THUY TRAN, WIFE OF/AND * NO. 2020-CA-0246 THAI BUI; QUAN HOANG, ON BEHALF OF HIS MINOR * CHILDREN, BRANDON COURT OF APPEAL HOANG AND RYAN HOANG * FOURTH CIRCUIT VERSUS * STATE OF LOUISIANA KAREN COLLINS, ALLSTATE ******* INSURANCE COMPANY AND ORLEANS PARISH SCHOOL BOARD
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2005-09337, DIVISION “B-1” Honorable Rachael Johnson, ****** Judge Sandra Cabrina Jenkins ****** (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins)
Anh Joseph Cao Amy E. Schapansky CAO LAW FIRM 1440 Lapalco Blvd. Harvey, LA 70058 COUNSEL FOR PLAINTIFF/APPELLANT
John Karl Etter Esq., Roy J. Rodney, Jr. Esq., RODNEY & ETTER, LLC 365 Canal Street, Suite 2690 New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
AUGUST 20, 2021 SCJ JCL DNA Plaintiffs, Thuy Tran, Thai Bui, and Quang Hoang, on behalf of his minor
children, B.H. and R.H., (collectively “plaintiffs”) appeal the June 14, 2019
judgment granting defendants’ motion to strike plaintiffs’ witness and exhibit lists.
Plaintiffs also appeal the trial court’s subsequent February 5, 2020 judgment
granting Karen Collins’ and the Orleans Parish School Board’s (collectively
“defendants”) motion for summary judgment and dismissing all of plaintiffs’
claims with prejudice. For the following reasons, we affirm both judgments.
PROCEDURAL BACKGROUND1
This suit arises from a collision of plaintiffs’ vehicle with a school bus. On
July 12, 2005, plaintiffs filed their petition for damages, naming as defendants
Karen Collins, Orleans Parish School Board (“OPSB”), and Allstate Insurance
Company.2 Below is a timeline of relevant pleadings filed over the history of this
case:
September 29, 2010 Motion to set trial filed
1 The issue before the Court is purely procedural, therefore, the facts and circumstances of this case are not relevant. 2 On October 8, 2007, Allstate was dismissed without prejudice.
1 November 10, 2010 Trial Order and Case Management Order Entered
December 21, 2010 Plaintiffs filed witness list
January 11, 2011 Defendants filed witness list
April 8, 2011 Defendants filed a motion to continue trial
March 20, 2013 Substitution of plaintiffs’ counsel
October 9, 2013 Status conference held and pre-trial schedule entered
November 8, 2013 Defendants filed an additional witness and exhibit list
June 6, 2018 Status conference held and discovery schedule entered
July 20, 2018 Deadline for plaintiffs to submit list of witnesses, experts, and exhibits to defendants
On September 12, 2018, Ms. Collins and OPSB, filed a motion to strike
plaintiffs’ witnesses and exhibits, asserting that there had been minimal activity
and minimal discovery in the case. Defendants argued that plaintiffs’ counsel
failed to respond to defense counsel’s request for deposition dates for all of
plaintiffs’ fact witnesses as well as their expert witnesses. Plaintiffs did not file an
opposition to the motion to strike. On June 14, 2019, the trial court granted the
motion to strike plaintiffs’ witnesses and exhibits.
On August 5, 2019, defendants filed a motion for summary judgment
seeking dismissal of plaintiffs’ claims. Defendants argued that because plaintiffs
are prohibited from presenting testimony of witnesses and exhibits at trial, they are
entitled to summary judgment and dismissal of all of plaintiffs’ claims against
them. Plaintiffs filed an opposition to defendants’ motion for summary judgment,
2 arguing that the June 14, 2019 judgment does not prohibit plaintiffs from
presenting their own testimony at trial.
On February 5, 2020, the trial court held a hearing on the motion for
summary judgment. After hearing arguments, the trial court found that based on
the June 14, 2019 judgment granting the motion to strike witnesses and exhibits,
plaintiffs would not be able to satisfy their burden of proof on causation. Following
arguments, the trial court granted defendants’ motion for summary judgment and
dismissed plaintiffs’ claims with prejudice. This appeal follows.
