Sonnier v. Liberty Mutual Insurance Company

248 So. 2d 299, 258 La. 813, 1971 La. LEXIS 4382

• Court: Supreme Court of Louisiana
• Decided: May 4, 1971
• Docket: 50803
• Status: Published

Opinions

DIXON, Justice.

Writ of certiorari was granted in this case on the application of plaintiff, who complained of the trial judge’s overruling a motion for new trial summarily and without argument.

Plaintiff’s damage suit was tried by a jury which rendered a verdict in favor of defendants. Judgment was signed April 23, 1970. Motion for a new trial was filed on April 28, 1970. There was an order attached to the motion which was not completed and not signed by the district judge-Typed below this order was the following:

“The foregoing application presents nothing new for consideration and therefore a contradictory hearing is not warranted and the above application is accordingly summarily denied.

“Officially at St. Martinville, St. Martin Parish, Louisiana, this 30th day of April, 1970.

s/ E. L. Guidry, Jr.

DISTRICT JUDGE”

Judge Guidry’s office is at St. Martin-ville; he had presided at the jury trial of this case in Lafayette by special assignment. The clerk’s stamp shows that his order refusing the new trial was filed in Lafayette on May 1.

Plaintiff applied for supervisory writs to' the Court of Appeal, Third Circuit on May 27, 1970. Writs were granted, and subsequently recalled by the Court of Appeal. Sonnier v. Liberty Mutual Insurance Co. et al., La.App., 237 So.2d 699.

Plaintiff complains of two errors: (1) the Court of Appeal erred in affirming the trial court’s overruling a motion for new trial without granting the mover a hearing; (2) constitutional due process required a contradictory hearing on application for new trial.

There is no authority cited by the plaintiff which remotely supports his contention that constitutional due process requires a contradictory hearing on a motion for new trial. No useful purpose would be served in analyzing and distinguishing the federal cases cited by plaintiff. The provisions in the Code of .Civil Procedure concexming applications for new trial are found in C.C.P. 1971 and following. The federal courts have not interpreted the Louisiana statutory provisions. The “due process” clause certainly does not contemplate that every step in a civil trial be accompanied by a contradictory hearing between the parties affected.

An analysis of the codal provisions for a new trial should begin with noting that a new trial may be granted by the court on its own motion:

“A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.” (Emphasis added). C.C.P. 1971.

The power of the court to grant a new trial on its own motion was discussed in State ex rel. Shreveport Cotton Oil Co. v. Blackman, 110 La. 266, 34 So. 438 (1903):

“So far as granting the new trial was concerned, that might have been done, within the legal delays, by the Judge ex proprio motu. He has, within such delays, such control of the judgment that, if satisfied of an error committed, he may, with or without a formal motion for new trial having been filed by the party cast, direct the judgment he has rendered set aside and a new trial ordered. Gale v. Kemper’s Heirs, 10 La. [205] 209; State v. Judge, 8 La.Ann. [92], 93; Underwood v. Lacapere, 10 La.Ann. 766; Culverhouse v. Marx, 38 La.Ann. 667; Code Prac. art. 547, par. 3.”

It is true that no provision of the Code of Civil Procedure specifically allows the court to deny a motion for a new trial without a contradictory hearing. Article 1972 provides cases in which a new trial shall be granted “upon contradictory motion.” Article 1976 indicates that it is contemplated that a motion for a new trial fix a time and place for hearing, notice of which “must be served upon the opposing party as provided by Article 1314.”

C.C.P. 963 provides as follows:

“If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing of the advex'se party. “If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried. contradictorily with the adverse party. '

“The rule to show cause is a contradictory motion.”

There is no doubt but that the former provisions of the Code of Practice of 1870 contemplated summary decisions on motions for new trial. Article 563 of the Code of Practice of 1870 provided: “the court shall decide summarily on such applications * *

The comment under C.C.P. 1979 states:

“(a) Art. 563 of the 1870 Code provides for a summary decision on applications for new 'trials: while former R.S. 13 :- 4207 fixes the maximum delays for such decisions. This article represents a consolidation of the two source provisions.”

Comment (c) under C.C.P. 1976 indicates that the redactors of the Code of Civil Procedure, since they said “the practice has been to apply for new trials by rule,” were under the misapprehension that such practice was general throughout the State. In some districts, motions for a new trial were treated like exceptions and were automatically placed on the calendar for argument on the next argument day.

Courtin v. Browne, 151 La. 741, 92 So. 320, involved a summary denial of a motion for a new trial, decided in 1922. One of the parties to a child custody case filed a motion for a new trial after hearing on a rule for temporary custody of a minor child pending the trial of the main demand. Although the judgment complained of was described as an “interlocutory judgment,” this aspect of the case was not discussed in the court’s opinion, and apparently played no part in the decision of the court. The Supreme Court adopted the opinion of the trial court, which justified its summary denial of the motion for new trial as follows:

“ ‘Under the rules of the civil district court, which are the law in this instance, section 6 of rule 9 reads :

“ ‘Motions for new trial shall be submitted by the movers on briefs, and, should the court desire oral argument, it will so order; otherwise, the court will dispose of the motions on the briefs of the movers.’

