Michael Duplessis Versus Waste Connections of Louisiana, Inc., Ace American Insurance Company, and Lisa Reed

• Court: Louisiana Court of Appeal
• Decided: January 22, 2024
• Docket: 23-C-589
• Status: Unknown

Opinion

MICHAEL DUPLESSIS NO. 23-C-589

VERSUS FIFTH CIRCUIT

WASTE CONNECTIONS OF LOUISIANA, INC., COURT OF APPEAL ACE AMERICAN INSURANCE COMPANY, AND LISA REED STATE OF LOUISIANA

January 22, 2024

Linda Wiseman First Deputy Clerk

IN RE WASTE CONNECTIONS BAYOU, INC., ACE AMERICAN INSURANCE COMPANY, AND LISA REED

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS, DIVISION "G", NUMBER 825-887

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Scott U. Schlegel

WRIT GRANTED FOR LIMITED PURPOSE; REMANDED

In this personal injury case, relators/defendants, Waste Connections Bayou,

Inc., ACE American Insurance Company, and Lisa Reed, seek review of the trial

court’s November 16, 2023 judgment denying their Motion to Compel

Neuropsychological Evaluation. For the following reasons, we grant the writ

application for the limited purpose of vacating the trial court’s judgment and

remanding for further proceedings on defendants’ motion.

The trial court has the authority to order a party to submit to an examination

when a plaintiff’s condition is “in controversy,” and there is “good cause” for the

examination. La. C.C.P. art. 1464(A). A showing of “good cause” under La.

C.C.P. art. 1464 requires that the moving party establish a reasonable nexus

23-C-589 between the requested examination and the condition in controversy. Hicks v.

USAA Gen. Indem. Co., 21-840 (La. 3/25/22), 339 So.3d 1106, 1108.

On September 8, 2023, defendants filed a “Motion to Compel

Neuropsychological Evaluation and Amend Scheduling Order,” pursuant to La.

C.C.P. art. 1464, asking the trial court to order Mr. Duplessis to submit to a

neuropsychological evaluation by Dr. Kevin Greve. Defendants asserted that Mr.

Duplessis was treated by a clinical psychologist, Dr. Beverly Howze, and her

report sets forth her opinions and indicates that it is essential for Mr. Duplessis to

complete neurological and neuropsychological assessments. In support of their

motion, defendants attached Dr. Howze’s report and other exhibits to their

memorandum. On October 13, 2023, Mr. Duplessis filed a memorandum in

opposition to defendants’ motion and attached several exhibits as well.

Defendant’s Motion to Compel Neuropsychological Evaluation came for

hearing on October 23, 2023. At the hearing, the parties presented arguments and

referred to their exhibits, but no evidence was introduced or admitted. After taking

the matter under advisement, the trial court rendered a judgment denying the

motion on November 16, 2023.

In this writ application, defendants contend that the trial court abused its

discretion by denying their Motion to Compel a Neuropsychological Evaluation.

However, after review, we find that we are unable to assess the merits of

defendants’ motion.

Although the parties attached exhibits to their memoranda in support of their

arguments, we cannot consider these exhibits because the transcript reflects that

they were not introduced or admitted into evidence at the hearing.

Evidence not properly and officially offered and introduced cannot be

considered, even if the evidence is physically placed in the record. Scheuermann

v. Cadillac of Metairie, Inc., 11-1149 (La. App. 5 Cir. 5/31/12), 97 So.3d 423, 427,

2 citing Denoux v. Vessel Management Services. Inc., 07-2143 (La. 5/21/08), 983

So.2d 84, 88. Documents attached to memoranda do not constitute evidence and

cannot be considered by the appellate court. Id.

Although we cannot consider the exhibits filed by the parties as attachments

to their memoranda, La. C.C.P. art. 2164 provides that an “appellate court shall

render any judgment which is just, legal and proper upon the record.” It is well

settled that an appellate court is empowered under this article to remand a case to

the trial court for the taking of additional evidence where it is necessary to reach a

just decision and to prevent a miscarriage of justice. Alex v. Rayne Concrete

Service, 05-1457 (La. 1/26/07), 951 So.2d 138, 155. Whether a particular case

should be remanded is a matter which is vested largely within the court's discretion

and depends upon the circumstances of the case. Id.

Considering the arguments before us, we grant the writ application for the

limited purpose of vacating the trial court’s November 16, 2023 judgment and

remanding this matter to the trial court for a hearing to allow the parties to properly

offer, file, and introduce their exhibits into evidence. We further order the trial

court to render its decision based on the evidence properly before it for

consideration.

Gretna, Louisiana, this 22nd day of January, 2024.

FHW SMC SUS

3 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 01/22/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-C-589 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable E. Adrian Adams (DISTRICT JUDGE) Jacob K. Best (Relator) Guice A. Giambrone, III (Relator) Christopher H. Sherwood (Respondent) Jessica F. Gensler (Relator)

MAILED Warren A. Forstall, Jr. (Respondent) Attorney at Law 320 North Carrollton Avenue Suite 200 New Orleans, LA 70119 SENDt::.H: COMPLETE TH/$ SECTION

• Complete Items 1, 2, and 3. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mallpiece, or on the front If space pennits. 1. Article A,ddre$sed to: Warrctt A. Forstall, Jr. 320 North Carrollton Avenue Suite 200 New Orleans, LA 70119 23-C-589 01-22-24

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