Penny Richard v. Dustin Todd Richard

• Court: Louisiana Court of Appeal
• Decided: November 25, 2020
• Docket: CA-0020-0182
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 20-182

PENNY RICHARD

VERSUS

DUSTIN TODD RICHARD

**********

APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. C-2019-174 HONORABLE JOEL GERARD DAVIS, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of Billy Howard Ezell, Phyllis M. Keaty, and D. Kent Savoie, Judges.

REVERSED AND REMANDED. Kenneth Ray Rush Attorney at Law 102 S. 10th Street Oakdale, LA 71463 (318) 335-2759 COUNSEL FOR PLAINTIFF/APPELLEE: Penny Richard

John Green, Jr. Law Offices of John Green, Jr. 1135 Hodges St. Lake Charles, LA 70601 (337) 990-0060 COUNSEL FOR DEFENDANT/APPELLANT: Dustin Todd Richard EZELL, Judge.

Dustin Richard appeals the decision of the trial court below dismissing his

motion to modify child and interim spousal support. For the following reasons, we

reverse the decision of the trial court and remand the matter for further proceedings.

As part of their divorce proceedings, Penny and Dustin Richard entered

stipulated judgments resulting in Mr. Richard paying $1,515 per month in child

support and $4,700 per month in interim spousal support. On December 2, 2019,

Mr. Richard filed a motion to modify the support awards alleging that he had

suffered a material change in circumstances when he was terminated from his

employment. During the hearing on the motion, the trial court interrupted Mr.

Richard’s testimony and dismissed his motion based on his partial testimony.

From that decision, Mr. Richard appeals.

On appeal, Mr. Richard asserts two assignments of error. He first claims that

the trial court erred in dismissing his motion before the conclusion of his case. He

also claims that the trial court erred in ruling against his motion based on his

uncontroverted testimony. Because we find merit in his first assignment of error,

we need not address his second.

Louisiana Code of Civil Procedure Article 1672(B) provides (emphasis

added):

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. Louisiana Code of Civil Procedure Article 1672(B) grants to any party the

right to move for dismissal after the plaintiff has completed the presentation of his

or her evidence. Therefore, a judgment of involuntary dismissal under La.Code

Civ.P. art. 1672(B) requires a motion on behalf of either party. The provision does

not allow the trial court to grant a dismissal on its own motion. Williams v. Brooks,

96-1709 (La.App. 3 Cir. 4/30/97), 693 So.2d 302, writ denied, 97-1434 (La.

9/19/97), 701 So. 2d 175. A trial court may not dismiss an action on its own, as it

is not a party to the action. Dahan Novelties & Co., LLC v. Ohio Cas. Ins. Co., 10-

626 (La.App. 4 Cir. 10/20/10), 51 So.3d 129; Wooley v. AmCare Health Plans of

La., Inc., 06-1146, 06-1147, 06-1148, 06-1149, 06-1150, 06-1151, 06-1152, 06-

1153, 06-1154 (La.App. 1 Cir. 1/17/07), 952 So.2d 720.

The record on appeal does not reflect that any party moved for an

involuntary dismissal under La.Code Civ.P. art. 1672(B) prior to the trial court’s

decision. Accordingly, we find that the trial judge erred in granting an involuntary

dismissal where neither the plaintiff nor defendant moved for one. The trial

court’s rendition of judgment sua sponte was improper and must be reversed.

Furthermore, La.Code Civ.P. art. 1672(B) allows a party the right to move

for dismissal after the plaintiff has completed the presentation of his or her

evidence. “The clear wording of La. [Code Civ.P.] art. 1672(B) indicates that the

plaintiff must have completed the presentation of his evidence prior to the granting

of an involuntary dismissal, and the jurisprudence supports this interpretation.”

Taylor v. Tommie’s Gaming, 04-2254, p.5 (La. 5/24/05), 902 So.2d 380, 383.

“[B]efore the court may validly entertain the motion for involuntary dismissal, the

plaintiff must have presented her entire case.” Smith v. Knight, 39,781, p.9

(La.App. 2 Cir. 6/29/05), 907 So.2d 831, 837. The record before us indicates that

2 the trial court stopped Mr. Richard’s first witness, himself, in the middle of his

testimony and summarily ended the case by rendering its decision. Mr. Richard

did not get to conclude his own testimony, let alone rest his case or complete the

presentation of his evidence. While the trial court’s decision may ultimately prove

to be correct, granting an involuntary dismissal prior to the close of a plaintiff’s

evidence is another clear error on the part of the trial court requiring reversal.

For the above reasons, we reverse the trial court’s judgment dismissing Mr.

Richard’s motion and remand the matter for the receipt of further evidence, a

decision on proper and complete evidence, and/or upon a proper motion for

involuntary dismissal made by a party to the proceedings. Costs of this appeal are

hereby assessed against Mrs. Richard.

REVERSED AND REMANDED.