Sparacello v. Andrews

• Decision Date: 23 December 1986
• Docket Number: No. 85,85
• Citation: 501 So.2d 269
• Parties: Jimmy Lee SPARACELLO, Individually and As Duly Appointed Tutor of Decedent's Minor Children, Theresa Marie Sparacello, and Vincent John Sparacello; Rosa (Rosie) Theresa Sparacello Higgs; Salvador John Sparacello, Jr.; and Samuel John Sparacello v. Scott F. ANDREWS, Edward K. Bowman and Roy C. Jensen. CA 0802.
• Court: Court of Appeal of Louisiana — District of US

Page 269

501 So.2d 269

Jimmy Lee SPARACELLO, Individually and As Duly Appointed Tutor of Decedent's Minor Children, Theresa Marie Sparacello, and Vincent John Sparacello; Rosa (Rosie) Theresa Sparacello Higgs; Salvador John Sparacello, Jr. and Samuel John Sparacello v. Scott F. ANDREWS, Edward K. Bowman and Roy C. Jensen.

No. 85 CA 0802.

Court of Appeal of Louisiana First Circuit.

Dec. 23, 1986.

Writ Denied Feb. 13, 1987.

John Degravelles, Baton Rouge, Joseph H. Simpson, Amite, for plaintiff-appellee.

William J. Waguespack, III, New Orleans, for defendants-appellants Edward K. Baumann and Scott Andrews.

Richard Creed, Jr., Baton Rouge, for defendants-appellants Roy C. Jensen and U.S. Fidelity and Guar. Co.

Michael T. Pawlus, Hammond, for Tickfaw Police Dept.

Before LOTTINGER, SHORTESS and CARTER, JJ.

CARTER, Judge.

This is a suit for damages for the wrongful death of plaintiffs' father, Salvador (Sam) John Sparacello, Sr.

FACTS

On May 23, 1982, defendants Scott F. Andrews, Edward K. Baumann ¹ and Roy C. Jensen left New Orleans in Baumann's silver Toyota Celica to go tubing near Tickfaw, Louisiana. On the way to Tickfaw, defendants purchased two cases of beer, some of which was consumed on the trip to Tickfaw and the remainder of which was consumed while tubing.

After their tubing trip down the Tangipahoa River, defendants got into Baumann's car and began driving around the Cherokee Beach campground. Baumann drove the car while Andrews sat in the front seat and Jensen sat in the back seat. Baumann's erratic and dangerous driving came to the attention of Pascal Painter, owner and manager of the campground, who advised defendants that he would not tolerate their dangerous behavior and asked defendants to leave the campground.

Thereafter, the defendants left Cherokee Beach via Highway 442. At approximately 3:30 p.m., defendants made a sudden U-turn in the gravel driveway of the Sparacello tube rental shop, causing gravel to be thrown at Jimmy Dunn, Steve Robertson, Sandra Gennaro, Jimmy Sparacello and the decedent, Sam Sparacello. The decedent, mayor of Tickfaw and a deputy sheriff with the local sheriff's office, cautioned defendants about their dangerous driving.

Defendant Jensen exited the car and inquired as to whether the shop sold cigarettes. When advised that they did not but that the store across the street did, Jensen uttered several obscenities. Decedent advised Jensen not to use that kind of language in the presence of a lady. Jensen responded with more obscenities.

Defendants left, again throwing gravel as the car spun out of the gravel driveway, and proceeded to the store across the street. After purchasing cigarettes, defendants got back into the car, yelled a few more obscenities in the direction of the Sparacello tube rental shop and drove off. As defendants drove off, Jensen made an obscene gesture with his finger toward the crowd in front of the store.

The decedent instructed his son Jimmy to contact police officer Tony Buras and to have Officer Buras stop the defendants' vehicle and bring defendants to him. Officer Buras complied with Sparacello's instructions and had the defendants follow him back to the tube rental shop.

When defendants and Officer Buras arrived at the tube rental shop, the decedent and Jimmy Sparacello, who were still sitting on the porch, approached defendants' vehicle. Decedent then pulled out his badge and displayed it to Andrews, who slapped the badge from decedent's hand. Thereafter, a struggle ensued between Andrews and the decedent. Baumann and Jensen exited the car in an attempt to assist Andrews, but were stopped by Officer Buras and Jimmy Sparacello. Sometime during the struggle, the decedent fell to the ground and died of a heart attack shortly afterward.

Plaintiffs filed suit for damages for the wrongful death of Sam Sparacello against Andrews, Baumann and Jensen. Plaintiffs by supplemental and amending petitions added United States Fidelity and Guaranty Company (USF & G), Jensen's liability insurer, as a party defendant. Baumann and Andrews filed a reconventional demand against Salvador (Sam) John Sparacello, Sr. and his heirs and third-party demands against Officer Buras and the Village of Tickfaw for assault, battery and malicious prosecution. Jensen and USF & G also filed third-party demands against Jimmy Lee Sparacello, Tickfaw Police Department and Officer Tony Buras.

