Petitto v. McMichael

588 So. 2d 1144, 1991 WL 226424
CourtLouisiana Court of Appeal
DecidedOctober 18, 1991
DocketCA 90 0695
StatusPublished
Cited by21 cases

This text of 588 So. 2d 1144 (Petitto v. McMichael) 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
Petitto v. McMichael, 588 So. 2d 1144, 1991 WL 226424 (La. Ct. App. 1991).

Opinion

588 So.2d 1144 (1991)

Frank PETITTO
v.
Robert McMICHAEL, et al.

No. CA 90 0695.

Court of Appeal of Louisiana, First Circuit.

October 18, 1991.
Writ Denied January 10, 1992.

*1145 Ernest Drake, Jr., Ponchatoula, for plaintiff-appellant.

Charles M. Hughes, Bogalusa, for defendant-appellee Robert McMichael and La. Farm Bureau.

Alton Lewis, Jr., Hammond, Charles M. Reid, Amite, for appellee, George Phillip McMichael, et al.

*1146 Before SHORTESS, LANIER and CRAIN, JJ.

LANIER, Judge.

This is a suit for damages in tort alleging that weed spraying on the defendants' property caused herbicide damage to the bell pepper crop on the plaintiff's property. Made defendants were (1) George McMichael, Jr., (2) Mary McMichael, (3) Louisiana Farm Bureau Mutual Insurance Company, George and Mary's insurer, (4) Robert McMichael, (5) State Farm Fire and Casualty Insurance Company, Robert's insurer, (6) George McMichael, III, and (7) Kathlyn Lea McMichael. Defendants denied liability. A trial by jury resulted in a verdict for the plaintiff of $50,984.00, plus legal interest and all costs. Pursuant to La.C.C.P. art. 1811, the defendants filed alternative motions for judgment notwithstanding the verdict (JNOV) and a new trial. The trial court rendered a JNOV in favor of the defendants and dismissed the plaintiff's demands. The trial court did not rule on the motions for a new trial. The plaintiff took a devolutive appeal. This court dismissed the appeal and remanded to the trial court for a ruling on the new trial motions in compliance with La.C.C.P. art. 1811(C). Petitto v. McMichael, 552 So.2d. 790 (La.App. 1st Cir.1989). On remand, the trial court granted the new trial motions. Thereafter, plaintiff took this devolutive appeal.

FACTS

George McMichael, Jr. owns a 32.44 acre tract of land; Robert W. McMichael owns a 49.58 acre parcel; Mary McMichael owns a 27.55 acre parcel; and the three own an additional 10 acre tract in indivision, for a total of 119.57 acres. This property is located south of the Town of Amite in Tangipahoa Parish. The McMichaels are siblings and pooled this land to operate a joint cattle venture. The plaintiff herein, Frank Petitto, owns the property which is contiguous to and north of the McMichael property. Petitto and the McMichaels share a common boundary 1,461.24 feet in length. During April of 1981, George McMichael, Jr., with the consent of Robert and Mary McMichael, sprayed a phenoxy herbicide known as 245-T LO-V-ESTER on their property. Shortly after the McMichael property was sprayed with the chemical, Petitto noticed extensive damage to his bell pepper crop. Because of the damage to his 1981 crop, Petitto only sold a small percentage of that year's harvest and suffered financial losses. He alleged his crop failure was caused by drifting fumes from the herbicide and asserted multiple theories of liability, including negligence, absolute liability for ultrahazardous activity, negligence per se and liability under La.C.C. art. 667.

ERRONEOUS REFUSAL TO GIVE JURY CHARGES

(Assignment of Error No. 2)

Plaintiff claims the trial court erred by refusing to charge the jury with his proposed twenty-eight jury charges. The record indicates that the plaintiff objected to the trial court's ruling immediately after the jury retired. The trial record reads as follows:

MR. DRAKE:
Let the record reflect that the jury has retired and pursuant to the Court's reservations of all attorneys [sic] rights to object to the Court's refusal to submit specific instructions, at this particular time, your Honor, I would like to formally place in the record my objection to the Court's ruling denying my request of twenty-eight certain instructions being twenty-six I filed with the Court on March 14, 1985, I believe I said, whatever is in the record and today submitted two further instructions number 27 and 28.
THE COURT:
All right.

Article 1793(C) of the Louisiana Code of Civil Procedure states:

A party may not assign as error the giving or failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. *1147 If he objects prior to the time the jury retires, he shall be given an opportunity to make the objection out of the hearing of the jury. (Emphasis added)

The foregoing codal provision is clear and unambiguous. It establishes a mandatory procedural rule for preserving an objection to denial of a requested jury charge for appellate review. The statute requires that the litigant must object to the refusal to give each special charge and state the grounds for each objection. In this instance, counsel made an objection to the trial court's refusal to give the special jury charges requested without assigning any reasons. This does not comply with the statute. Failure to do so forfeits the right to complain on appeal. Dawson v. Mazda Motors of America, Inc., 517 So.2d 283 (La.App. 1st Cir.1987); Lea v. Baumann Surgical Supplies Inc., 321 So.2d 844 (La. App. 1st Cir.1975), writ denied, 325 So.2d 279 (La.1976).

This court in Wilson v. Wilson, 542 So.2d 568, 574 (La.App. 1st Cir.1989), observed as follows:

Our jurisprudence has consistently held that an objection to the trial court's instructions to jurors, without assignment of any reasons whatsoever, does not comply with LSA-C.C.P. art. 1793.... To preserve his right to appeal an erroneous jury instruction, a litigant must enter in the record the specific matter to which the objection is made and the grounds therefor. (Citation omitted) The plaintiff did not properly preserve his right to object to the trial court's ruling. Consequently, the objections were waived.

This assignment of error is without merit.

VALIDITY OF JUDGMENT NOTWITHSTANDING THE VERDICT

(Assignment of Error No. 1)

Plaintiff contends that the trial judge erred in granting a JNOV. He asserts the jury was correct in holding defendants legally responsible for the damage to his bell pepper crop.

In his opinion granting the JNOV, the trial judge held as follows:

There was certainly no preponderance of evidence establishing negligence on the part of the defendant George McMichael.
. . . . .

There were no damages proven by a preponderance of the evidence.

A trial court may grant a JNOV only when the evidence points so strongly and overwhelmingly in favor of the moving party that reasonable men could not reach a contrary verdict. If there is substantial evidence opposed to the motion, i.e., evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion must be denied. In considering a motion for JNOV, the trial court must construe all evidence and reasonable inferences to be made therefrom in favor of the party opposing the motion. Further, the trial court may not weigh the evidence, pass on the credibility of witnesses or substitute its own judgment for that of the jury. A JNOV can be granted by a trial court only when a jury's verdict is one which reasonable men could not have rendered. The standard to be applied by appellate courts in reviewing a grant of JNOV is whether the trial court's findings in rendering the JNOV were manifestly erroneous. Hutchinson v.

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588 So. 2d 1144, 1991 WL 226424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petitto-v-mcmichael-lactapp-1991.