Willis v. Letulle

• Decision Date: 06 March 1992
• Docket Number: No. CA,CA
• Citation: 1992 WL 46080,597 So.2d 456
• Parties: 142 L.R.R.M. (BNA) 2977 Donald H. WILLIS v. Michael D. LETULLE and Cumis Insurance Company. 90 0372.
• Court: Court of Appeal of Louisiana — District of US

Page 456

597 So.2d 456

142 L.R.R.M. (BNA) 2977

Donald H. WILLIS v. Michael D. LETULLE and Cumis Insurance Company.

No. CA 90 0372.

Court of Appeal of Louisiana First Circuit.

March 6, 1992.

Victor L. Marcello, Donaldsonville, for plaintiff, Donald H. Willis.

Donald Smith, Baton Rouge, for Allstate Ins. Co.

Richard T. Reed, Baton Rouge, for Michael Letulle.

Louis L. Robein, Jr., Metairie, for Intern. Longshoremen's Ass'n.

Before SHORTESS, LANIER and CRAIN, JJ.

ON REMAND

LANIER, Judge.

This case was previously before us as an appeal by the plaintiff, Donald H. Willis. Willis v. Letulle, 581 So.2d 1048 (La.App. 1st Cir.1991). We ruled the trial court erred by (1) allowing cross-examination of Willis about the details of his prior conviction for conspiracy to unload 15,872 tons of marijuana, and (2) granting a directed verdict in favor of the International Longshoreman's Association Local 3033, AFL-CIO (Union). We determined that the evidence was conflicting, the weight of the evidence was nearly equal, and a firsthand view of the witnesses was essential to a fair resolution of the evidence. We remanded the case to the trial court for a new trial pursuant to the authority of Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707 (La.1980). Willis, the Union, Letulle and his liability insurer, Cumis Insurance Company (Cumis) applied to the Louisiana Supreme Court for supervisory relief. The Louisiana Supreme Court peremptorily granted supervisory writs that stated the following:

Granted. Judgment of the court of appeal is vacated. Case is remanded to the court of appeal with instruction to decide the case. There is no legal basis for remand to the trial court for new trial.

Willis v. Letulle, 583 So.2d 484, 485 (La.1991).

After this appeal was returned to this court, Willis entered into a compromise agreement with Letulle and Cumis. Willis was paid the Cumis policy limits of $30,000 legal interest of $13,000, and $1,750 in court costs. On joint motion of all parties, Letulle and Cumis were dismissed as defendants-appellees with prejudice. The joint motion provided that Willis' uninsured motorist (UM) insurer, Allstate Insurance Company (Allstate) and the Union were "entitled to a credit or set-off for the [Cumis] policy limit of $30,000.00 ... against any judgment which may be rendered in favor of the plaintiff...." In an attached release, Willis reserved "all ... rights against all parties not specifically released herein...."

MEANING OF THE LOUISIANA SUPREME COURT ORDER

On remand, the Union asserts the Louisiana Supreme Court's orders remanding the case require this court to affirm the trial court's directed verdict in favor of the Union. The Union states that in its writ application it asked the Louisiana Supreme Court to reinstate the judgment of the district court granting a directed verdict in its favor. The Union concludes that "The supreme court granted the Union's application by ordering the court of appeal to decide the case, which on the issue of the Union's liability, in the absence of a new trial, can only be decided in favor of the Union."

In response to this, Willis asserts the following:

According to its brief, Allstate [sic] apparently believes that the Supreme Court intended to reverse this court's judgment overturning the jury finding of no liability. However, even a cursory examination of the record would reveal that the Supreme Court could not have intended such a result, for if the Supreme Court held the view that this court committed error in finding the marijuana evidence to have interdicted the verdict, it would have either granted a writ and heard the case, or granted a summary writ and reinstated the original trial court verdict. Fortunately, the Supreme Court did neither of these. Rather, it granted plaintiff's writ and ordered this court to "decide the case." Conclusive proof that the Supreme Court was accepting only the plaintiff's arguments that this court should decide the case rather than remand, the Supreme Court added: "There is no legal basis for remand to the trial court for new trial."

Appellate courts are authorized by La.C.C.P. arts. 2082 and 2164 to order remands in civil cases. Article 2082 defines an appeal as "the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court." Official Revision Comment (d) for Article 2082 provides as follows:

It should be noted that this article includes the idea of the remand. It was thought unnecessary, therefore, to spell out the word itself in the article. Note, also, that the idea of remand is covered by Art. 2164, infra.

