Judgment rendered June 29, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,598-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
MARY MARGARET BROUSSARD Plaintiff-Appellee
versus
JEFFREY D. BROUSSARD Defendant-Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 605,911
Honorable Brady D. O’Callaghan, Judge
LAW OFFICES OF E. RAY KETHLEY Counsel for Appellant By: E. Ray Kethley, Jr.
KAMMER & HUCKABAY, LTD Counsel for Appellee By: Charles H. Kammer, III
Before MOORE, STONE, and ROBINSON, JJ. ROBINSON, J.
On June 15, 2021, Defendant, Jeffrey D. Broussard (“Jeffrey”), filed a
motion for devolutive appeal from a judgment entered on August 25, 2020,
from a community property trial that took place on July 14, 2020. The
matter had proceeded to trial after the trial court denied Jeffrey’s motion for
a continuance on the basis of the motion’s untimeliness. For the following
reasons, the trial court’s judgment is hereby affirmed.
FACTS AND PROCEDURAL HISTORY
This appeal arises from litigation initiated by Plaintiff, Mary Margaret
Broussard (“Mary”), to partition the community property between her and
Jeffrey. Jeffrey filed a motion to continue the community property trial
scheduled for July 14, 2020, at 2:30 p.m., based on the July 9, 2020,
physician recommendation that his attorney, E. Ray Kethley, Jr. (“Kethley”),
not work for at least four weeks. The motion was faxed to the clerk of court
on the morning of July 14, 2020, but was not filed until July 17, 2020, and
not received by the court until July 20, 2020. The trial court denied the
motion on the basis of untimeliness and proceeded with the trial. A ruling
and judgment were thereafter signed and filed on August 25, 2020.
On September 4, 2020, Mary filed a “Motion to Amend, Clarify
Judgment, Correct Calculation, New Trial, Enter Equalization Payment in
the Form of a Mortgage and/or Allocate/Sell Asset.” A hearing on that
motion was scheduled for December 7, 2020. On October 26, 2020, Jeffrey
filed a motion for devolutive appeal from the August 25, 2020, judgment,
which was denied by the trial court based on prematurity. On the morning of the December 7, 2020, hearing, Jeffrey filed a
motion to recuse, claiming that the trial court judge was prejudiced toward
or against Kethley to such an extent that the judge would be unable to
conduct fair and impartial proceedings. Written reasons for judgment were
filed by a different district judge on February 4, 2021, denying the motion to
recuse, stating that Jeffrey failed to prove bias, prejudice, or personal interest
on behalf of the presiding judge.
On June 15, 2021, Jeffrey filed another motion for devolutive appeal
from the August 25, 2020, judgment, which was then granted by the
presiding judge.
DISCUSSION
Jeffrey claims that the trial court abused its discretion when it denied
his motion to continue and proceeded with the trial without Jeffrey or
Kethley being present.
The basis for his motion to continue the July 14, 2020, trial was
Kethley’s recommendation from his internist on July 9, 2020, handwritten
on a prescription pad, that he avoid work for four weeks or until his
symptoms of chest tightness, shortness of breath, and fatigue, could be
evaluated. A copy of the note was attached to the motion. The motion was
faxed to the Caddo Parish Clerk of Court’s emergency filing facsimile
number on July 14, 2020, at 9:07 a.m., as shown in a communication result
report attached to the later-filed motion to recuse, despite the motion being
subsequently file-stamped on July 17. Jeffrey asserts that since the trial was
not scheduled until 2:30 p.m., the motion submitted earlier that morning was
timely.
2 Jeffrey claims that the facts of this case demonstrated good cause for
a continuance because Kethley had a legitimate medical reason not to attend
the trial and notified the court prior to trial. Jeffrey argues that he was
diligent, acted in good faith, and had reasonable grounds for a continuance.
Therefore, he argues that the trial court abused its discretion in a way that
deprived Jeffrey of his day in court by rendering a judgment based on
evidence submitted without Jeffrey or Kethley present.
Mary argues that the trial court acted in a fair and reasonable manner
in denying the subject motion to continue. In her brief, she offers additional
insight as to why the denial of the motion was justified, claiming that there
were several instances of Jeffrey’s untimely filing and inadequate
communication.
