Jose Rodriguez-Zaldivar and Dylcio Rodriguez Cruz v. Charles Leggett and Progressive Casualty Insurance Company

• Court: Louisiana Court of Appeal
• Decided: September 28, 2022
• Docket: 2021-CA-0478
• Status: Published

Opinion

JOSE RODRIGUEZ- * NO. 2021-CA-0478 ZALDIVAR AND DYLCIO RODRIGUEZ CRUZ * COURT OF APPEAL

VERSUS * FOURTH CIRCUIT

CHARLES LEGGETT AND * STATE OF LOUISIANA PROGRESSIVE CASUALTY INSURANCE COMPANY *

* *******

DLD DYSART, J., CONCURS IN PART AND DISSENTS IN PART

I concur with the majority opinion in so far as it reverses the district court’s

admission of the plaintiffs’ depositions in lieu of their live testimony and vacates

the district court’s judgment. However, I dissent from the majority’s decision to

remand this matter to the district court for a new trial.

Generally, when the trial court makes evidentiary errors that are prejudicial,

such as they materially affect the outcome of the trial and deprive a party of

substantial rights, and if the record is otherwise complete, the appellate court will

conduct its own de novo review of the record. Melerine v. Tom’s Marine &

Salvage, LLC, 20-00571 (La. 3/24/21), 315 SO.3d 806; see also La. C.E. art.

103(A). However, our Supreme Court has recognized that in limited

circumstances, when necessary to reach a just decision and to prevent a

miscarriage of justice, an appellate court should remand the case to the trial court

under the authority of Louisiana Code of Civil Procedure Article 2164, rather than

undertaking de novo review. Id. (citing Wegener v. Lafayette Ins. Co., 10-0810

(La. 3/15/11), 60 So.3d 1220, 1233). Whether a particular case should be

remanded is largely within the court’s discretion and depends upon the

circumstances of the case. Id. (citing Wegener, 60 So.3d at 1234); see also Pollard v. 21st Century Centennial Ins. Co., 21-65, p. 11 (La. App. 5 Cir. 12/23/21), 334

So.3d 1013.

Based upon my review, I do not see the need to remand this matter to the

trial court. Based upon the majority’s holding, the entire record is before this

Court minus the depositions of the plaintiffs. Accordingly, without their testimony

and considering only the testimony of the defendant, Mr. Leggett, the matter

should be dismissed and a ruling rendered in favor of defendant.

It is only in limited circumstances where cases in this posture should be

remanded to the trial court. Here the majority rely on the Cawthorne decision in

reasoning that the matter should be remanded, however, I believe this case is

clearly distinguishable. In Cawthorne, the defendant was absent at trial, as he was

in a voluntary rehabilitation program in another state. The court felt that the weight

of the evidence was so nearly equal that a firsthand look at the witnesses was

essential to a fair resolution of the issues.

Here the plaintiffs, the pursuers of the claim for damages were absent. Not

only were they absent for the trial but for a pre-trial IME for which they failed to

submit. They also did not appear at the trial nor did they offer any proof or

evidence of the reason for their non-appearance.

The full record of this matter reflects that the case initially came before this

court on appeal after the trial court granted a dismissal to the defendants due to the

plaintiff’s failure to appear at a court ordered IME. On appeal, this Court felt the

dismissal was draconian and remanded the case back to the trial court. In the

opinion this court admonished the plaintiffs stating: “Although the parties

repeatedly state in their pleadings and briefs that Cruz did not appear for the IME

because he was deported to Honduras, and could not return to the United States,

there is no evidence in the record to support this contention. Arguments of counsel

in briefs or memoranda are not evidence.” Rodriquez-Zaldivar v. Leggett, 2018- 0410 (La. App. 4 Cir. 1/23/19). After the remand, Cruz failed once again to appear

for another IME. However, though counsel for defendants again moved for

dismissal, the trial court imposed no sanctions. As a result no IME was afforded

the defendant in advance of the trial.

Although plaintiff’s counsel knew the plaintiffs had been deported, a motion

to conduct their video/Zoom depositions was not heard until the day prior to trial

held on October 21, 2020. No evidence was presented on the issue of the

plaintiffs’ absence, only the representation of counsel that they had been deported.

From the date of this Court’s remand on January 19, 2019 until the trial date, on

October 21, 2020, the plaintiffs failed to provide one iota of evidence that they

were deported or otherwise unavailable.

Ten days before oral argument was held in this Court the plaintiff moved to

supplement the record with the testimony of plaintiff Cruz, representing that he had

returned to the United States. The request was appropriately denied as the record

was complete from the trial court and before this court.

To allow a remand would give the plaintiffs a third bite at the apple, which I

believe would create a dangerous precedent and a patently unfair result.

Accordingly, I would rule based upon the record before this court and dismiss the

plaintiffs claim.