Lozier v. EState Jay Elmer., 10–CA–754.

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
• Citation: 64 So.3d 237
• Parties: Darlene LOZIERv.ESTATE OF William Jay ELMER.
• Docket Number: No. 10–CA–754.,10–CA–754.
• Decision Date: 25 April 2011

64 So.3d 237

Darlene LOZIER
v.
ESTATE OF William Jay ELMER.

No. 10–CA–754.

Court of Appeal of Louisiana, Fifth Circuit.

Feb. 15, 2011.Writ Denied April 25, 2011.

[64 So.3d 238]

Boolus J. Boohaker, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant.William J. Faustermann, Jr., Attorney at Law, Slidell, LA, for Defendant/Appellee.Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.JUDE G. GRAVOIS, Judge.

[5 Cir. 2] The plaintiff, Darlene Lozier, has appealed the trial court's denial of her Motion for New Trial. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The following facts are taken from plaintiff's prior appeal in this matter:

On October 26, 2001, plaintiff filed a “Petition to Recover Damages for Breach of Contract Against the Estate of William Jay Elmer and to Recover Payment of Wages Owed by the Estate of William Jay Elmer.” In her petition, plaintiff asserts that William Elmer was her employer from September 1989 until his death on June 17, 2001. She claims that during her employment with Mr. Elmer, she normally worked 104 hours per week and received $5.00 per hour. She alleges that although the federal minimum wage rate increased to $5.15 per hour on September 1, 1997, she continued to receive $5.00 per hour, and she never received compensation for her overtime hours at one and one-half times the regular rate, as required by law. Further, Ms. Lozier contends that Mr. Elmer promised her that if she continued to work for him and act as his partner to develop his commercial property, known as Elmer's Island, he would take care of her for the rest of her life by providing a house, car, and living

[64 So.3d 239]

expenses. In her petition, Ms. Lozier seeks a judgment against the Estate of William Elmer (“the Estate”) for compensation for nonpayment of wages at the accepted federal minimum wage for regular and overtime work, and a judgment for a house, car, and living expenses for the rest of her life, as well as any other reasonable damages.

[5 Cir. 3] On December 10, 2001, the Estate filed an Answer and Reconventional Demand, asserting that no damages, wages, or other compensation is owed to Ms. Lozier, and seeking damages against Ms. Lozier for wrongful conversion of succession assets.

Lozier v. Estate of Elmer, 08–225 (La.App. 5 Cir. 9/30/08), 996 So.2d 511–512.

The trial court's grant of defendant's Exception of Res Judicata formed the basis of plaintiff's first appeal. This court reversed the trial court's grant of defendant's exception and remanded the matter for further proceedings.

The matter proceeded and was set for trial on August 24, 2009. However, on the morning of trial, plaintiff filed a Motion to Recuse the trial judge. Plaintiff's attorney did not appear for the hearing on the motion, which the trial judge denied. The trial judge then granted defendant's oral motion to dismiss plaintiff's suit with prejudice. On October 29, 2009, the trial judge signed a judgment denying the Motion to Recuse and dismissing plaintiff's suit with prejudice. Said judgment was mailed to the parties on November 2, 2009. On November 9, 2009, plaintiff filed a Motion for New Trial. This motion was denied after a hearing conducted on February 4, 2010. On March 31, 2010, plaintiff filed a Motion and Order for Devolutive Appeal, specifically stating “[p]laintiff desires to appeal devolutively from the final judgment denying a Motion for a New Trial in this action”.

APPEALABILITY OF DENIAL OF MOTION FOR NEW TRIAL

The denial of a motion for new trial is an interlocutory judgment which is not appealable. Brister v. Continental Ins. Co., 30,429 (La.App. 2 Cir. 4/8/98), 712 So.2d 177. Rather, the denial of a motion for new trial is reviewable only under the appellate court's supervisory jurisdiction for abuse of discretion. [5 Cir. 4] Jennings v. J. Ray McDermott Holdings, Inc., 99–3161 (La.App. 4 Cir. 4/5/00), 760 So.2d 462, 463.

However, our courts have held that appeals are favored in law, must be maintained whenever possible, and will not be dismissed for mere technicalities. Parfait v. Transocean Offshore, Inc., 07–1915 (La.3/14/08), 980 So.2d 634, 639; Smith v. Hartford Accident and Indem. Co., 254 La. 341, 223 So.2d 826 (1969); Fruehauf Trailer Co. v. Baillio, 252 La. 181, 210 So.2d 312 (1968); Kirkeby–Natus Corp. v. Campbell, 250 La. 868, 199 So.2d 904 (1967). Any doubt concerning the validity of an appeal should be resolved in favor of the appellant to the end that an appeal can be sustained. Smith, supra; Fruehauf, supra; Kirkeby–Natus Corp., supra.

Thus, an appeal from the order denying a new trial, rather than from the judgment from which the new trial is sought, is improper. However, when the motion for appeal refers to a specific judgment denying a motion for new trial, yet the appellant exhibits a clear intention to appeal instead the judgment on the merits, then the appeal should be considered. Smith, supra; Fruehauf, supra; Kirkeby–Natus, supra; Brister, supra. This view conforms to the mandate of LSA–C.C.P. art. 865 to construe every pleading so “as to do substantial justice.”

In her appellate brief, plaintiff argues that the trial court erred in denying her Motion for New Trial because the trial

[64 So.3d 240]

court erred in denying her Motion to Recuse. In plaintiff's view, once the Motion to Recuse was filed, the trial court had to either grant the motion recusing itself or refer the motion to another judge for ruling. Plaintiff contends that once the Motion to Recuse was filed, the trial court had no power to act until the motion was either granted or referred to another judge for ruling. Plaintiff concludes that the trial judge was without authority [5 Cir. 5] when she denied the Motion to Recuse and dismissed plaintiff's action with prejudice. Thus, it is obvious from plaintiff's brief that she contends that the underlying judgment on the Motion to Recuse was improperly denied. Accordingly, we will maintain the appeal and address the merits of plaintiff's arguments.MOTION TO RECUSE

The record reflects that at 8:33 a.m. on August 24, 2009, plaintiff filed a Motion to Recuse Judge Joan Benge from this matter. Plaintiff admits that the trial on the merits of plaintiff's case was set for the morning of August 24, 2009, but contends the motion was timely filed because it was filed prior to trial. Plaintiff's counsel states that he called opposing counsel to inform him that he was filing said motion but was told opposing counsel was unavailable. After filing the motion, plaintiff's counsel left the courthouse and brought a copy of the motion to opposing counsel's office.

The recusal motion alleges that pursuant to La. C.C.P. art. 151(A)(4), the trial judge should be recused. La. C.C.P. art. 151(A)(4) states:

A. A judge of any court, trial or appellate, shall be recused when he:

(4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties' attorney or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.

The motion alleges that Judge Benge was the subject of a proceeding by the Judiciary Commission which recommended she be removed from office. The motion also alleges that Judge Benge exhibited an unfavorable opinion of the plaintiff's cause of action and the plaintiff's attorney “starting in May of 2006 when the defendant hired an attorney who was a social and golfing friend of Judge [5 Cir. 6] Benge.” The...