Following Mary’s filing of an amended petition for divorce on July 3,
2018, which requested the termination and partition of the community, the
parties were ordered to file sworn detailed descriptive lists within 45 days of
the order and a traversal within 60 days of service of the filed sworn detailed
descriptive list. Mary’s counsel, Charles H. Kammer, III (“Kammer”), sent
Mary’s sworn detailed descriptive list to Kethley on October 11, 2018. A
Rule 10.1 conference was set for November 1, 2018, to address outstanding
discovery propounded to Jeffrey and to discuss when Jeffrey would provide
his traversal of the sworn detailed descriptive list. Kammer sent a letter to
Kethley on November 1, 2018, regarding the conference, to which he replied
he would provide his outstanding discovery answers within a week. The
answers were never sent.
3 On January 16, 2020, Mary filed a “Rule for Contempt and to Make
Past Due Amounts Executory” alleging that Jeffrey was not paying his
portion of the minor child’s medical and extracurricular expenses. She filed
a joint unified list on February 11, 2020, a copy of which was sent to
Kethley. Court was set for April 7, 2020, but was continued to June 1, 2020,
due to COVID delays. Jeffrey filed a motion for continuance via facsimile
on May 31, 2020, the day before the hearing, at 5:05 p.m., which was not
received by the clerk until the following day, the day of the hearing.
The court commenced with the May 31, 2020, hearing and an order
was entered for Jeffrey to provide the outstanding discovery answers by July
7, 2020, and to respond to the joint unified list, and that if Jeffrey failed to
respond to the joint unified list, it would be deemed admitted. The order
was mailed to Kethley on June 12, 2020. Jeffrey filed another motion to
continue on July 14, 2020, the morning of trial, which is the subject of this
appeal.
Kammer informed the court at trial that he received a courtesy copy of
the motion for continuance that morning, but the court checked with the
clerk and confirmed that it had not been filed in the record. The court also
inquired with staff to see if any other communication had been received by
Kethley concerning the continuance or inability to appear, and confirmed
that there was none. The court found it reasonable to move forward with
proceedings considering the lack of communication and the fact the matter
had already been continued several times, albeit once due to COVID. The
court also noted Zoom hearings are often conducted, which could have been
requested by Jeffrey had he contacted the court.
Free access — add to your briefcase to read the full text and ask questions with AI
Judgment rendered June 29, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,598-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
MARY MARGARET BROUSSARD Plaintiff-Appellee
versus
JEFFREY D. BROUSSARD Defendant-Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 605,911
Honorable Brady D. O’Callaghan, Judge
LAW OFFICES OF E. RAY KETHLEY Counsel for Appellant By: E. Ray Kethley, Jr.
KAMMER & HUCKABAY, LTD Counsel for Appellee By: Charles H. Kammer, III
Before MOORE, STONE, and ROBINSON, JJ. ROBINSON, J.
On June 15, 2021, Defendant, Jeffrey D. Broussard (“Jeffrey”), filed a
motion for devolutive appeal from a judgment entered on August 25, 2020,
from a community property trial that took place on July 14, 2020. The
matter had proceeded to trial after the trial court denied Jeffrey’s motion for
a continuance on the basis of the motion’s untimeliness. For the following
reasons, the trial court’s judgment is hereby affirmed.
FACTS AND PROCEDURAL HISTORY
This appeal arises from litigation initiated by Plaintiff, Mary Margaret
Broussard (“Mary”), to partition the community property between her and
Jeffrey. Jeffrey filed a motion to continue the community property trial
scheduled for July 14, 2020, at 2:30 p.m., based on the July 9, 2020,
physician recommendation that his attorney, E. Ray Kethley, Jr. (“Kethley”),
not work for at least four weeks. The motion was faxed to the clerk of court
on the morning of July 14, 2020, but was not filed until July 17, 2020, and
not received by the court until July 20, 2020. The trial court denied the
motion on the basis of untimeliness and proceeded with the trial. A ruling
and judgment were thereafter signed and filed on August 25, 2020.
