Sons v. Delaune

634 So. 2d 1212, 1994 WL 96455
CourtLouisiana Court of Appeal
DecidedFebruary 23, 1994
Docket92 CA 1135
StatusPublished
Cited by4 cases

This text of 634 So. 2d 1212 (Sons v. Delaune) 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
Sons v. Delaune, 634 So. 2d 1212, 1994 WL 96455 (La. Ct. App. 1994).

Opinion

634 So.2d 1212 (1993)

Edward M. SONS
v.
Murphy L. DELAUNE, Jr., and Prudential Property & Casualty Insurance Company.

No. 92 CA 1135.

Court of Appeal of Louisiana, First Circuit.

November 12, 1993.
Opinion Amending Decision on Denial of Rehearing February 23, 1994.
Writ Denied May 6, 1994.

*1214 John H. Wells, New Orleans, for plaintiff and appellant Edward M. Sons.

McNeil J. Kemmerly, Metairie, for defendant and appellee Murphy L. Delaune, Jr. and Prudential.

Before CARTER, LeBLANC and PITCHER, JJ.

PITCHER, Judge.

Edward M. Sons (plaintiff), filed this tort action against defendants, Murphy L. Delaune, Jr. (Delaune) and Prudential Property & Casualty Insurance Company (PRUPAC), Delaune's liability insurer, seeking to recover damages he sustained as a result of an automobile accident. The trial court entered judgment on the jury verdict, which awarded only special damages to plaintiff and apportioned fault equally between the plaintiff and Delaune. On timely motion of defendants, the trial court subsequently granted a Judgment Notwithstanding the Verdict and awarded plaintiff general damages. From this judgment, plaintiff appeals. We affirm.

FACTS

On August 20, 1989, plaintiff and Delaune were driving their vehicles in opposite directions on Louisiana Highway 660 in Terrebonne Parish. At the intersection of Highways 659 and 660, the two vehicles collided when Delaune attempted to turn left onto Louisiana Highway 659. As a result of the collision, plaintiff suffered a 2-3mm rupture of the disc at the level of C6-7 in his cervical spine and aggravated a pre-existing lower back injury.

During the discovery phase of the case, defendants filed a Motion to Dismiss because plaintiff refused to submit to an independent medical exam. Plaintiff alleges that at the hearing on this motion, the trial judge, the Honorable Edward J. Gaidry, expressed dislike for him, which prompted plaintiff's counsel to file a Motion to Recuse. The trial court dismissed both motions, and the matter was tried before a jury on March 13 and 14, 1991.

The jury found both parties equally negligent in causing the accident and apportioned fault accordingly. It awarded plaintiff special damages, but no general damages. The trial court assessed all costs of the proceeding against the defendants and signed the judgment on March 21, 1991.

On April 11, 1991, defendants timely filed a Motion to Amend Judgment and Motion for Judgment Notwithstanding the Verdict (JNOV). On April 15, 1991, plaintiff filed a Petition and Order for Appeal, which the trial court granted on April 17, 1991. As a result of its having signed plaintiff's appeal order, the trial court later ruled that it was divested of jurisdiction to hear defendants' motion for JNOV. However, this court subsequently dismissed that appeal because the trial court had not yet acted upon the defendants' timely post-judgment motions. Following the hearing on the defendants' post-judgment motions, the trial court awarded plaintiff general damages and reallocated costs to assess 50% of the costs against plaintiff. Plaintiff thereafter appealed the judgment of the trial court and submitted the following assignments of error for review:

1.
The trial court erred in denying plaintiff's Motion to Recuse and in permitting the trial court to assess damages and to rule on defendants' Motion for Judgment Notwithstanding the Verdict.
2.
The trial judge erred in not allowing plaintiff to submit his jury charges because his *1215 jury charges were timely filed with the Clerk of Court but not with the judge's office.
3.
The jury clearly erred in its assessment of the percentage of fault and in not awarding general damages to plaintiff, Edward Michael Sons.
4.
The trial judge erred in his assessment of damages, percentage of fault, and allocation of costs.

ASSIGNMENT OF ERROR NUMBER ONE

In this first assignment of error, plaintiff contends that the trial court erred when it denied his Motion to Recuse and permitted the trial court to assess damages and to rule on defendants' motion for JNOV. Plaintiff further contends that although the trial on the merits was a jury trial, the hearing on the motion to amend the judgment and motion for JNOV was a bench trial before Judge Gaidry, and, as the trier of fact, he assessed damages and reallocated costs based on percentages of fault. He argues that Judge Gaidry should have recused himself in the matter because he had exhibited prejudice towards plaintiff prior to trial.

LSA-C.C.P. art. 151 sets forth the grounds for the recusation of judges. The article provides in pertinent part:

B. A judge of any court, trial or appellate, may be recused when he
* * * * * *
(5) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties' attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.

A judge may also recuse himself, whether a motion for his recusation has been filed by a party or not, in any cause in which a ground for recusation exists. LSA-C.C.P. art. 152(A).

During discovery, defendants filed a motion to dismiss plaintiff's action because he failed to voluntarily submit to an independent medical examination. The trial court subsequently denied the motion. After the court's ruling, defendants' counsel requested a sidebar conference. It was during this conference that the alleged grounds arose which prompted plaintiff's counsel to seek the recusal of Judge Gaidry in the instant matter. Apparently, although he had been subpoenaed by the defendants, plaintiff failed to appear and testify at the hearing that morning. Plaintiff alleges that while defendants' counsel was attempting to explain why the plaintiff had been subpoenaed, Judge Gaidry looked at plaintiff's counsel and said, "I do not like Mr. Sons." Thereafter, on February 15, 1991, plaintiff's counsel filed a motion to recuse Judge Gaidry on the grounds that the statement, "I do not like Mr. Sons", exhibited the trial judge's bias against plaintiff, and that plaintiff believed the trial judge would be unable to conduct fair and impartial proceedings in the matter.

On February 21, 1991, a hearing was held on the motion to recuse before Judge Paul R. Wimbish. Plaintiff's counsel testified that when he tried to respond to Judge Gaidry's statement of dislike for plaintiff, Judge Gaidry said, "No"; and when he again attempted to respond, Judge Gaidry said, "Don't you know what no means?". Counsel further testified that, since Judge Gaidry would not allow him to respond, he was forced to seek his recusal because counsel believed, at that point, that Judge Gaidry was biased or exhibited bias against his client.

In responding to plaintiff's allegations, Judge Gaidry testified as follows:

With regard to Mr. Wells' comments, I have no independent recollection of saying I didn't like Mr. Sons. I do not know Mr. Sons.... I surely know nothing personally about the man. On the day that Mr. Wells alleges that I said I did not like the guy it's quite possible I said something to that affect [sic] because I believe Defendant was asking for a dismissal of the suit based on his failure to appear at seven or eight independent medical examinations.

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Cite This Page — Counsel Stack

Bluebook (online)
634 So. 2d 1212, 1994 WL 96455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sons-v-delaune-lactapp-1994.