Hernandez v. State Dotd

• Decision Date: 16 October 2002
• Docket Number: No. 2002-CA-0162.,No. 2002-CA-0163.,2002-CA-0162.,2002-CA-0163.
• Parties: Vickie HERNANDEZ v. STATE of Louisiana, THROUGH the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. Jude E. Bailey and Arthur Bailey v. State of Louisiana, Through the Department of Transportation and Development.
• Court: Court of Appeal of Louisiana — District of US

Page 808

841 So.2d 808

Vickie HERNANDEZ v. STATE of Louisiana, THROUGH the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.

Jude E. Bailey and Arthur Bailey v. State of Louisiana, Through the Department of Transportation and Development.

No. 2002-CA-0162.

No. 2002-CA-0163.

Court of Appeal of Louisiana, Fourth Circuit.

October 16, 2002.

Order on Rehearing Dec. 30, 2002. Writ Denied April 25, 2003.

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Glenn E. Diaz, Carlos Zelaya, Chalmette, LA, for Plaintiff/Appellee, Vickie Hernandez.

Eric A. Bopp, Walter R. Woodruff, Arabi, LA, for Plaintiffs/Appellees, Jude and Arthur Bailey.

Anthony J. Angelette, Jr., Berrigan, Litchfield, Schonekas, Mann, Traina & Thompson, Metarie, for Defendant/Appellant, State of Louisiana, Through the Department of Transportation and Development.

Glenn E. Diaz, Carlos Zelaya, David C. Vidrine, Chalmette, Robert J. Klees, Of Counsel, Mereaux, for Plaintiff/Appellee, Vickie Hernandez on rehearing.

Eric A. Bopp, Walter R. Woodruff, Edward S. Bopp-Law Corporation, Arabi, for Plaintiffs/Appellees, Jude and Arthur Bailey on rehearing.

Richard P. Ieyoub, Attorney General, Anthony J. Angelette, Jr., E. John Litchfield, Special Assistant Attorney General, Metairie, Counsel for Defendant/Appellant, State of Louisiana, through the Department of Transportation and Development on rehearing.

(Court composed of Judge JOAN BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN, Judge MAX N. TOBIAS, JR.).

STEVEN R. PLOTKIN, Judge.

This appeal raises the complex question of whether the defendant, State of Louisiana, through Department of Transportation and Development ("DOTD"), was deprived of a fair opportunity to present a decisive defense as a result of the legal procedures used by the plaintiff, Vickie Hernandez. DOTD appeals a trial court judgment awarding Ms. Hernandez $375,000 plus legal interest and costs, for damages arising from the death of her natural mother, Barbara Hendley, resulting from a motor vehicle accident that occurred on Bayou Road in St. Bernard Parish. Finding that the Declaratory Judgment that was used in the instant case to defeat the DOTD's exception of no right of action to Ms. Hernandez's wrongful death action was an absolute nullity, we reverse the trial court judgment denying the exception, grant the exception, and dismiss Ms. Hernandez's wrongful death action.

Another issue concerns whether the $125,000 damages awarded to each of the plaintiffs, Jude and Arthur Bailey, for minor injuries was excessive. For the reasons that follow, we amend the trial court judgment in favor of Jude and Arthur Bailey, reducing the trial court's general damage award to Jude Bailey to $22,500, and reducing the trial court's general damage award to Arthur Bailey to $25,000. In all other respects the trial court judgment in favor of Jude and Arthur Bailey is affirmed.

FACTS AND PROCEDURAL HISTORY

The accident in question occurred at approximately 1:30 a.m. on February 11, 1998, when the Honda Civic automobile driven by Ms. Hendley crossed the center line on Bayou Road¹ in St. Bernard Parish, colliding head-on with the pick-up truck being driven by Jude Bailey, in which Arthur Bailey was riding as a passenger. As a result of the collision, Ms. Hendley suffered injuries that resulted in her death shortly thereafter. Both Jude and Arthur Bailey, who were brothers, were hospitalized overnight with various minor injuries.

On April 21, 1998, Ms. Hernandez, Ms. Hendley's natural child, filed a wrongful death action against the DOTD, asserting that the cause of the accident was the condition of Bayou Road at the site of the accident. On February 11, 1999, Jude and Arthur Bailey filed a separate suit against DOTD for personal injuries arising out of the accident. On June 16, 1999, the DOTD filed a Motion to Recuse Judge Pro Tempore J. Wayne Mumphrey of the 34th Judicial District Court, to whom the case had been allotted, alleging Judge Mumphrey's involvement as plaintiff's counsel in another case involving a vehicular accident on Bayou Road, which made him "biased, prejudiced, or interested in the cause or outcome" of this case. La. C.C.P. art. 151(B)(5). On June 21, 1999, Judge Mumphrey referred the Motion to Recuse to Judge Kirk A. Vaughn, another 34th Judicial District Court judge, pursuant to La. C.C.P. art. 155. Although the record does not contain a judgment on the DOTD's Motion to Recuse, it does contain an order signed byliudge Vaughn and dated June 28, 1999, granting the DOTD's motion to file an application for supervisory writs in this court, presumably seeking review of his denial of the DOTD's Motion to Recuse.