“ ‘Of course, the meaning of the briefs is that the court will have briefs, if the court desires; but in cases where the court is of opinion that there is no merit whatsoever in the application for a new trial, it is, and has been for years, the practice of the court to overrule the motion instanter.

“ ‘In the present case the court considered the new evidence immaterial, absurd, and fantastic, and, had the matter alleged herein above quoted been proven on the trial of the rule, it would have had no effect whatever on the mind of the court, and would not have changed the result.’ ”

: Since the trial judge is specifically given the power to grant a new trial on his own motion, and since the prior jurisprudence has approved the summary denial of a motion for a new trial, and since the comments of the redactors of the Code of Civil Procedure under C.C.P. 1979 purported to represent a consolidation of the provisions of article 563 of the Code of Practice of 1870 and R.S. 13:4207,¹ there is no clear indication that the Code of Civil Procedure intended to change the prior law, under which a trial judge would have the power to decide a motion for summary judgment without fixing the motion for a contradictory hearing.

Allegations might be made in a motion for a new trial which the Code of Civil Procedure would clearly require to be fixed for a contradictory hearing. Such allegations have not been made in the case before us. In the motion filed by plaintiff he alleges that:

“1. The judgment of the court is clearly contrary to the law and the evidence in this case.

“2. The court committed prejudicial error in failing to give the instructions requested by the movant herein as to which reservation of objection was made.

“3. The jury failed to carry out the instructions as to the law given to the jury by the court.

“4. On voir dire examination ' some of the jurors selected for jury service in connection with the trial of this matter failed to make an adequate, fair and full disclosure on voir dire examination, which denied to your movant the intelligent exercise of his peremptory challenges and of his right to challenge for cause and resulted in the composition of a jury that otherwise would not have resulted absent such a failure.

“5. The court committed prejudicial error in curtailing argument proffered by movant’s counsel during his summation to the jury after all the evidence had been received.”

The bare allegation that the judgment was clearly Contrary to the law and the evidence certainly presents nothing new to the judge who tried the case, heard the evidence and listened to the arguments presented to the jury. Nor can it be said that paragraph 2 in the motion for a new trial was one that might require contradictory proceedings. The judge to whom the motion was addressed was the same judge who received the jury instructions requested by the plaintiff and made the decision to give or not to give the requested instructions. Neither does the fifth paragraph in 'the motion for a new trial present the possibility that a contradictory motion might develop grounds for the trial judge to change his mind about his rulings concerning the argument of plaintiff’s lawyer in the summation to the jury.

Paragraphs 3 and 4 of the motion for a new trial complain about the jury. It is only by the most strained construction that one could say these allegations complained of jury misconduct.² Paragraph 3 of that motion, fairly construed, simply says that, in the opinion of the plaintiff, the jury would have brought in a different verdict if it had carried out the instructions given to it by the court (a somewhat contradictory conclusion from that to be drawn from the second paragraph of the motion for a new trial, in which the plaintiff is understood to complain that the jury would have brought in a different verdict if it had been instructed differently).

Paragraph 4 of the motion for a new trial complains in general terms of the failure of some of the jurors to make some kind of “fair and full disclosure” on voir dire examinations. This allegation, as well as that in paragraph 3, is a vague sort of complaint. There is no allegation that any juror answered any question untruthfully. A fair reading of paragraph 4 gives no hint of what it was the jurors failed to disclose. The complaint seems to be that, if the plaintiff’s counsel had asked the right questions, he might have peremptorily challenged jurors which he accepted, and his case would have been tried by a different jury.

Neither paragraph 3 nor 4 can be construed to complain of improper jury behavior, as now argued by the plaintiff. Paragraph 4 of the motion for a new trial presents nothing on which a contradictory hearing could have been held.

Plaintiff’s motion for a new trial was not “verified by the affidavit of the applicant” as required in C.C.P. 1975, when the motion was based on jury misconduct. This is further evidence that plaintiff did not intend to allege jury misconduct in his motion for a new trial, but now urges it as an afterthought.

Finally, the procedure followed by the trial judge is far more efficient than that urged by plaintiff. To require the court and lawyers to use up otherwise productive hours away from the office or away from other pressing litigation to rehash a trial recently conducted to a conclusion, in the absence of a clear showing in the motion of facts or law reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial, would be to compound unnecessarily delays which already plague the administration of justice.

The judgment of the Court of Appeal is affirmed at plaintiff’s cost.

SANDERS, J., dissents for the reasons assigned by SUMMERS, J. BARHAM, J., dissents.

1 . R.S. 13:4207 provides a maximum time tlie court is. given to decide a motion for now trial.

2 C.C.P. 1814. “A new trial shall be granted if it be proved that the jury was bribed or has behaved improperly so that impartial justice has not been done.”