On September 4, 2020, Mary filed a “Motion to Amend, Clarify
Judgment, Correct Calculation, New Trial, Enter Equalization Payment in
the Form of a Mortgage and/or Allocate/Sell Asset.” A hearing on that
motion was scheduled for December 7, 2020. On October 26, 2020, Jeffrey
filed a motion for devolutive appeal from the August 25, 2020, judgment,
which was denied by the trial court based on prematurity. On the morning of the December 7, 2020, hearing, Jeffrey filed a
motion to recuse, claiming that the trial court judge was prejudiced toward
or against Kethley to such an extent that the judge would be unable to
conduct fair and impartial proceedings. Written reasons for judgment were
filed by a different district judge on February 4, 2021, denying the motion to
recuse, stating that Jeffrey failed to prove bias, prejudice, or personal interest
on behalf of the presiding judge.
On June 15, 2021, Jeffrey filed another motion for devolutive appeal
from the August 25, 2020, judgment, which was then granted by the
presiding judge.
DISCUSSION
Jeffrey claims that the trial court abused its discretion when it denied
his motion to continue and proceeded with the trial without Jeffrey or
Kethley being present.
The basis for his motion to continue the July 14, 2020, trial was
Kethley’s recommendation from his internist on July 9, 2020, handwritten
on a prescription pad, that he avoid work for four weeks or until his
symptoms of chest tightness, shortness of breath, and fatigue, could be
evaluated. A copy of the note was attached to the motion. The motion was
faxed to the Caddo Parish Clerk of Court’s emergency filing facsimile
number on July 14, 2020, at 9:07 a.m., as shown in a communication result
report attached to the later-filed motion to recuse, despite the motion being
subsequently file-stamped on July 17. Jeffrey asserts that since the trial was
not scheduled until 2:30 p.m., the motion submitted earlier that morning was
timely.
2 Jeffrey claims that the facts of this case demonstrated good cause for
a continuance because Kethley had a legitimate medical reason not to attend
the trial and notified the court prior to trial. Jeffrey argues that he was
diligent, acted in good faith, and had reasonable grounds for a continuance.
Therefore, he argues that the trial court abused its discretion in a way that
deprived Jeffrey of his day in court by rendering a judgment based on
evidence submitted without Jeffrey or Kethley present.
Mary argues that the trial court acted in a fair and reasonable manner
in denying the subject motion to continue. In her brief, she offers additional
insight as to why the denial of the motion was justified, claiming that there
were several instances of Jeffrey’s untimely filing and inadequate
communication.
Following Mary’s filing of an amended petition for divorce on July 3,
2018, which requested the termination and partition of the community, the
parties were ordered to file sworn detailed descriptive lists within 45 days of
the order and a traversal within 60 days of service of the filed sworn detailed
descriptive list. Mary’s counsel, Charles H. Kammer, III (“Kammer”), sent
Mary’s sworn detailed descriptive list to Kethley on October 11, 2018. A
Rule 10.1 conference was set for November 1, 2018, to address outstanding
discovery propounded to Jeffrey and to discuss when Jeffrey would provide
his traversal of the sworn detailed descriptive list. Kammer sent a letter to
Kethley on November 1, 2018, regarding the conference, to which he replied
he would provide his outstanding discovery answers within a week. The
answers were never sent.
3 On January 16, 2020, Mary filed a “Rule for Contempt and to Make
Past Due Amounts Executory” alleging that Jeffrey was not paying his
portion of the minor child’s medical and extracurricular expenses. She filed
a joint unified list on February 11, 2020, a copy of which was sent to
Kethley. Court was set for April 7, 2020, but was continued to June 1, 2020,
due to COVID delays. Jeffrey filed a motion for continuance via facsimile
on May 31, 2020, the day before the hearing, at 5:05 p.m., which was not
received by the clerk until the following day, the day of the hearing.
The court commenced with the May 31, 2020, hearing and an order
was entered for Jeffrey to provide the outstanding discovery answers by July
7, 2020, and to respond to the joint unified list, and that if Jeffrey failed to
respond to the joint unified list, it would be deemed admitted. The order
was mailed to Kethley on June 12, 2020. Jeffrey filed another motion to
continue on July 14, 2020, the morning of trial, which is the subject of this
appeal.
Kammer informed the court at trial that he received a courtesy copy of
the motion for continuance that morning, but the court checked with the
clerk and confirmed that it had not been filed in the record. The court also
inquired with staff to see if any other communication had been received by
Kethley concerning the continuance or inability to appear, and confirmed
that there was none. The court found it reasonable to move forward with
proceedings considering the lack of communication and the fact the matter
had already been continued several times, albeit once due to COVID. The
court also noted Zoom hearings are often conducted, which could have been
requested by Jeffrey had he contacted the court.
