Theriot v. Theriot

• Decision Date: 28 May 1993
• Docket Number: No. 92,92
• Citation: 622 So.2d 257
• Parties: Peggy T. THERIOT v. Nacis J. THERIOT. CA 1345.
• Court: Court of Appeal of Louisiana — District of US

Page 257

622 So.2d 257

Peggy T. THERIOT v. Nacis J. THERIOT.

No. 92 CA 1345.

Court of Appeal of Louisiana First Circuit.

May 28, 1993.

Rehearing Denied Aug. 4, 1993.

Stanley L. Perry, Galliano, for plaintiff-appellee Peggy T. Theriot.

Edward T. Diaz, Golden Meadow, for defendant-appellant Nacis J. Theriot.

George J. Ledet, Jr., Cut Off, for Movers South Lafourche Bank & Trust Co.

Before WATKINS, CRAIN and GONZALES, JJ.

WATKINS, Judge.

A threshold issue presented by this appeal is whether there was jury misconduct sufficient to impeach a verdict in favor of appellant's former wife awarding her damages for defendant's fraud. We find no merit in defendant's claim that the trial court erroneously excluded post-trial testimony of jurors, even for the limited purpose of an attempted proffer. The imperviousness of jury deliberations is a concept bedrocked in public policy. Finding that defendant has no right to rely on jurors' self-impeachment, we affirm the trial court's denial of a new trial.

The record reveals conflicting testimony at the trial on the merits concerning the representations made by the defendant, representations that the defendant claimed were accurate and that the plaintiff claimed were fraudulent. We are constrained to hold that the jury did not commit manifest error in finding that defendant committed fraud, and we affirm.

CLAIM OF JURY MISCONDUCT

Plaintiff, Peggy T. Theriot, filed suit against her former husband, Nacis J. Theriot, alleging that his intentional misrepresentations of values of their community property assets caused her to enter into a partition agreement whereby she was deprived of a substantial sum of money.

The matter was tried by jury before Judge Jerome J. Barbera, III, of the Seventeenth Judicial District Court for the Parish of Lafourche. The plaintiff was represented by Stanley L. Perry of Galliano, Louisiana, and the defendant was represented by Edward T. Diaz of Golden Meadow, Louisiana. The two were the same attorneys who represented the former spouses in the divorce proceedings.

Following the jury trial the defendant procured information concerning the deliberations of the jury and included same in what he now calls the "Griffin affidavit." Grounding his arguments on the statements contained in the affidavit, defendant launches a two-fold attack on the jury verdict: first, that it was tainted by the bias and prejudice of one juror, namely, the foreman Allison Lefort; and second, that the jury deviated from the court's instructions regarding the order in which the members were to deliberate and decide the issues of fraud and damages, thus causing three jurors to change their votes on fraud and to break a deadlock.

Assuming for the sake of argument that Ms. Lefort was biased against the judge and defendant's counsel because of a previous in-court encounter, nevertheless, her presence on the jury is not grounds for granting a new trial pursuant to LSA-C.C.P. art. 1972 (formerly Article 1814). The article provides in pertinent part that a new trial shall be granted when "the jury was bribed or has behaved improperly so that impartial justice has not been done." There is no allegation by defendant that Ms. Lefort attempted to bribe the jury. Furthermore, the presence on a jury of a highly opinionated person does not constitute "improper behavior" that precludes impartial justice within the meaning of Louisiana Code of Civil Procedure. Blandino v. Brown Erection Co., 341 So.2d 577 (La.App. 2d Cir.1977).

Nor is defendant's assertion that the jury failed to follow instructions a matter about which he would be able to offer any admissible and credible, supporting proof. His allegations of faulty procedure stem from the Griffin affidavit, and the proof he claims he was erroneously barred from presenting would have consisted of the testimony of the jurors. It is well settled that Louisiana jurors cannot impeach their own verdicts through affidavits and testimony. Coleman v. Brooks, 583 So.2d 133 (La.App. 4th Cir.1991); Pitts v. Bailes, 551 So.2d 1363 (La.App. 3d Cir.), writs denied, 553 So.2d 860 (La.1989) and 556 So.2d 1262 (La.1990).