On June 24, 1999, Jude and Arthur Bailey filed a Motion to Consolidate their personal injury action with Ms. Hernandez's wrongful death action. Judge Mumphrey granted the Motion to Consolidate on June 28, 1999, the day the original trial commenced. The next day, June 29, 1999, this court denied the DOTD's Motion to Recuse, finding no error in Judge Vaughn's denial of the motion. On July 1, 1999 the DOTD filed a Second Motion to Recuse, seeking referral of the motion to yet a different judge for hearing, and citing additional pending cases involving Bayou Road in which Judge Mumphrey was counsel of record. On the same day, Judge Mumphrey denied the DOTD's request that he refer the Second Motion to Recuse to another 34th Judicial District Court judge. The DOTD again sought supervisory writs.

Following three days of the merits trial, on July 2, 1999, the Louisiana Supreme Court granted the DOTD's first Motion to Recuse, declared a mistrial in the case, and ordered that the case be re-allotted to another division of court. On the same day, Judge Mumphrey signed an order to reallot the case. However, on January 5, 2000, following the election of a new judge in the section where Judge Mumphrey was serving as pro tempore judge, the case was returned to the division to which it was originally allotted, to be tried by newlyelected Judge Wayne G. Cresap.

The second trial in the consolidated matter was held on July 17, 18, and 26, 2001. On July 27, 2001, the trial court issued its written judgment against DOTD, and in favor of Ms. Hernandez and Jude and Arthur Bailey. The DOTD appeals the judgment, assigning a number of errors, as further explained below.

MS. HERNANDEZ'S RIGHT TO BRING WRONGFUL DEATH ACTION

The record evidence, including Ms. Hernandez's deposition testimony, indicates that Ms. Hernandez (who was then Vickie Lynn Chalaire) was reared by her great aunt, Marie Sorci, from the time she was two years old until she became an adult, and that Ms. Hernandez had little contact with Ms. Hendley, her natural mother, for much of her formative years. Further, the record indicates that on August 21, 1985, Ms. Hernandez's eighteenth birthday, Ms. Sorci and Ms. Hernandez executed a Notarial Act, whereby Ms. Sorci adopted Ms. Hernandez "to have all the rights of an adopted child and forced heir as provided by the laws of the State of Louisiana."

On the day the original trial commenced, June 28, 1999, subsequent to Ms. Hernandez's deposition testimony concerning her adoption, DOTD filed a peremptory exception of no right of action² to the wrongful death suit filed by Ms. Hernandez, citing Ms. Hernandez's deposition testimony that she had been adopted by her great aunt. In support of its peremptory exception, the DOTD cited the consistent line of Louisiana cases holding that children given in adoption are not included in the classes of persons entitled to bring a wrongful death action enumerated in La. C.C. art. 2315.2. See Nelson v. Burkeen Construction Co., 605 So.2d 681 (La.App. 2 Cir.1992), citing Haas v. Baton Rouge General Hospital, 364 So.2d 944 (La.1978); Simmons v. Brooks, 342 So.2d 236 (La.App. 4 Cir. 1977); and Domingue v. Carencro Nursing Home, Inc., 520 So.2d 996 (La.App. 3 Cir.1987), writ denied, 522 So.2d 565 (La. 1988).

Faced with the DOTD's peremptory exception of no right of action, on September 1, 2000, Ms. Hernandez filed a Petition to Revoke, Rescind, and Declare Statutory Adoption Invalid, asserting that she was not advised at the time of her adoption that the adoption would affect her relationship with her natural mother. On February 12, 2001, Judge Cresap signed ex parte a Declaratory Judgment that Ms. Hernandez's adoption was "invalid, null, void, and without effect as though it had never been executed."

On June 28, 2001, just prior to the second trial, Ms. Hernandez filed both an exception and an opposition to the DOTD's peremptory exception of no right of action, attaching a copy of the Declaratory Judgment nullifying her adoption and characterizing the DOTD's exception as an improper collateral attack on a valid judgment. The next day, on June 29, 2001, Judge Cresap denied the DOTD's peremptory exception of no right of action. After the second trial, on July 23, 2001, the DOTD filed an application for a writ of supervisory review of the judgment denying its exception in this court. On July 25, 2001, this court denied the application for supervisory writs of review, stating as follow: "We decline to exercise our supervisory jurisdiction in this matter. Relator has an adequate remedy on appeal." Thus, as a preliminary matter, this court must determine whether the trial court properly denied the DOTD's peremptory exception of no right of action.³

The gravamen of Ms. Hernandez's arguments against DOTD's peremptory exception of no right of action is that the Declaratory Judgment whereby her adoption was nullified is now a final, valid judgment that removes the basis of the DOTD's exception. Further arguing that the time to appeal the Declaratory Judgment nullifying her adoption has passed, Ms. Hernandez asserts that the DOTD's peremptory exception represents an improper attempt to collaterally attack her final, valid Declaratory Judgment. She also argues that this court has no jurisdiction to consider the...