94 1758 La.App. 1 Cir. 5/5/95, Rhodes v. State Through Dept. of Transp. and Development

• Decision Date: 05 May 1995
• Citation: 656 So.2d 650
• Parties: 94 1758 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 650

656 So.2d 650

94 1758 La.App. 1 Cir. 5/5/95

Daniel L. RHODES and Judy Dupre Rhodes, individually and on Behalf of their minor daughter, Michelle Rhodes v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, and State of Louisiana, Through the Department of Public Safety and Corrections.

No. 94 CA 1758.

Court of Appeal of Louisiana First Circuit.

May 5, 1995.

Order Correcting Decision on Limited

Grant of Rehearing June 21, 1995.

Michael J. Samanie, Houma, for plaintiffs/1st appellants-Daniel Rhodes and Judy Dupre Rhodes, et al.

William Dodd, Houma, for defendant/appellee-Louisiana Dept. of Transp. & Development, et al.

Jerri Smitko, Houma, for plaintiffs/1st appellants-Linda & Bob Watson.

Michael Gee, Thibodaux, for intervenor/2nd appellant-Louisiana Farm Bureau Cas. Ins. Co.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

[94 1758 La.App. 1 Cir. 2] CARTER, Judge.

This is an appeal from a trial court judgment in a consolidated action arising out of an automobile accident.

FACTS

On or about April 16, 1991, Linda Watson was traveling north on Louisiana Highway 24 (also known as West Park Avenue) towards the intersection with Oakshire Drive in Houma, Louisiana. At about the same time, Ron Underdonk was traveling west on Oakshire Drive toward the intersection with Louisiana Highway 24. At the time, Underdonk was operating an automobile owned by Daniel Rhodes. Michelle Rhodes was a guest passenger in the Rhodes automobile.

The intersection of Louisiana Highway 24 and Oakshire was controlled by a semaphore traffic control signal. As Underdonk approached the intersection of Louisiana Highway 24 and Oakshire Drive, the westbound lane of Oakshire was controlled by a green traffic light, and the traffic signal for the northbound lane of Louisiana Highway 24 was also green. As Underdonk entered the intersection, the vehicle he was operating was struck by the vehicle operated by Watson. As a result of this collision, Michelle Rhodes and Linda Watson sustained injuries.

On July 12, 1991, Daniel and Judy Rhodes filed an action for damages ¹ against the State of Louisiana, through the Department of Transportation and Development (DOTD) and the State of Louisiana, through the Department of Public Safety and Corrections (DPS). The Rhodes alleged that DOTD was negligent in failing to properly inspect and maintain the traffic control signal, in failing to utilize procedures to assure the proper functioning of the traffic control signal, and in failing to warn of the known hazard. The Rhodes also alleged that DPS was negligent in failing to report the malfunctioning traffic control signal and in failing to promptly respond upon receipt of a [94 1758 La.App. 1 Cir. 3] report of the malfunctioning of the traffic signal. The Rhodes also alleged that DOTD was strictly liable for the defective condition of the traffic control signal.

On July 25, 1991, Linda and Bob Watson filed an action for damages against DOTD and DPS, alleging that they were negligent with regard to the inspection and maintenance of the traffic control signal and in failing to warn and report the malfunctioning traffic control signal, respectively. The Watsons also alleged that DOTD was strictly liable for the defective condition of the traffic control signal.

By motions and orders, dated August 20, 1991, and September 13, 1991, respectively, the two matters were consolidated for trial.

DOTD and DPS answered the petitions, denying the allegations of each petition and alleging that Watson was negligent and that her negligence was a cause in fact of the damages.

By petition, filed May 15, 1992, Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau), automobile liability insurer of the Rhodes vehicle, intervened in the proceedings, naming as defendants DOTD, DPS, and the Rhodes. Farm Bureau alleged that it made payments under the medical payments coverage of its policy on behalf of Michelle Rhodes and was legally and conventionally subrogated to any rights the Rhodes may have with regard to those items of damage.

After a trial on the merits, the trial court determined that, although DOTD was negligent with regard to its maintenance and care of traffic signals, Rhodes and Watson were unable to overcome the burden placed on them by LSA-R.S. 9:2800. Accordingly, the trial court rendered judgment, on March 4, 1994, in favor of DOTD and DPS, dismissing the suits of the Rhodes and the Watsons at their costs.

