Mace v. Turner

• Decision Date: 18 July 2018
• Docket Number: CA 18-40
• Parties: CHELSEA MACE v. SHERMAN TURNER, ET AL.
• Court: Court of Appeal of Louisiana — District of US

CHELSEA MACE v. SHERMAN TURNER, ET AL.

CA 18-40

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

July 18, 2018

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OFRAPIDES, NO. 253,260

HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE

D.KENT SAVOIE JUDGE

Court composed of John E. Conery, D. Kent Savoie, and Candyce G. Perret, Judges.

AFFIRMED.

Brian M. Caubarreaux

Emily Gremillion

Eugene Ledet

Wesley K. Elmer

Brian Caubarreaux & Associates

144 West Tunica Drive

PO Box 129

Marksville, LA 71351

(318) 253-0900

COUNSEL FOR PLAINTIFF/APPELLANT:

Chelsea Mace

S. Daniel Meeks

Laurence R. DeBuys, IV

Phyllis E. Glazer

Kristen E. Meeks

Meeks and Associates, L.L.C.

3401 West Esplanade Avenue, South, Suite 3

Metairie, LA 70002

(504) 355-0020

COUNSEL FOR DEFENDANTS/APPELLEES:

Ace American Insurance Company

AAA Cooper Transportation

Sherman Turner

SAVOIE, Judge.

PlaintiffChelsea Mace appeals the trial court's judgment dismissing her claims against Defendants following the jury's finding of no fault on the part of the Defendant driver, Sherman Turner.For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of an alleged auto accident that occurred on April 22, 2015, between Plaintiff, Chelsea Mace, and Defendant, Sherman Turner.On that date, Mr. Turner was driving an 18-wheeler owned by his employer, AAA Cooper Transportation, and he was making a delivery in the course and scope of his employment.He was driving on Masonic Drive in Alexandria, Louisiana, when he mistakenly passed by the business to which he was supposed to make a delivery.He therefore turned right onto Bacon Street so that he could back the 18-wheeler into another business's parking lot and turn it around.

Meanwhile, Ms. Mace was driving a Dodge Nitro on Masonic Drive and turned right onto Bacon Street.According to Ms. Mace, after she turned onto Bacon Street, she saw the stopped 18-wheeler, and she stopped her vehicle five feet behind it.She alleges that while she was stopped, Mr. Turner began reversing the 18-wheeler and that the 18-wheeler ran into her Dodge Nitro.She alleges that as a result of this accident, she suffered injuries to her lower back and her treating physician has recommended a lumbar fusion to correct those injuries.

On August 16, 2016, Ms. Mace filed a motion for summary judgment on the issue of liability.Thereafter, she also filed several evidentiary motions, including a motion in limine filed on September 12, 2016, which sought to exclude any evidence suggesting that there was no contact between the 18-wheeler and Dodge Nitro.In support thereof, she alleged that there was a judicial confession on the issue of contact in Defendants' Answer.Ms. Mace also filed a motion in limineseeking to preclude testimony from Defendants' expert witness, Dr. Joseph Peles, an accident reconstructionist and biomechanical engineer.A hearing on those motions was held March 6, 2017, wherein the trial judge denied Plaintiff's motions, but ordered that "Plaintiff may present evidence of any responsive pleadings in the Defendants' Answer[,]" and "Dr. Peles shall be prohibited from testifying regarding opinions not consistent with his affidavit . . . of August 26, 2016[,] and his deposition testimony of September 13, 2016."The trial court also denied Ms. Mace's motion for summary judgment.

A jury trial was held March 21, 2017.Thereafter, the jury returned a verdict form reflecting its finding that Mr. Turner was not "at fault in causing this incident."A judgment dismissing Ms. Mace's claims was signed on April 5, 2017.Thereafter, Ms. Mace filed a motion for new trial and an alternative motion for JNOV, both of which were denied.Ms. Mace now appeals and asserts the following as assignments of error:

1.[The]Trial Court Ignored [D]efendant's Judicial Confession which ultimately tainted the verdict[.]

2.[The]Trial Court improperly allowed reconstruction and biomechanical testimony of Joseph Peles which tainted the verdict[.]

3.[The] Jury's finding of no fault on the part of the defendant-driver was error[.]

4.[The] Jury Erred in Not Awarding Plaintiff General and Special Damages[.]

ANALYSIS

Judicial Confession

In her first assignment of error, Ms. Mace challenges the trial court's denial of her motion in limine seeking to preclude evidence indicating that there was nocontact between the parties' vehicles.She argues that Defendants' Answer constitutes a judicial confession on the issue.¹

Paragraph five of Ms. Mace's petition alleged the following:

At approximately, 12:50 p.m., defendant-driver, SHERMAN TURNER, stopped in the middle of the roadway and proceeded in reverse attempting to back into the driveway of a business when suddenly, violently, and without warning, he struck the Mace Vehicle causing the subject motor vehicle accident.