The rule against self-impeachment has been codified in LSA-C.E. art 606, effective January 1, 1989. Defendant's reliance on the "new" rule found in Paragraph B of Article 606 is misplaced. Paragraph B provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror.... Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

Defendant argues that the jurors were specifically instructed by the judge to deliberate on the question of fraud first, and only if they found fraud, to deliberate on the issue of damages. Accepting as true the assertion that the vote on the amount of damages convinced the deadlocked jurors to change their votes on fraud, the type of testimony that would support such a charge is made inadmissible by the express provision of Article 606: "(A) juror may not testify ... to the effect of anything upon his ... mind ... as influencing him to assent to ... the verdict...." The alleged departure from the voting procedure outlined in the judge's instructions cannot be classified as an "outside influence" which would be an exception to the prohibition of Article 606.

Accordingly, we hold that the defendant has not alleged any type of jury misconduct that would have entitled him to a hearing at which affidavits and testimony of the jurors would have been admissible. Accordingly, it was not error for the trial court to suppress the subpoenas by ex parte order. We reiterate the rule applied by this court in Cosie v. Aetna Casualty & Surety Ins. Co., 527 So.2d 1105 (La.App. 1st Cir.1988): a juror cannot be heard to impeach the jury's verdict. Finally, we adhere to the principles stated in a case we previously cited with approval, Conner v. Florida Farm Bureau Casualty Ins. Co., 446 So.2d 383 (La.App. 3d Cir.1984), as follows:

As a general rule, a juror cannot be heard to impeach the jury's verdict. Renz v. Texas & Pacific Railway Company, 138 So.2d 114 (La.App. 3rd Cir.1962); Dieudonne v. Guidry, 336 So.2d 990 (La.App. 3rd Cir.1976) [writ denied, 339 So.2d 853 (La.1976) ]; Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3rd Cir.1977), writ refused, 354 So.2d 1050 (La.1978); Lachney v. Jones, 373 So.2d 595 (La.App. 3rd Cir.1979), writ denied, 376 So.2d 959 (La.1979).

The purpose of this rule as stated in 53 Am.Jur. 'Trial' Section 1105, frequently cited in Louisiana cases, is as follows:

'The rule is founded on public policy, and is for the purpose of preventing litigants or the public from invading the privacy of the jury room, either during the deliberations of the jury or afterwards. It is to prevent over-zealous litigants and a curious public from prying into deliberations which are intended to be, and should be, private, frank, and free discussions of the questions under consideration. Further, if after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would open the door for tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under sanction of oath.

'Testimony of the jurors to impeach their own verdict is not excluded because it is irrelevant to the matter in issue, but because experience has shown that it is more likely to prevent them (sic) to promote the discovery of the truth ...'

446 So.2d at 387.

MISREPRESENTATIONS ABOUT COMMUNITY PROPERTY

The background facts that led to this suit for fraud between former spouses are as follows.

Plaintiff and defendant were married in 1955 in Lafourche Parish and established their matrimonial domicile there. In August, 1977, Nacis Theriot left the family home. Suit was filed by Peggy Theriot, and judgment of divorce was granted to her on March 3, 1978. On December 13, 1977, prior to the divorce, Nacis Theriot, through his attorney, provided to plaintiff her counsel, and the court-appointed notary, a 13-page document entitled "Recapitulation of Nacis J. Theriot assets and Liabilities." The document purported to be a comprehensive accounting of community assets. Mr. Theriot disclosed the total net value of the community estate to be $318,606.16. On the same day that the judgment of divorce was rendered, the parties entered into a "Community Property Settlement," a contract that was recorded in the records of Lafourche Parish.

Almost 10 years later, on November 5, 1987, there was a hearing involving the former spouses, pursuant to a motion to terminate alimony filed by Mr. Theriot. Under oath, in response to questions by his own counsel, Mr. Theriot reviewed in detail the items listed in the "Community Property Settlement" of 1978. After the hearing, the trial court denied Mr. Theriot's motion to terminate alimony. The court observed that according to the 1978 "settlement" and Mr. Theriot's own 1987 "estimates" of the values of the corporations at the time of the 1978 settlement in which he was involved, Mr. Theriot received $1,500,000 in assets compared with the $350,000 received by his wife.

Thereafter, Peggy Theriot filed this lawsuit contending that her former husband violated his fiduciary duty to her, misrepresented the truth, and defrauded her. The suit for fraud was tried by a civil jury, which returned its verdict on July 12,...