Thomas v. State

• Decision Date: 02 October 2019
• Docket Number: 2018 CA 0869
• Citation: 289 So.3d 579
• Parties: Dane THOMAS v. State of Louisiana, DEPARTMENT OF WILDLIFE & FISHERIES
• Court: Court of Appeal of Louisiana — District of US

289 So.3d 579

Dane THOMAS

v.State of Louisiana, DEPARTMENT OF WILDLIFE & FISHERIES

2018 CA 0869

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: OCTOBER 02, 2019

C. Arlen Braud, II, Michelle O. Gallagher, Steven D. Jackson, Mandeville, Louisiana, Attorneys for Appellant/Plaintiff, Dane Thomas

Henry S. Provosty, Lena D. Giangrosso, New Orleans, Louisiana, Attorneys for Appellee/Defendant, State of Louisiana, Department of Wildlife & Fisheries

BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

PENZATO, J.

Appellant, Dane Thomas, appeals a trial court judgment following a jury trial, finding Thomas to be partially at fault and Appellee, State of Louisiana, Department of Wildlife & Fisheries (LDWF), to be partially at fault for an accident resulting from a work-related injury aboard a boat owned by LDWF. Thomas brought suit alleging LDWF violated the Jones Act, 46 U.S.C. § 30104 et seq.,¹ and general maritime law and that he was entitled to damages, including maintenance and cure obligations under the general maritime law. Thomas further appeals a trial court judgment denying his motion for new trial. For the reasons that follow, we affirm the judgments of the trial court.

TIMELINESS OF APPEAL

At the outset, we note that the timely filing of a motion for appeal is a condition precedent for an appellate court properly to obtain jurisdiction over an action. Dupuy v. Dupuy, 2000-2744 (La. App. 1st Cir. 3/28/01), 808 So. 2d 562, 565. Absent the timely filing of an appeal, or petition for judicial review of an administrative ruling, the courts of this state lack jurisdiction to review that ruling. Robinson v. City of Baton Rouge, 566 So. 2d 415, 418 (La. App. 1st Cir. 1990). An appellate court can dismiss an appeal at any time for lack of jurisdiction if it is untimely. La. C.C.P. art. 2162.

Following a jury trial, the trial court signed a judgment on May 15, 2017. Notice of the judgment was issued on the same date. From the record, it appears that the motion for new trial was not filed until June 2, 2017, which is untimely. "The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913." La. C.C.P. art. 1974. If the motion for new trial is untimely, the January 10, 2018 devolutive appeal taken from the May 15, 2017 judgment is also untimely. See La. C.C.P. art. 2087 ; Dupuy, 808 So. 2d at 565. After a hearing, the trial court denied the motion for new trial on December 4, 2017. Thomas filed a devolutive appeal from the May 17, 2017 judgment and the December 4, 2017 denial of the motion for new trial on January 10, 2018. On September 21, 2018, this court issued an ex proprio motu rule to show cause as to whether or not the appeal should be dismissed as untimely. Thomas filed a response to the rule to show cause attaching several documents and arguing that he had timely fax filed his motion for new trial in compliance with La. R.S. 13:850. Since this court could not receive the new evidence submitted by Thomas, and the record showed that the appeal was untimely, on November 13, 2018, we issued an interim order remanding the matter to the trial court to make an express determination as to the precise date on which the motion for new trial was filed. See Hazey v. McCown, 2001-0929 (La. App. 1st Cir. 5/10/02), 818 So. 2d 932, 936.

On December 13, 2018, the record was supplemented with several documents. Another panel of this court referred the rule to show cause to this merits panel. Even after the supplementation of the record, the record did not contain sufficient information for this court to make a factual determination as to whether Thomas complied with the requirements of La. R.S. 13:850² when the motion for new trial was filed. Therefore, we issued an interim order to the trial court on March 21, 2019, ordering the trial court to conduct an evidentiary hearing to determine the precise date on which Thomas fax filed his motion for new trial and the precise date on which the original pleading and filing fees were delivered to the trial court, as well as to issue a per curiam with the trial court's findings on these issues.

In compliance with this court's order, the trial court held an evidentiary hearing and submitted a per curiam to this court, determining that Thomas fax filed the motion for new trial on May 24, 2017, and filed the original motion for new trial, along with the applicable filing fees, on June 2, 2017. Therefore, Thomas complied with La. R.S. 13:850 and timely filed the motion for new trial. Consequently, we maintain this appeal.

