Lemoine v. Augustine, 16-862
| Decision Date | 01 March 2017 |
| Docket Number | 16-862 |
| Parties | MEAGAN LEMOINE, ET AL. v. LIONEL AUGUSTINE, ET AL. |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
Court composed of Billy H. Ezell, Shannon J. Gremillion, and David E. Chatelain, Judges.
AFFIRMED.
Henry G. Terhoeve
Sean Avocato
State Farm Mut. Auto. Ins. Co.
Stafford, Stewart & Potter
P. O. Box 1711
State Farm Mut. Auto. Ins. Co., UM Insurer of J. Barrere
Roy & Scott, Attorneys at Law
Meagan Lemoine, Indiv.
Johnathon Barrere, Indiv.
J. B. (child)
A. B. (child)
In this personal injury case, defendants appeal the trial court's judgment casting them with fault for claims they allege had prescribed and further were not proven by plaintiffs. Additionally, plaintiffs appeal the trial court's award of general damages. Finding no manifest error or abuse of discretion in the trial court's rulings on prescription, fault, and damages, we affirm.
The present litigation involves an accident that allegedly occurred on May 22, 2014, while Meagan Lemoine (Lemoine) was operating a 2001 Chevrolet 1500 HD pick-up truck (truck) owned by Johnathan Barrere (Barrere), the father of her children. Also present in the vehicle were Lemoine's daughters—Jaylynn Barrere (two-and-a-half years old) and Annlin Barrere (two months old)—and her sister, Sheree Cazelot (Cazelot).
As the evidence shows, Lemoine and her passengers were traveling in a northerly direction on Louisiana Highway No. 1 (La. 1) near Marksville with plans to visit a pediatrician when the accident occurred. At that time, La. 1 was undergoing construction to expand the two-lane portion into five lanes. Due to the construction, the traffic was very heavy on that date. As Lemoine was stopped under the traffic light at the intersection of Tunica Drive and South Preston Street, between the Avoyelles Parish Jail and Tobacco Plus, a white 1998 Jeep Grand Cherokee (Jeep) allegedly rear-ended her vehicle. However, neither Lemoine nor Cazelot saw who was actually driving the Jeep, and they did not even notice the Jeep until it "bumped" their vehicle.
After the impact, Lemoine turned into the parking lot of Royal Cajun Fried Chicken to assess the damage to the trailer hitch that extended from the truck's bumper. She then followed the Jeep to AutoZone, which was a short distancefarther north on La. 1. Lemoine witnessed an African-American woman exiting the Jeep and entering AutoZone, and Cazelot got out of the truck and took pictures of the Jeep with Lemoine's cell phone, including a photograph of the license plate.
Lemoine contacted Barrere who told her to go to the police. Thereafter, Lemoine and Cazelot went to the Avoyelles Parish Sheriff's Office where they were directed to report the accident to the Marksville Police Department. The Marksville police incident report shows Lemoine reported the accident at 4:55 p.m. that afternoon at which time photographs were taken of the truck. An officer even responded to AutoZone in search of the Jeep, but the vehicle was no longer on location. The officer's photographs taken of the truck, however, were not available for trial and are not in evidence.
Through investigation, it was determined that Lionel Augustine (Lionel) owned the vehicle in question. In mid-August of 2014, Mary Gayle Augustine (Mary), Lionel's wife, received a letter of representation from the law office of plaintiffs' counsel concerning the subject accident. The receipt of the letter upset the Augustines as both contended they were not involved in an accident on May 22, 2014. Looking into their activities on that day, Mary ascertained that her husband was not in Marksville but that she did drive their Jeep into Marksville on La. 1 after leaving work in Mansura specifically to visit the AutoZone that afternoon. Receipts from the store show Mary made purchases that day at 4:05 p.m. and 4:12 p.m. While she could not recall if the traffic was heavy, she nevertheless staunchly contended she was not involved in any accident.
As a result of the alleged accident, Lemoine and Barrere filed suit, individually and on behalf of their minor children, on October 14, 2014, against Lionel and his insurer, State Farm Mutual Automobile Insurance Company (State Farm), in which Cazelot joined as an additional party plaintiff (collectivelyplaintiffs). State Farm was also named as a defendant in its capacity as Barrere's uninsured/underinsured motorist insurance carrier (State Farm UM). However, plaintiffs did not amend their petition to add Mary as a named defendant until November 20, 2015.
