Ice v. Dry Klean Carpet Maintenance Co.

863 So. 2d 596, 2003 La.App. 4 Cir. 0525, 2003 La. App. LEXIS 3551, 2003 WL 22976139
CourtLouisiana Court of Appeal
DecidedDecember 3, 2003
DocketNos. 2003-CA-0525, 2003-CA-0663
StatusPublished
Cited by5 cases

This text of 863 So. 2d 596 (Ice v. Dry Klean Carpet Maintenance Co.) 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
Ice v. Dry Klean Carpet Maintenance Co., 863 So. 2d 596, 2003 La.App. 4 Cir. 0525, 2003 La. App. LEXIS 3551, 2003 WL 22976139 (La. Ct. App. 2003).

Opinion

h DAVID S. GORBATY, Judge.

Patricia Ice and Kiva Dennis appeal a judgment wherein they were awarded $30,000 and $15,700, respectively, arguing that the jury failed to compensate them for past and future medicals related to an aggravation of their pre-existing injuries. Plaintiffs’ further argue that the trial court erred in not assessing all costs to the defendants. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY:

Patricia Ice was the driver of a vehicle that was rear-ended by a vehicle owned by Dry Klean Carpet Maintenance, Inc., and driven by Paul Faciane. Kiva Dennis was a passenger in Ms. Ice’s vehicle. Ms. Ice and Ms. Dennis filed individual lawsuits against Paul Faciane, Dry Klean Carpet Maintenance, Inc., and State Farm Mutual Automobile Insurance Company. The cases were consolidated for trial.

During the course of the trial, the plaintiffs agreed to dismiss Dry Klean Carpet Maintenance, Inc., from the lawsuit. The jury returned a verdict finding Paul Fa-ciane to be totally at fault for the accident. It awarded Patricia Ice $30,000 | ¡.and Kiva Dennis $15,700. The trial court made the jury verdict the judgment of the court. After the trial court signed the judgment on November 12, 2002, the parties noted that the judgment inadvertently cast Dry Klean Carpet Maintenance, Inc., in judg[598]*598ment, despite the prior dismissal from the suit.

On November 22, 2002, plaintiffs filed a Motion for JNOV and to have the trial court reassess court costs. Plaintiffs argued that the general damages awarded by the jury were too low, that the jury failed to award all medical expenses incurred, and that the trial court erred in not assessing all costs of court to the defendants. Plaintiffs also noted that the judgment of November 12 incorrectly named Dry Klean Carpet Maintenance, Inc., in the judgment instead of Paul Fa-ciane.

After a hearing, the trial court signed a Judgment on January 22, 2003, denying plaintiffs’ Motion for JNOV, and amending the November 22, 2002, judgment to cast Paul Faciane in judgment in place of Dry Klean Carpet Maintenance, Inc. The court also signed an Amended Judgment that same day recognizing the change in the party’s cast in judgment, and otherwise adopting the November 22, 2002, judgment in its entirety.

Plaintiffs’ appeal the Amended Judgment.

DISCUSSION:

This ease contains a procedural issue that must be addressed before proceeding to the merits. On February 4, 2003, plaintiffs filed a Motion for Devolutive Appeal, which was signed by the trial court the same date. | s Additionally, plaintiffs filed a Designation of Contents of Record indicating that it wished only the following items be included in the record on appeal: 1) medical depositions, 2) medical bills, 3) medical records, 4) the motion for JNOV, 5) the Judgment of January 22, 2003 (denying plaintiffs’ motion for JNOV), 6) the Amended Judgment of January 22, 2003, 7) the motion and order for appeal, and, 8) the designation. On February 5, 2003, defendants also filed a designation of record requesting that the entire record, not just the portions designated by plaintiffs, be included in the appeal record. On March 5, 2003, plaintiffs filed a First Supplemental Motion for Devolutive Appeal, which was signed by the trial court the same date.

In the first motion for appeal, plaintiffs designated as issues for appeal: 1) the failure of the jury to award plaintiffs’ full damages for past and future medical expenses, and 2) the failure of the trial court to cast defendants in judgment for all court costs. In their supplemental motion for devolutive appeal, plaintiffs stated that they also wished to appeal the trial court’s inadequate general damage award.

Defendants argue that because plaintiffs designated only certain portions of the trial court record for this court to review, and made specific assignments of error in their motion for devolutive appeal, which defendants argue is tantamount to a La.Code Civ. Proc. art. 2129 statement, plaintiffs cannot enlarge the issues to be reviewed by this court in a supplemental motion for appeal. Defendants further argue that the trial court no longer had jurisdiction when it signed the supplemental motion for appeal. We agree.

14Louisiana Code of Civil Procedure art. 2088 provides that the trial court’s jurisdiction is divested, and that of the appeal court attaches, on the granting of the order of appeal. Once the order of appeal is signed, the trial court has jurisdiction only over limited matters listed in the article. The trial court does not have jurisdiction to sign a “supplemental” motion for appeal. Plaintiffs’ argument that because they filed their supplemental motion within the sixty day period for filing a motion for devolutive appeal has no merit.

Plaintiffs’ further argument that this court can “second the motion” of the trial [599]*599court is likewise without merit. Under certain circumstances, an appellant can request, by way of a motion filed in the appellate court, that the record on appeal be supplemented. However, those circumstances do not exist in this case. By their own admission, plaintiffs designated only a portion of the record on appeal as a way of saving money. After the defendants requested that the entire record.be lodged, plaintiffs attempted to appeal the general damage award by filing a supplemental motion for appeal. As stated herein, this is procedurally improper because 1) the trial court did not have jurisdiction to sign a “supplemental” motion for appeal; and, 2) plaintiffs’ had already designated the issues they wished addressed by this court on appeal.

| sAs such, the only issues to be addressed by this court are 1) whether the trial court erred in its award for past and future medical expenses; and, 2) whether the trial court erred in ordering each party to pay its own court costs.1

Plaintiffs argue that the jury erred in not awarding the full amount of medical expenses resulting from Paul Faciane’s acts of negligence. This argument is premised on the jury’s affirmative answer to the following interrogatory:

Did you find the KIVA DENNIS/PATRICIA ICE suffered any injury or aggravation of a pre-existing injury as a result of the accident of August 20, 1999?

What plaintiffs fail to recognize is that the question asked of the jury is two-fold, that is, the word “or” placed between “any injury” and “aggravation of a pre-existing injury” is disjunctive. Thus, the jury was free to conclude that the accident in question caused new injuries and aggravation of pre-existing injuries, or new injuries, or only aggravation of pre-existing injuries. Based on the damages awarded, it is apparent that the jury found plaintiffs incurred only new injuries. Consequently, the jury awarded special damages relative only to the new injuries.

A. Kiva Dennis

Dr. Warren R. Bourgeois, a board certified orthopedic surgeon, testified that he was already treating Ms. Dennis for injuries sustained in an April 1998 accident, when he began treating her additionally for the subject August 1999 accident. It was his opinion that she suffered an aggravation of the injuries sustained in the | ^earlier accident, as well as new injuries. His opinion was based on the fact that the prior accident caused lower back problems, and, following the subject accident, Ms. Dennis complained of pain near her right scapula and neck. Dr.

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863 So. 2d 596, 2003 La.App. 4 Cir. 0525, 2003 La. App. LEXIS 3551, 2003 WL 22976139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ice-v-dry-klean-carpet-maintenance-co-lactapp-2003.