FACTS AND PROCEDURAL HISTORY

Thomas, an Enforcement Agent with LDWF, was injured on or about February 11, 2012, when he tripped on a bow rope while working on a boat owned by LDWF. As a result, he sought recovery from LDWF, claiming negligence pursuant to the Jones Act, unseaworthiness of the vessel under general maritime law, and violation of the maintenance and cure obligations under general maritime law. Thomas amended his petition, alleging permanent and total disability and grievous physical and mental pain and anguish.

On the day of this accident, Thomas was investigating a deer hunting complaint near a bayou and canal, which required the use of a boat. Thomas testified that even though he was assigned to use the particular boat at issue, other agents were allowed to use it. He also stated that the boat needed many repairs before the date of his injury. On a previous occasion, he had broken one of the guideposts off the trailer, which was used to launch the boat into the water, and he had notified his supervisor of that incident. Additionally, the particular boat he used on the day of the accident contained a broken bow rope that was approximately eight-feet long and shorter than normal. In order to launch the boat, Thomas added another piece of rope to the shortened bow rope. Thomas explained that he had previously asked LDWF to replace the bow rope, but LDWF refused. Since this particular boat did not have a side rope, he used the bow rope as a side rope when he needed to attach to another boat. Therefore, he could not keep the bow rope in a compartment, as he would not be able to reach it in time if he had to attach to another boat. On the date of his injury, the water level was high for the time of year. The boat was a twenty-two-foot boat on an approximately thirty-foot trailer. As Thomas was attempting to launch the boat into the water by himself, the wind and current pushed the boat sideways, causing it to stop suddenly. At the time, Thomas was attempting to "winch" the boat so that he could pull the trailer out of the water. Thomas had placed the bow rope on a step, which slid to the deck when the boat shifted, causing Thomas to trip on the bow rope and fall to the deck injuring himself. Thomas explained that had the guideposts been properly installed on the trailer, the boat would have stayed in the center even under the weather conditions that day.

On cross-examination, Thomas agreed that he was responsible for the general safety of the boat and for his own safety. He had also signed documents in 2009 and 2010 stating that an inspection must be completed prior to the use of a boat and that he was to check for unseaworthiness. Thomas reiterated on cross-examination that he had to lengthen the bow rope for the job he was performing, which was checking on other boaters, especially since he was working by himself. He also testified that even if he had exchanged the shorter bow rope with another boat's bow rope, it would have fallen on the deck. Thomas testified that he placed the coiled bow rope on a step, and during the movement of the boat, the bow rope fell to the deck, tripping him.

Lieutenant Cullen Sellers, Thomas's immediate supervisor, was unaware prior to the accident that the guidepost on the boat was broken or that the bow rope was too short. He only learned of these problems after the current lawsuit was filed and Thomas's deposition was taken. Captain Leonard Yokum, who was Sellers's supervisor, testified that if anything was wrong with the boat, Thomas was required to notify his immediate supervisor, who would then tell the employee to take it to the repair shop to get an estimate. He also stated that there was no evidence that Thomas attempted to get an estimate for repair of either the guidepost or the bow rope prior to the accident.

A jury trial was held on March 7-10, 2017, and a verdict was reached in the early morning hours of March 10, 2017. Prior to the beginning of trial, both parties submitted proposed jury instructions and jury verdict forms. During the trial, counsel for Thomas asserted that LDWF's proposed jury verdict form contained confusing and complicated questions. Counsel also objected to the inclusion of Questions 4(A)-(C), which pertain to the "primary duty doctrine," in the final jury verdict form.

On March 9, 2017, the third day of trial, the jury arrived at 8:15 a.m. that morning, and after preliminary matters were handled, the jury was brought into the courtroom at 8:50 a.m. After both parties rested and the jury was charged, the jury began deliberations at 7:14 p.m. Between approximately 8:32 p.m. and 10:00 p.m., the jury returned to the courtroom on three separate occasions after sending several notes to the trial court on issues unrelated to this appeal. At 11:25 p.m., the jury indicated that they were deadlocked with a vote of 8-4 on Question 1 of the verdict form, which pertained to the negligence of LDWF. The trial court suggested to the parties that an Allen charge be given to the jury,³ and counsel for Thomas suggested that due to the late hour, the jury be allowed to go home and return in the morning. The trial court declined to permit the jury to retire and return the next morning and offered either that a mistrial could...