STANDARD OF REVIEW
Appellate courts apply de novo review in examining a trial court’s ruling on
a motion for summary judgment, using the same criteria that govern the trial
court’s consideration of whether summary judgment is appropriate. Madison v.
Inter-Cont’l Hotels Corp., 2014-0717, p. 5 (La.App. 4 Cir. 8/26/15), 173 So.3d
1246, 1250. Accordingly, “[a]fter an opportunity for adequate discovery, a motion
for summary judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue as to material fact and
that the mover is entitled to judgment as a matter of law.” La. C.C.P. art.
966(A)(3). “In determining whether an issue is genuine, courts cannot consider the
merits, make credibility determinations, evaluate testimony, or weigh evidence.”
Lewis v. Jazz Casino Co., 2017-0935, p. 6 (La.App. 4 Cir. 4/26/18), 245 So.3d 68,
72 (citing Fiveash v. Pat O’Brien’s Bar, Inc., 2015-1230, p. 7 (La.App. 4 Cir.
9/14/16), 201 So.3d 912, 917).
Burden of Proof
La. C.C.P. art. 966(D)(1) governs the mover’s burden on a motion
for summary judgment:
3 The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
DISCUSSION On appeal, plaintiffs argue that the trial court erred, first, in granting
defendants’ motion to strike plaintiffs’ witness and exhibit lists and, subsequently,
in granting defendants’ motion for summary judgment.
Plaintiffs assert four assignments of error:
1) The district court erred in applying La. C.C.P. art. 1471(A)(2), (3), and (4) because plaintiffs’ attorneys did not disobey a pre-trial order as outlined in La. C.C.P. art 1551.
2) The district court erred in applying La. C.C.P. art 1471(A)(2), (3), and (4) based on misleading and false representations pled in defendants’ motions to strike.
3) The district court abused its discretion in granting defendants’ motions to strike.
4) The district court erred when it relied on an action at law, and not the absence of material fact, to grant the defendants’ Motion for Summary Judgment.
We begin our discussion by addressing defendants’ motion to strike
plaintiffs’ witness and exhibit lists.
Motion to Strike
Plaintiffs argue that the trial court abused its discretion in striking their
witness and exhibit lists. Plaintiffs further contend that the discovery schedule is
not a trial court order, but rather an agreement between the parties.
4 In opposition to plaintiffs’ arguments, defendants argue that the trial court
properly prohibited plaintiffs from introducing exhibits and expert and fact
witnesses because plaintiffs failed to comply with the discovery schedule and
failed to oppose defendants’ motion to strike, thereby failing to meet their burden
of showing compliance with the June 6, 2018 discovery schedule.
We review the trial court’s ruling on a motion to strike under an abuse of
discretion standard. In re Med. Review Panel of Williams v. EMSA La, Inc., 2015-
1178, p. 6 (La.App. 4 Cir. 10/21/16), 203 So.3d 419, 425. “A trial court is afforded
vast discretion with regard to evidentiary rulings, and the court’s decision to admit
or deny evidence will not be disturbed on appeal absent a clear abuse of that
discretion.” Knoten v. Westbrook, 2014-0892, p. 5 (La.App. 4 Cir. 5/18/16), 193
So.3d 380, 384-85 (citing Guillot v. Daimlerchrysler Corp., 2008-1485, p. 21
(La.App. 4 Cir. 9/24/10), 50 So.3d 173, 190). Further, we note that the abuse of
discretion standard is highly deferential to the trial court unless the court exercised
its discretion based upon an erroneous view of the law or a clearly erroneous view
of the facts. Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist
Church, 2014-0843, p. 2 (La.App. 4 Cir. 12/17/14), 156 So.3d 1234, 1237.
Pre-Trial and Scheduling Order
The Louisiana Code of Civil Procedure and local rules of the district court
govern pre-trial orders, scheduling conferences, and notice of hearing or trial.