In answer to plaintiffs' amended petition, defendants raised the defense of prescription, arguing plaintiffs' claims against Mary had prescribed on their face because she was not named as a defendant until a year and a half after the alleged accident. They then moved for summary judgment on March 11, 2016, specifically on, but not limited to, this issue. On April 18, 2016, the trial court heard the motion, which it denied without reasons through a judgment signed on May 20, 2016, the morning of trial.
Pursuant to La.Code Civ.P. art. 1732(A)(1) plaintiffs stipulated that each claimant's cause of action did not exceed $50,000; accordingly, the trial court tried this matter as a bench trial. During trial, both Lemoine and Cazelot testified about the alleged accident, the events that transpired soon thereafter, and their medical treatment. Lemoine also testified to her children's medical treatment. Barrere testified briefly regarding his truck and the damage it allegedly sustained in the accident as well as the various modifications he had made to it since the accident, specifically to the hitch and tires. Both Lionel and Mary recounted their movements on the day of the alleged accident and stated that neither of them was in an accident that day. They also testified about the lack of damage on their Jeep at the time of and after the alleged accident as well as its damage-free condition in July of 2014, when they sold the Jeep to Gloria Picot (Picot). Picot likewise testified there was no damage to the Jeep at the time of purchase. Gabrielle Kirkland, a State Farm Mobile Claim Representative, testified about her examination of the Jeep in August of 2014 as well as the pictures she took of theJeep at that time; these photographs were admitted into evidence and showed a black smudge on the front bumper, slightly left of center. She also testified regarding the measurements she took of Barrere's truck on the morning of trial. When asked to compare those measurements to the ones taken of the Jeep in August 2014, she determined the height of the present hitch would fall below the bumper of the Jeep. She conceded, however, she had not measured the truck prior to trial and did not know if anyone had measured the truck prior to the alterations to the hitch about which Barrere testified.
At the conclusion of evidence, the trial court took the matter under advisement. On June 3, 2016, the trial court issued its Reasons for Ruling, in which it found that a rear-end motor vehicle accident did occur at the fault of Mary and awarded damages to plaintiffs in the following amounts: $8,500.00 in general damages and $4,490.45 in special damages to Lemoine; $1,500.00 in general damages and $1,446.00 in special damages to Jaylynn Barrere; $1,000.00 in General Damages and $1,321.00 in special damages to Annlin Barrere; $7,500.00 in general damages and $3,573.48 in special damages to Cazelot. The trial court signed a Judgment in accordance therewith on June 30, 2016, wherein it further ordered defendants to bear all costs and dismissed with prejudice all claims against Lionel and State Farm UM. The plaintiffs and defendants both timely appealed the trial court's judgment.
The defendants assign two errors to the trial court's judgment. First, they contend the trial court erred when it cast them in judgment for claims, they allege, had prescribed. Second, they also assert the trial court committed manifest error when it concluded plaintiffs met their burden of proving Mary was involved in the accident. Assigning one error to the judgment, plaintiffs argue the trial courtabused its discretion in its award of general damages to both Lemoine and Cazelot.1 We will take each assignment in turn.
While the defense of prescription is typically asserted through a peremptory exception, prescription can also be raised in a motion for summary judgment. Doe v. Jones, 02-2581 (La.App. 1 Cir. 9/26/03), 857 So.2d 555. As previously observed, defendants first raised the defense of prescription in their answer to plaintiffs' amended petition and then again in their motion for summary judgment. Because defendants chose to use the latter procedure, our review of the trial court's denial of their motion for summary judgment would be de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Bardwell v. Faust, 06-1472 (La.App. 1 Cir. 5/4/07), 962 So.2d 13, writ denied, 07-1174 (La. 9/21/07), 964 So.2d 334. However, defendants did not apply for supervisory writs concerning the denial of their motion. Rather, they challenge, as manifest error, the trial court's casting them in judgment when all claims against Mary were prescribed. It is now well established that an appellate court should not restrict its fact review to...
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