In response, Defendants filed an answer on August 17, 2015, which included the following statement:

As to the allegations set forth in Paragraph 5 of the Petition for Damages of Plaintiff, it is admitted the 2006 Volvo Truck being operated by Turner contacted the front of the 2005 Dodge Nitro being operated by Plaintiff.All remaining allegations set forth in Paragraph 5 of the Petition for Damages of Plaintiff are denied.

Defendants' answer was signed by counsel, and no verification affidavit signed by the Defendants was attached.

As stated in Mitchell v. Artcrete, Inc., 09-492, pp. 7-8(La.App. 3 Cir.12/9/09), 24 So.3d 1000, 1005:

Louisiana Civil Code Article 1853 defines a judicial confession as "a declaration made by a party in a judicial proceeding."Louisiana Civil Code Article 1853 further provides that a judicial confession "constitutes full proof against the party who made it" and that it "is indivisible and it may be revoked only on the ground of error of fact."Once a judicial confession is made by a party, it "has the effect of waiving evidence as to the subject of the admission - of withdrawing the subject matter of the confession from issue."Cichirillo v. Avondale Indus., Inc., 04-2894, p. 6(La.11/29/05), 917 So.2d 424, 429(citingCheatham v. City of New Orleans, 378 So.2d 369(La.1979);Sutton's Steel & Supply, Inc. v. Bellsouth Mobility, Inc., 00-511(La.App. 3 Cir.12/13/00), 776 So.2d 589, writ denied, 01-152 (La.3/16/01), 787 So.2d 316).A judicial confession by a party, however, does not preclude that party from denying the correctness of the admission, unless the party claiming the benefit from theadmission has relied on the admission to his prejudice.Crawford v. Deshotels, 359 So.2d 118(La.1978).

As this court explained in Leday v. Safeway Ins. Co. of La., 04-610, pp. 5-6(La.App. 3 Cir.11/17/04), 888 So.2d 1084, 1088:

A judicial confession under La.Civ.Code art. 1853 constitutes incontrovertible evidence of a particular issue and serves to waive the necessity of any further proof on that issue.Ramelow v. Bd. of Trustees of the [Univ.] of Louisiana System, 03-1131(La.App. 3 Cir.3/31/04), 870 So.2d 415, writ denied, 04-1042 (La.6/18/04), 888 So.2d 184;C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003(La.12/3/03), 861 So.2d 156.In order for a party's statement to constitute a judicial confession, it must be an express acknowledgment of an adverse fact.Jones v. Gillen, 564 So.2d 1274(La.App. 5 Cir.1990);Sanders v. Earnest, 34,656(La.App. 2 Cir.7/24/01), 793 So.2d 393;State v. Lamb, 31,919(La.App. 2 Cir.5/7/99), 732 So.2d 1270.Additionally, "the adverse party must have believed the fact was no longer at issue or must have relied on it, to his detriment."Lamb, 732 So.2d at 1272;Alexis v. [Metro.] Life [Ins.] Co., 604 So.2d 581(La.1992);Jefferson Parish v. [Fid.] & Deposit Co., 95-951(La.App. 5 Cir.4/30/96), 673 So.2d 1238;Jones, 564 So.2d 1274.

In the instant matter, after Defendants filed their answer, a jury trial was initially set for October 18, 2016.The parties filed their respective lists of witnesses and exhibits in accordance with the trial court's scheduling order.On August 16, 2016, Ms. Mace filed a motion for summary judgment arguing that Defendants were solely liable and "[t]he defendant did not uphold his heightened duty of care as a driver reversing on the highway[.]"In support of her position that the 18-wheeler struck the front fender of her vehicle, Ms. Mace cited to Mr. Turner's deposition testimony, including his response to counsel's question concerning when he realized that he had made contact with another vehicle.Mr. Turner's response was, "Actually, I didn't know.I felt a bump, but I didn't see anything behind me."Ms. Mace did not attach, or otherwise refer to Defendants' answer in connection with the August 16, 2016 motion.

On August 25, 2016, Ms. Mace filed a Motion in Limine seeking to exclude various evidence.This motion did not address evidence concerning contact between the vehicles or otherwise mention Defendants' Answer.

Defendants filed their pre-trial memorandum on August 29, 2016, wherein they stated:

It is disputed whether any contact at all was made between the rear of the ACT Tractor-Trailer and the front of the [Dodge] Nitro.Photographs of the front of the Nitro do not show any damage, and the Plaintiff testified in deposition there was no damage or repairs made to the Nitro as a result of the alleged contact.

On September 8, 2016, Ms. Mace filed a supplemental motion for summary judgment on liability "to include in additional [sic] to the exhibits initially filed in support of her summary judgment . . . Defendant's Answer to the Petition for Damages."On that same day, Ms. Mace also filed a Supplemental Motion in Limine seeking to exclude evidence suggesting that contact between Mr. Turner's and Ms. Mace's vehicles did not occur.

Upon review of the record, we conclude that the trial court did not err in denying Ms. Mace's motion in limine pertaining to evidence of contact between the vehicles.There is no indication that Ms. Mace detrimentally relied on Defendants' statement...