Rouzan v. Rouzan, 2020-0240, p. 7 (La.App. 4 Cir. 9/30/20), ---So.3d----, 2020
WL 5819545 at *3. Particularly, La. C.C.P. art. 1551(C) directs that
[i]f a party’s attorney fails to obey a pretrial order, or to appear at the pretrial and scheduling conference, or is substantially unprepared to participate in the conference or fails to participate in good faith, the court, on its own motion or on the motion of a party, after hearing, may make such orders as are just, including
5 orders provided in Article 1471 (2), (3), and (4). In lieu of or in addition to any other sanction, the court may require the party or the attorney representing the party or both to pay the reasonable expenses incurred by noncompliance with this Paragraph, including attorney fees.
(Emphasis added.)
The Civil District Court of the Parish of Orleans, Local Rule 9.14 specifies
that at the discretion of the division judge, cases may be set for trial upon written
motion filed by counsel seeking such trial, and an alternative scheduling
procedure:
[A]fter the completion of a sufficient amount of discovery that allows the lawyers/parties to reasonably anticipate the length of the trial, any party may seek a status conference for the purpose of selecting a trial date appropriately in the future, as well as cut off dates for witness lists, expert reports, and discovery. At this status conference, a date for a pre-trial conference to occur shortly before trial may also be selected. The dates selected will be reduced to a scheduling order signed by the parties and the court.
June 6, 2018 Discovery Schedule
On June 6, 2018, the parties entered into a discovery schedule agreement.
The schedule set July 20, 2018, as the deadline for plaintiffs to file their fact and
expert witness lists and their list of exhibits, while defendants’ deadline to file
same was August 20, 2018. The record is void of plaintiffs’ compliance with the
June 6, 2018 discovery schedule. Plaintiffs’ failure to comply with the discovery
schedule triggered defendants to file their motion to strike.
Motions to strike are governed by La. C.C.P. art. 964, which states, “[t]he
court on motion of a party or on its own motion may at any time and after a
hearing order stricken from any pleading any insufficient demand or defense or
any redundant, immaterial, impertinent, or scandalous matter.” The defendants
entitled their pleading as a Motion to Strike, however, the context of their motion
6 was to prevent plaintiffs from the introduction and use of witnesses and exhibits at
trial because of plaintiff’s failure to comply with the discovery schedule.
Ultimately, defendants’ motion sought sanctions for plaintiffs’ failure to comply
with the discovery schedule.
“A motion to strike is a means of cleaning up the pleadings, not a means of
eliminating causes of actions or substantive allegations.” Hazelwood Farm, Inc. v.
Liberty Oil & Gas Corp., 2001-0345, pp. 7-8 (La.App. 3 Cir. 6/20/01), 790 So.2d
93, 98. A trial court may compel discovery and impose various sanctions for
failing to adhere to discovery rules because such failure may interfere with the
court’s ability to fairly administer justice. Cambrie Celeste LLC v. Starboard
Mgmt., LLC, 2016-1318, p. 11 (La.App. 4 Cir. 11/6/17), 231 So.3d 79, 85.
La. C.C.P. art. 1471 allows a trial court to sanction a party who fails to obey
an order to provide or permit discovery. Such sanctions include, refusing to allow
the disobedient party to support designated claims, striking out pleadings,
dismissing the action, or treating the failure to obey any order as a contempt of
court. S. Aggregates, LLC v. Baker, 2019-0986, p. 7 (La.App. 4 Cir. 4/8/20), 294
So.3d 1076, 1080-81. “A trial court is vested with inherent power to maintain
control of its docket and in case management.” Elysian, Inc. v. Neal Auction Co.,
2020-0674, p. 17 (La.App. 4 Cir. 7/21/21), ---So.3d----, 2021 WL 3163257 at *9
(quoting Gorbach v. Tulane Univ. Med. Ctr., 2011-1575, p. 4 (La.App. 4 Cir.
4/11/12), 89 So.3d 429, 432).
To strike a party’s pleading under La. C.C.P. art. 1551(C) and La. C.C.P. art.
1471(A)(2), (3), and (4) for disobeying pre-trial scheduling orders is considered a
“death penalty” sanction that “should seldom be imposed and should be reserved
for only the most flagrant case.” Quinn v. Palmer, 2019-1009, pp. 15-16 (La.App.
