Johnson v. Nguyen

793 So. 2d 370, 2000 La.App. 4 Cir. 1148, 2001 La. App. LEXIS 1793, 2001 WL 812647
CourtLouisiana Court of Appeal
DecidedJuly 11, 2001
DocketNo. 2000-CA-1148
StatusPublished
Cited by6 cases

This text of 793 So. 2d 370 (Johnson v. Nguyen) 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
Johnson v. Nguyen, 793 So. 2d 370, 2000 La.App. 4 Cir. 1148, 2001 La. App. LEXIS 1793, 2001 WL 812647 (La. Ct. App. 2001).

Opinions

JjBAGNERIS, J.

This appeal arises from a judgment of the trial court ordering the payment of $2000.00 in contempt of court sanctions and the incarceration of a witness until such time as he provided deposition testimony. For the reasons set forth below, this Court agrees with the decision of the trial court and affirms its decision.

Statement of Facts

The complicated facts of the appeal arose from a lawsuit originally stemming from an automobile accident. Terry Johnson (“Johnson”) filed suit against Tommy T. Nguyen, John Nguyen and State Farm Mutual Automobile Insurance Company (“State Farm”), seeking damages as a result of an automobile accident. Johnson claimed that he had suffered injuries as a result of this accident, and sought treat- ' ment for his alleged injuries from Dr. Earl Stewart (“Stewart”). Treatment was furnished by Stewart at the American Medical Group’s offices in New Orleans, where the doctor was practicing at the time. Stewart has since moved to Vicksburg, Mississippi.

As a central part of its defense of this case, State Farm repeatedly attempted to depose Stewart, beginning in 1998. The first attempt to depose Stewart was to hbe on January 28, 1998. Stewart was served on November 4, 1997. On January 7, 1998, State Farm filed a Notice of Deposition changing the location of the deposition from New Orleans to Tallulah, Louisiana (the location of Stewart’s office at the [372]*372time). Stewart was personally served on January 20, 1998. Stewart did not appear for this scheduled deposition, claiming that he had been unavailable for the deposition due to the recent death of his mother-in-law.

On January 22, 1998, Stewart’s attorney, Jesse Clarence Brown (“Brown”), filed an Exception of Lack of Personal Jurisdiction. State Farm’s attorney of record maintains that it was never served with this pleading, either by mail or through the sheriffs office. On February 17, 1998, Brown filed an Amended Exception of Lack of Personal Jurisdiction. Through this pleading, Brown averred to the trial court that the State of Louisiana had no power to subpoena a person who is employed within the state. In addition, Brown revealed that Stewart’s mother-in-law had in fact died on January 6, 1998, twenty-two days before the scheduled deposition.

State Farm’s attorney received this amended exception on February 23, 1998, and immediately moved to continue the hearing that had been set for February 27, 1998. This motion to continue was granted on February 27,1998.

As a result of Stewart’s failure to appear for his deposition on January 28, 1998, State Farm filed a motion to compel his deposition. The trial court set a hearing on this motion for May 8, 1998. Stewart was personally served on April 16, 1998, and Brown was personally served on April 21, 1998. Brown filed a Memorandum in Support of Exception and Amended Exception of Lack of Personal Jurisdiction and Opposition to State Farm’s Motion to Compel. This was filed on the morning of May 8, 1998, the very date that had been set for the hearing |3on the motion to compel. Following a hearing, the trial court denied Stewart’s exception and ordered Stewart to appear for his deposition on June 12, 1998 at his office in Tallulah, Louisiana.

On May 11, 1998, Brown filed a Motion for New Trial and Protective Order. The trial court denied this motion on May 27, 1998. Stewart was personally served regarding the June 12 deposition on May 22, 1998, and Brown was personally served on May 18,1998.

Three days before the scheduled deposition, Brown filed a Petition for Suspensive Appeal and Ex Parte Motion for Stay regarding State Farm’s Motion to Compel and the trial court’s decision ordering Stewart’s deposition. The judge pro tem-pore granted this petition. Brown failed to inform the judge pro tempore of the trial court’s denial of the protective order and failed to furnish a copy of the record to the judge pro tempore. This decision of the judge pro tempore was recalled the next day, June 10, 1998, by the trial judge assigned the case. The trial court determined that the granting of the suspensive appeal was erroneous, as no suspensive appeal can be taken from an interlocutory order.

On June 11, 1998, Brown filed a Petition for Remedial Writs of Certiorari and an Ex Parte Motion to stay with this Court. Brown notified State Farm’s attorney of this petition at 5:05 PM, thereby preventing State Farm from filing an opposition that day. This Court granted Brown’s request for the stay on June 11, the day before the scheduled deposition. This Court granted Brown’s request for the stay on June 11, the day before the scheduled deposition. This Court denied the petition and motion the next day, but it happened too late for State Farm’s attorney to depose Stewart at the scheduled time on June 12. On Jun 19, 1998, State Farm attempted to depose Dr. Stewart in his office in Tallulah, Louisiana, but was unsuccessful again.

[373]*37314As a result of the actions detailed above, the trial court held Stewart in Contempt of Court and ordered his arrest until such time as he agreed to give his deposition. It is from this decision that Stewart appeals. Additionally, State Farm has filed a motion with this Court seeking sanctions against Brown for filing frivolous appeals.

The Applicable Law

A trial court has wide discretion in deciding whether to impose sanctions for failure to comply with discovery orders. The trial court’s decision to impose sanctions as well as its choice of sanctions will not be reversed absent an abuse of discretion. See Moody v. Moody, 622 So.2d 1376 (La.App. 1 Cir.1993).

The Louisiana Code of Civil Procedure authorizes contempt of court sanctions in certain circumstances. La. C.C.P. Art. 221 defines contempt of court as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” La. C.C.P. Art. 224 describes certain actions, which constitute constructive contempt of court. Among these actions is the “willful disobedience of any lawful judgment, order, mandate, writ, or process of the court”, and any act or omission “intended to obstruct or interfere with the orderly administration of justice or to impair the dignity of the court or respect for its authority.” See La. C.C.P. Art. 224(2), (10).

The failure to appear for a deposition pursuant to a properly served subpoena is a contumacious act, which is properly punishable by the trial judge under La. C.C.P. Art. 225. See Bernard v. State Farm Mutual Ins. Co., 98-2509 (La.App. 4 Cir. 6/30/99); 742 So.2d 609, 614. Furthermore, La.C.C.P. Art. 226 provides that a | [pudge may call for the imprisonment of a person charged with contempt if the contempt consists of the omission to perform an act which is in the power of the person charged to perform.

Under LSA R.S. 13:4611, a trial judge may impose the following sanctions on a person charged with contempt of court: 1) for a deliberate refusal to perform an act which is yet within the power of the offender to perform, by imprisonment until he performs the act; and 2) for any other contempt of court, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.

Sanctions may also be properly imposed when court proceedings are initiated merely to cause delay or harassment to the other party to the suit. Under La. C.C.P. Art.

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Cite This Page — Counsel Stack

Bluebook (online)
793 So. 2d 370, 2000 La.App. 4 Cir. 1148, 2001 La. App. LEXIS 1793, 2001 WL 812647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-nguyen-lactapp-2001.