On the first day of trial, the third-party demands were severed from the main demand and were continued. The main demand proceeded to a trial by jury, which rendered judgment in favor of plaintiffs and against defendants for $225,000.00.

From this adverse judgment, defendants Jensen and USF & G appeal, assigning the following errors:

(1) The jury erred in finding that Roy Jensen battered or assaulted Sam Sparacello, or that he engaged in a conspiracy to harm Mr. Sparacello.

(2) The jury erred in failing to find that Sam Sparacello was the aggressor.

(3) The trial court erred in not granting a continuance to defendants, or in the alternative, a mistrial, when Judge Kenneth J. Fogg became ill and was unable to finish trying the case.

(4) The trial court erred in severing and continuing the third-party demand of appellants, but refusing to continue the entire matter.

(5) The trial court erred in failing to grant a dismissal or direct a verdict in favor of appellee, when moved for at the close of plaintiffs' evidence.

(6) The trial court erred in giving plaintiffs' requested jury charge No. 11.

(7) The trial court erred in giving plaintiffs' requested jury charge No. 4.

(8) The trial court erred in failing to give defendants' requested jury charge No. 1 and No. 2 on the issue of causation.

(9) The jury erred in finding that Roy Jensen's conduct was a cause of Sam Sparacello's death.

(10) The court erred in allowing testimony regarding Mr. Roy Jensen's use of marijuana.

(11) The trial court erred in allowing testimony concerning the events that occurred at Cherokee Beach.

(12) The trial court erred in failing to lift the ban on discussion of criminal proceedings.

ASSIGNMENT OF ERROR NO. 3

(Motion for Continuance)

Defendants contend that the trial judge erred in not granting defendants a continuance.

As the record reflects, this matter was tried by jury with Judge Kenneth J. Fogg presiding on October 31 and November 1, 1984. However, on November 2, 1984, Judge Gordon E. Causey presided because Judge Fogg was ill. Defendants Jensen and USF & G requested a continuance, which was denied. Defendants reason that at the close of plaintiffs' case, they intended to file a motion to dismiss, on which Judge Causey would be unable to rule. They, therefore, reason that the trial judge erred in denying the motion for continuance.

The Louisiana Code of Civil Procedure provides the mechanism with which a court may grant or deny a motion to continue. LSA-C.C.P. art. 1601 provides that a continuance may be granted in any case if there is good ground therefor. Under this article, a continuance rests within the sound discretion of the trial court. Armstrong v. State Farm Fire & Casualty Company, 423 So.2d 79 (La.App. 1st Cir.1982). A trial judge must look to the facts of each case when a motion to continue is requested. Katz v. Melancon, 467 So.2d 1284 (La.App. 4th Cir.1985). Among the factors a trial judge considers before granting a continuance are diligence, good faith and reasonable grounds. Katz v. Melancon, supra. Weighed against the possibility of injustice, unfairness and inequity, which might result from a premature trial, is the effect that a continuance might have on the administration of justice, including congested court dockets, and just as important, a defendant's corollary right to have serious charges against him judicially resolved within a reasonable time. Dubea v. State, Louisiana Department of Corrections, 465 So.2d 245 (La.App. 3rd Cir.1985); Patterson v. Leggio, 347 So.2d 1262 (La.App. 1st Cir.1977).

A trial judge has wide discretion in acting upon a continuance. His ruling will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion. Dubea v. State, Louisiana Department of Corrections, supra. Appellate courts only interfere in such matters with reluctance and in extreme cases. Armstrong v. State Farm Fire & Casualty Company, supra; Superior Oil Company v. Van Breemen, 378 So.2d 444 (La.App. 3rd Cir.1979), writ denied, 379 So.2d 1101 (La.1980).

In the case sub judice, in denying defendants' motion for continuance, the trial judge stated:

THE COURT: Gentlemen, in the spirit of judicial economy, as well as judicial efficiency and considering that the jurors have been here for two days, I'm going to go ahead and complete the trial on behalf of Judge Fogg.

Although the granting of a continuance would seem to have been more appropriate, and while we do not consider it the better practice to substitute the trial judge in the middle of a trial, we cannot say that defendants were in any way prejudiced as a result of the substitution in the case sub judice. Although such a practice can result in prejudicial error affecting the litigants, we do not find prejudicial error in the instant case. The finder of fact in a jury trial is the jury and not the judge. The jury, the attorneys, the witnesses and the parties had proceeded through two full days of trial, and the judge determined that the spirit of judicial economy and efficiency required that the continuance be denied.

A trial judge has the inherent power to take reasonable actions to control his docket. Sather v. White, 388 So.2d 402 (La.App. 1st Cir.1980). After a thorough review of the record, we cannot say that prejudicial error occurred or that the trial judge abused his much discretion in denying defendants' motion for continuance.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 4

(Motion for Severance)

Defendants contend that the trial court erred in...