7 4 Cir. 3/25/20), 294 So.3d 541, 550 (quoting Benware v. Means, 1999-1410, p. 8
(La. 1/19/00), 752 So.2d 841, 846).
Quinn establishes the framework for analyzing the appropriateness of a
trial court’s sanction for a discovery violation. The Quinn court explained that
before imposing a sanction for violating scheduling order:
[T]he following four factors must be considered: “(i) whether the attorney, the client, or both committed the misconduct; (ii) the stage of the proceeding at which the violation occurred; (iii) the presence or absence of prejudice to the opposing party’s preparation of the case; and (iv) the nature and persistency of the misconduct that constitutes the violation.” Winding v. Bryan, 2014-0388, pp. 9-10 (La. App. 4 Cir. 9/17/14), 148 So.3d 956, 961-62 (citing Benware, 1999- 1410 at pp. 9-10, 752 So.2d at 847).
Quinn, 2019-1009, p. 16, 294 So.3d at 550.
The first factor considers who committed the misconduct. Here, the record
reflects that plaintiffs’ counsel violated the discovery schedule, as both parties’
counsel agreed to the schedule. The record further reflects that defense counsel
emailed plaintiffs’ counsel inquiring about the expert and exhibit lists to which
plaintiffs’ failed to comply with the request. The record does not reflect that
plaintiffs were aware of the violation.
The second factor considers the stage of the proceeding at which the
violation occurred. This matter commenced in 2005, with an initial trial date of
May 11, 2011. On April 8, 2011, the trial was continued at the request of
defendants. This matter has lingered for thirteen years without completion of
discovery or a trial date since 2011.
The third factor considers the prejudice that the violation has caused the
other party. A trial court should consider whether the action results in prejudice to
the opposing party’s trial preparations. Show & Tell of New Orleans, L.L.C., 2014-
8 0843, p. 9, 156 So.3d at 1240. The record includes email correspondence, in
which plaintiffs’ counsel requested a two-week extension to file their exhibit list
and additional witness list on July 20, 2018, and defense counsel agreed to the
extension. Thereafter, defense counsel sent correspondence to plaintiffs’ counsel
on August 20, 2018 and September 7, 2018, informing plaintiffs’ counsel that they
did not receive plaintiffs’ witness and exhibit lists. The purpose of a scheduling
order is to hasten the matter to trial and judgment. Hutchison v. Seariver Mar.,
Inc., 2009-0410, p. 10 (La.App. 1 Cir. 9/11/09), 22 So.3d 989, 996. We find that
the mere fact the plaintiffs have not successfully prosecuted and brought this case
to a resolution in thirteen years is prejudicial to all parties.
The final factor considers the nature and persistency of the misconduct that
constitutes the violation. We note that defendants did not file a motion to compel
discovery and the plaintiffs were not ordered to appear before the trial court to
address their failure to comply with the discovery schedule. However, defense
counsel agreed to plaintiffs’ extension to submit the witness and exhibit lists. The
record is void of any correspondence from plaintiffs’ counsel in response to
defense counsel’s inquiries about the witness and exhibit lists. In consideration of
the length of delays in this case and plaintiffs’ counsel’s continued failure to file
timely pleadings or respond to correspondence, we find a persistent violation of the
discovery schedule and that the trial court acted within its discretion by granting
defendants’ motion and prohibiting plaintiffs from filing untimely witness and
exhibit lists.
November 10, 2010 Trial Order
Next, plaintiffs argue that they previously complied with discovery by filing
their witness list on December 21, 2010. The plaintiffs further contend that the
9 2018 discovery schedule is not an order, therefore La. C.C.P. art. 1471 is not
applicable in this instance.
The record establishes that plaintiffs filed a witness list on December 21,
2010, in an attempt to comply with the November 10, 2010 trial order. The trial
order, however, required the plaintiffs’ witness list to be filed on or before
December 10, 2010. Plaintiffs witness list was eleven days delinquent. At no time
during the contradictory hearing on defendants’ motion to strike did plaintiffs raise
the issue that their witness list was filed eight years prior to the hearing nor did the
plaintiffs file an opposition to defendants’ motion to strike establishing that a
witness list had previously been filed in this matter. Plaintiffs are raising this
argument for the first time on appeal.