4 Mary also refers to the circumstances regarding the September 4,
2020, filing of the “Motion to Amend, Clarify Judgment, Correct
Calculation, New Trial, Enter Equalization Payment in the Form of a
Mortgage and/or Allocate/Sell Asset.” A hearing was scheduled on that
motion for December 7, 2020. Jeffrey filed a motion for devolutive appeal
on October 26, 2020, which was denied as premature. Jeffrey then filed the
motion to recuse, again on the morning of the December 7, 2020, hearing.
La. C.C.P. art. 1601 provides that a continuance may be granted in
any case “if there is good ground therefor.” “Good” ground is something less
than a “peremptory” ground, for which La. C.C.P. art. 1602 declares a
continuance “shall” be granted.
The trial court has great discretion in granting or denying a
continuance under La. C.C.P. art. 1601, and its ruling should not be
disturbed on appeal in the absence of a clear abuse of that discretion. St.
Tammany Parish Hospital v. Burris, 00-2639 (La. App. 1 Cir. 12/28/01),
804 So. 2d 960. “It is a well-established rule that the trial judge has wide
discretion in acting upon a motion for continuance. His ruling will not be
disturbed on appeal in the absence of clear showing of abuse of that
discretion.” Sauce v. Bussell, 298 So. 2d 832 (La. 1974); Jackson v. Royal
Ins. Co., 97-723 (La. App. 3 Cir. 12/17/97), 704 So. 2d 424; Taylor v. Sauls,
99-1436 (La. App. 3 Cir. 9/6/00), 772 So. 2d 686, writs denied, 00-2802, 00-
2805 (La. 12/8/00), 776 So. 2d 461; Howard v. Lee, 50,366 (La. App. 2 Cir.
1/13/16), 185 So. 3d 144. An abuse of discretion occurs when such
discretion is exercised in a way that deprives a litigant of his day in court.
Howard, id.
5 The trial court must consider the particular facts of a case when
deciding whether to grant or deny a continuance, including the diligence and
good faith of the party seeking the continuance and other reasonable
grounds. Tarbutton v. Tarbutton, 52,102 (La. App. 2 Cir. 6/27/18), 251 So.
3d 590; Connor v. Scroggs, 35,521 (La. App. 2 Cir. 6/12/02), 821 So. 2d
542. Equally important is the defendant’s corollary right to have his case
heard as soon as is practicable. The trial court may also weigh the condition
of the court docket, fairness to both parties and other litigants before the
court, and the need for orderly and prompt administration of justice.
Tarbutton, supra; Connor, supra; Howard, supra; Wilkerson v. Darden
Direct Distribution, Inc., 53,263 (La. App. 2 Cir. 3/4/20), 293 So. 3d 146.
As Mary notes in her brief, Jeffrey attempted to file the subject
motion for continuance on the morning of trial via facsimile, but did not
contact the court to verify that it had been received. The basis for Jeffrey’s
motion was Kethley’s physician recommendation that was received on July
9, 2020, five days prior to trial. There was ample time to contact the
opposing party and the court regarding a continuance, but Jeffrey delayed
filing until the morning of trial. The trial court did not diminish in any way
Kethley’s health concerns, but merely stated that his condition was not so
severe as to warrant the failure to timely notify the court. Further, Jeffrey
had established a pattern of untimeliness by filing motions several times
either on the eve or morning of court, and each time he failed to follow up
on the filings and did not appear in court to argue the merits of any of the
motions. It is also apparent from the record that Kammer attempted to
correspond with Kethley multiple times prior to court appearances with no
6 response. The trial court was justified in its denial of Jeffrey’s motion for
continuance and did not abuse its discretion by proceeding with the
scheduled trial and ultimately rendering judgment in connection thereto.
CONCLUSION
For the foregoing reasons, this Court AFFIRMS the trial court’s
denial of Jeffrey’s motion for continuance and the corresponding August 25,
2020, judgment entered in the community property trial of July 14, 2020.
Court costs are to be taxed to Jeffrey.
AFFIRMED.