson, 08-0536 (La.App. 1 Cir. 6/6/08), 992 So.2d 537, 543; Diamond B Construction, 845 So.2d at 434. Likewise, where a prior disposition is clearly erroneous and will create a grave |-Injustice, it should be reconsidered.

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Cavalier v. STATE, EX REL. DEPT. OF TRANSP. AND DEV.
994 So. 2d 635 (Louisiana Court of Appeal, 2008)

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