“Pursuant to Rule 1-3, Uniform Rules-Courts of Appeal, issues not raised in
the district court will not be given consideration for the first time on appeal.” Mule
v. St. Bernard Par. Fire Dep’t, 2018-0507, p. 5 (La.App. 4 Cir. 11/21/18), 259
So.3d 452, 454 (quoting Guillory v. City of New Orleans, 2016-0638, p. 7 (La.App.
4 Cir. 8/2/17), 224 So.3d 1035, 1040) (footnote omitted)). Plaintiffs’ assignment
of error is precluded from consideration.
We find no error in the trial court’s June 14, 2019 judgment. The trial court
acted within its vast discretion with regard to making this evidentiary ruling to
grant defendants’ motion to strike and prohibit plaintiffs from filing untimely
witness and exhibit lists. Accordingly, we affirm the June 14, 2019 judgment
sustaining defendants’ request to strike plaintiffs’ witness list, expert witness list
and any exhibits.
Motion for Summary Judgment
10 The final issue we address is the trial court’s February 5, 2020 judgment
granting summary judgment in favor of defendants.
Summary judgment procedure is designed to secure the just, speedy and
inexpensive determination of every action, except those disallowed by law; the
procedure is favored and must be construed to accomplish these ends. La. C.C.P.
art. 966(A)(2); Simmons v. State, 2018-0174, p. 3 (La.App. 4 Cir. 8/29/18), 255
So.3d 701, 703-04. As a matter of law, we review de novo defendants’ motion for
summary judgment.
The primary focus of defendants’ motion for summary judgment was that
plaintiffs would not be able to establish liability under La. C.C. art. 2315.
Defendants argue that because plaintiffs’ witness and exhibits lists were stricken
from the record, there is an absence of factual support for essential elements of
plaintiffs’ claims against defendants. See La. C.C.P. art. 966(D)(1).
Plaintiffs filed an opposition to the motion for summary judgment; however,
it was filed one day prior to the hearing. Pursuant to La. C.C.P. art. 966(B)(2),
plaintiffs were required to file their opposition not less than fifteen days prior to
the hearing of the motion for summary judgment. “The time limitation established
by La. C.C.P. art. 966(B) for the serving of affidavits in opposition to a motion for
summary judgment is mandatory; affidavits not timely filed can be ruled
inadmissible and properly excluded by the trial court.” Buggage v. Volks
Constructors, 2006-0175, p. 1 (La. 5/5/06), 928 So.2d 536, 536.
Prior to the February 5, 2020 hearing, the trial court noted that it did not
read plaintiffs’ opposition because the opposition was filed late. The trial court
elaborated, “I’ll let you argue but . . . I don’t have anything regarding the
opposition.” We find no error in the trial court’s refusal to consider the plaintiffs’
11 untimely filed opposition. See La. C.C.P. art. 966(B)(2); Buggage, 2006-0175, p. 1,
928 So.2d at 536.
After a hearing on defendants’ motion for summary judgment, the trial court
granted the Motion for Summary Judgment finding:
[W]e had a hearing on June 14th and I signed the judgment on June 14th granting the Motion to Strike plaintiff[s’] expert witnesses, fact witnesses, plaintiff[s’] exhibits and also there can be no fact witnesses at trial nor any expert testimony at trial. . . so based on that I am going to grant the Motion for Summary Judgment.
Given the procedural posture before us and the trial court’s vast discretion to
properly exclude evidence under the facts of this case, we find no error in the trial
court’s grant of the motion for summary judgment in favor of the defendants.
CONCLUSION
For the reasons assigned, we affirm the June 14, 2019 judgment granting
defendants’ motion to strike. The February 5, 2020 judgment granting defendant’s
motion for summary judgment and dismissing plaintiffs’ claims with prejudice is
also affirmed.