Article 2164 authorizes an appellate court to "render any judgment which is just, legal, and proper upon the record on appeal." Official Revision Comments (c) and (d) for Article 2164 provide as follows:

(c) The above text is broad enough to permit affirmance in full and all revisions and modifications, as well as reversals or remandings. Hence, Arts. 905 and 906 of the 1870 Code, which specifically recognize those matters, seem unnecessary.

(d) Art. 902, Code of Practice of 1870, provides that in reversing a judgment the supreme court is to pronounce judgment on the case if it is able to do so, otherwise the case is to be reversed and remanded in accordance with Art. 906. Since Art. 2082, supra, is broad enough to cover the idea of remand, this procedure is adequately covered by this Code.

In Ragas v. Argonaut Southwest Insurance Co., 388 So.2d at 708 appears the following:

Where a finding of fact is interdicted because of some legal error implicit in the fact finding process or when a mistake of law forecloses any finding of fact, and where the record is otherwise complete, the appellate court should, if it can, render judgment on the record.

This is not to say, and Gonzales [v. Xerox Corporation, 320 So.2d 163] [ (La.1975) ] should not be read to require, that the appellate court must find its own facts in every such case. There are cases where the weight of the evidence is so nearly equal that a firsthand view of witnesses is essential to a fair resolution of the issues. The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial. (Emphasis added)

As an intermediate appellate court we are obligated to follow these instructions from the Louisiana Supreme Court. Pelican State Associates, Inc. v. Winder, 253 La. 697, 219 So.2d 500 (1969); United States Fidelity and Guaranty Company v. Green, 252 La. 227, 210 So.2d 328 (1968); Lucky v. Fricks, 511 So.2d 1315 (La.App. 2d Cir.), writ denied, 514 So.2d 455 (La.1987); Phillips v. Nereaux, 357 So.2d 813 (La.App. 1st Cir.1978). The Ragas instruction concerning a remand for a new trial would seem to be most pertinent in jury trial cases. In Parker v. Rowan Companies, Inc., 591 So.2d 349, 352 (La.1991), the Louisiana Supreme Court observed that "... the right to a trial by jury is fundamental in character and courts should indulge in every presumption against waiver, loss, or forfeiture of that right." See also Champagne v. American Southern Insurance Company, 295 So.2d 437 (La.1974). If a trial court error requires an appellate court to decide the facts of a case de novo, that trial court error also has the practical effect of depriving the litigants of their fundamental right to a trial by jury. In the instant case, Willis, Letulle, Cumis and Allstate have requested trial by jury. (Because the trial court granted a directed verdict, Willis' claim against the Union has never gone to a jury.) When the criteria set forth in Ragas have been found to exist, intermediate appellate courts in Louisiana have followed Ragas and ordered remands for new trials. See, for example, Savin v. Allstate Insurance Company, 579 So.2d 453 (La.App. 1st Cir.1991); Moore v. Clark, 517 So.2d 293 (La.App. 1st Cir.1987); Lewis v. State Farm Mutual Automobile Insurance, 499 So.2d 656 (La.App. 3rd Cir.1986); Arledge v. Bell, 463 So.2d 856 (La.App. 2d Cir.1985). Our research indicates that Ragas has never been expressly overruled.

The Louisiana Supreme Court remand order states that "There is no legal basis for remand to the trial court for new trial." The Union argues that the order means that the Louisiana Supreme Court reversed our ruling on its motion for a directed verdict (and by implication that the Louisiana Supreme Court also reversed our ruling on the cross-examination of Willis about the details of his prior conspiracy conviction). Willis disputes this interpretation and contends the order only requires this court to decide the case. Willis' interpretation will prevail if (1) the Louisiana Supreme Court has overruled Ragas by implication, or (2) Ragas is still good law and the Louisiana Supreme Court has determined that (a) the evidence was not conflicting, (b) the weight of the evidence was not nearly equal, or (c) a firsthand view of the witnesses was not essential to a fair resolution of the evidence, or found some combination of (a), (b) and (c).

We do not agree with the Union's interpretation of the order. The Louisiana Supreme Court vacated our judgment; it did not reverse our judgment. This action is similar to the case of Directional Wireline Services, Inc. v. Tillett, 540 So.2d 1103 (La.App. 1st Cir.1989) wherein this court overruled a peremptory exception raising the objection of no right of action, affirmed a trial court grant of a partial JNOV, and reversed the denial of a motion for a new trial and remanded for a new trial. The Louisiana Supreme Court peremptorily granted a writ, vacated our judgment and ordered us to decide the case on the record. Tillett, 541 So.2d 1386 (La.1989). On remand, we reconsidered and confirmed our prior rulings on the peremptory exception...