Thereafter, on March 16, 1994, the Rhodes filed a motion for leave of court to file an amended petition for damages. Attached to its motion was the amended petition. In their amended petition, the Rhodes alleged that LSA-R.S. 9:2800 is unconstitutional. On March 22, 1994, the Rhodes filed a motion for new trial on the basis that LSA-R.S. 9:2800 is unconstitutional. Thereafter, the Watsons and Farm Bureau also filed a motion for leave of court to file an amended petition of intervention and a motion [94 1758 La.App. 1 Cir. 4] for new trial, alleging the same grounds as were set forth in the Rhodes' motions and amended petition.

After a hearing, the trial court denied the motions for leave of court to file amended pleadings and denied the motions for new trial. In denying the motions to amend, the trial court stated that the pleadings could not be amended after judgment was rendered. In denying the motions for new trial, the trial court stated that the constitutionality of LSA-R.S. 9:2800 could be argued to the appellate court.

From these adverse judgments, the Rhodes, the Watsons, and Farm Bureau appeal, assigning the following errors:

1. The trial court erred in finding that the Department of Transportation and Development was negligent, but that plaintiffs had failed to overcome the burdens of Louisiana Revised Statute 9:2800.

2. The trial court erred in failing to find that the Department of Transportation and Development was strictly liable.

3. The trial court erred in failing to find that the Department of Public Safety and Corrections was negligent.

4. The trial court erred in failing to grant a new trial.

5. The trial court erred in failing to find Louisiana Revised Statute 9:2800 unconstitutional.

AMENDMENT OF PLEADINGS

LSA-C.C.P. art. 1151 provides, in pertinent part, as follows:

A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.

The general rule regarding amendments after an answer is filed is that the trial judge has much discretion in such matters, and his ruling will not be disturbed, except where a manifest abuse of discretion has occurred and indicates a possibility of resulting injustice. Jeffries v. Estate of Pruitt, 598 So.2d 379, 386 (La.App. 1st Cir.), [94 1758 La.App. 1 Cir. 5] writs denied, 599 So.2d 306 and 605 So.2d 1124 (La.1992); First Guaranty Bank v. Pineywood Partnership, 569 So.2d 209, 213 (La.App. 1st Cir.1990). Moreover, the right of a party to substantially amend his pleadings during trial is also a matter within the sound discretion of the trial court. LSA-C.C.P. art. 1151; Friday v. Mutz, 483 So.2d 1269, 1271 (La.App. 4th Cir.1986).

However, when the case has been tried and judgment has been rendered, there is no longer a pending petition to be amended. Booth v. Allstate Insurance Company, 466 So.2d 703, 705 (La.App. 4th Cir.1985). As the court noted in Booth, LSA-C.C.P. art. 1151 cannot be construed to authorize the filing of an amendment to a petition which has been fully disposed of by the court with a final judgment. The only remedies available at this stage of the proceedings are to apply for a new trial or to take an appeal. Loupe v. Circle, Inc., 545 So.2d 694, 695 (La.App. 5th Cir.1989); Booth v. Allstate Insurance Company, 466 So.2d at 705.

In Templet v. Johns, 417 So.2d 433, 435-36 (La.App. 1st Cir.), writ denied, 420 So.2d 981 (La.1982), the court stated:

After rendition of final judgment, the Code of Civil Procedure clearly spells out the rights of the appellants. They may either apply for new trial or appeal from an adverse judgment. No where in the Code is the amendment of a dismissed petition after final judgment allowed....

* * * * * * The La.Code Civ.P. provides that the only rights available to a party whose suit has been dismissed is to request a new trial or to appeal. It is abundantly clear that a trial court can not change or alter this by improvidently signing an order to allow the filing of a supplemental and amending petition.

In the instant case, after the trial of the merits was concluded and the trial judge had rendered and signed the judgment, the Rhodes, the Watsons, and Farm Bureau filed motions for leave of court to amend their pleadings to raise the issue of the constitutionality of LSA-R.S. 9:2800. At this stage of the proceedings, the pleadings could not be amended, and the trial judge did not err in refusing to grant the parties leave of court to file an amended petition.

[94 1758 La.App. 1 Cir. 6] DENIAL OF NEW TRIAL

LSA-C.C.P. art. 1972 provides as follows:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:

(1) When the verdict or judgment appears clearly contrary to the law and the evidence.

(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.

(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

In addition to the above, a discretionary ground for a new trial is set forth in LSA-C.C.P. art. 1973, which authorizes a trial court to grant a new trial in...