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APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT. PARISH OF CALCASIEU, NO. 2009-939. HONORABLE RONALD F. WARE, DISTRICT JUDGE.
Brian D. Smith, J. Michael Nash, Ungarino & Eckert, L.L.C., Shreveport, LA, COUNSEL FOR DEFENDANTS-APPELLANTS: Beauregard Electric Cooperative, Inc., Federated Rural Electric Insurance Exchange.
George D. Fagan, Leake & Andersson, L.L.P., New Orleans, LA, COUNSEL FOR DEFENDANTS-APPELLANTS: Beauregard Electric Cooperative, Inc., Federated Rural Electric Insurance Exchange.
Patrick M. Wartelle, Leake & Andersson, L.L.P., Lafayette, LA, COUNSEL FOR DEFENDANTS-APPELLANTS: Federated Rural Electric Insurance Corp., Beauregard Electric Cooperative, Inc.
Barry A. Roach, Christopher S. Lacombe, Larry A. Roach, Inc., Lake Charles, LA,COUNSEL FOR PLAINTIFF-APPELLEE: John Anthony Guidry.
Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.
[14-1108 La.App. 3 Cir. 1]
This matter arises from an accident that occurred when some part of a loaded utility trailer being pulled by John Guidry came into contact with an electric line owned and maintained by Beauregard Electric Cooperative, Inc. Beauregard and Federated Rural Electric Insurance Exchange, Beauregard's insurer, (jointly referred to hereinafter as BECi) appealed the judgment awarded against them, and Mr. Guidry filed an answer to the appeal. For the reasons discussed below, we affirm in part, reverse in part, and remand this matter to the trial court for further proceedings.
FACTS AND PROCEDURAL HISTORY
On October 12, 2013, at approximately 11:30 p.m., Mr. Guidry and a friend, Karen Gorum, went to property situated in Edgerly off West Houston River Road that Mr. Guidry hoped to purchase. Prior to that day, Mr. Guidry had delivered various pieces of equipment to the property and installed a utility pole with a meter box on it. After learning that not all of the property owners were in agreement to sell the property, he went to retrieve his equipment and utility pole.
Upon arrival at the property, Mr. Guidry loaded the sixteen foot long utility trailer he used to transport his equipment, including the utility pole. Mr. Guidry described how he loaded the trailer as follows: (1) box blade on the front right side of the trailer; (2) yellow scoop on the front left side of the trailer; (3) removed the utility pole from the ground with a gin pole attached to his John Deere 990 four-wheel drive tractor, then backed the tractor onto the trailer while dragging the utility pole under the tractor; and (4) dropped the utility pole where it missed the back tailgate and the cab of the truck. Mr. Guidry testified that when loading the utility pole on the trailer, he wedged the utility pole under the tractor and against the box blade in such a manner that [14-1108 La.App. 3 Cir.
2] the utility pole would not move. He then explained that he secured all the equipment and utility pole on the trailer with binders and chains to prevent them from moving while he was in transit. Ms. Gorum remained in the cab of Mr. Guidry's truck while he loaded the equipment and had no knowledge of how Mr. Guidry loaded the trailer or secured the equipment.
Mr. Guidry and Ms. Gorum left the property with the utility trailer in tow. They travelled east on Houston River
Road approximately twelve to fourteen miles at forty to forty-five miles per hour when, according to Mr. Guidry, " all of a sudden it's like the truck went in the air" and " stopped in mid air." Mr. Guidry testified the truck then turned to the right and rolled over. Neither Mr. Guidry nor Ms. Gorman knew what caused the truck to become uncontrollable. After they emerged from the truck, they saw an electric line lying in the roadway.
Mr. Guidry suffered various injuries in the accident and sued BECi, an unnamed insurance company, and State Farm, his insurer, to recover damages for the injuries he suffered. BECi answered the suit, alleging Mr. Guidry was negligent and his negligence contributed to the accident. In a separate suit, Ms. Gorum sued BECi and Mr. Guidry, alleging they were both negligent in causing the accident and injuries she suffered as a result of the accident. She also sued Federated. State Farm and Mr. Guidry sued BECi and Federated in a separate suit, alleging BECi was negligent in causing the accident. In its suit, State Farm sought to recover the amount it paid Mr. Guidry for his property damages pursuant to the subrogation provision of an automobile insurance policy it issued to him; Mr. Guidry sought to recover the $250 deductible required by State Farm's policy. State Farm and Mr. Guidry were represented by counsel hired by State Farm; [14-1108 La.App. 3 Cir. 3] counsel for State Farm defended Mr. Guidry against Ms. Gorum's and BECi's claims.
BECi wanted to consolidate the three cases. With the consent of all the parties, the three suits were consolidated and tried together.
At the conclusion of BECi's presentation of its case, Mr. Guidry moved for a directed verdict, asking the trial court to find that BECi did not prove he was negligent in causing the accident. The trial court concluded BECi did not prove Mr. Guidry was negligent and granted the motion. The jury then considered the issues of whether " there was any fault on the part of BECi" and damages. The jury awarded verdicts in favor of each plaintiff. State Farm and Mr. Guidry's subrogation claims were awarded pursuant to a stipulation negotiated by counsel for State Farm. After the trial court signed a judgment in favor of Mr. Guidry, BECi filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial (JNOV). Mr. Guidry then filed a cross motion for JNOV (cross motion). Both BECi's motion for JNOV and Mr. Guidry's cross motion were heard by the trial court in June 2014. At the conclusion of the hearing, the trial court denied BECi's motion but granted Mr. Guidry's cross motion. After the trial court signed a judgment denying its motion for JNOV, BECi filed a motion for suspensive appeal and posted the security bond set by the trial court. Mr. Guidry answered the appeal.
As discussed in more detail below, the filing of the complete record of the proceedings below was delayed due to the failure of the court reporter to complete transcription of the trial testimony timely. After the entire record was lodged, BECi filed a partial peremptory exception of res judicata and motion for partial dismissal or request for other relief; Mr. Guidry then filed a peremptory exception [14-1108 La.App. 3 Cir. 4] of res judicata and acquiscence in the judgment and motion for partial judgment. After Mr. Guidry filed his answer, BECi filed a motion to strike and dismiss the answer.
Because our rulings on the exceptions and/or motions filed on appeal may resolve some of the issues raised in the parties' assignments of error, we address the exceptions and motions before considering the assigned errors.
EXCEPTIONS AND MOTIONS AND FILED ON APPEAL
BECi's Partial Peremptory Exception of Res Judicata and Motion for Partial Dismissal or Request for Other Relief
BECi argues in its exception of res judicata that Mr. Guidry filed his cross motion after the delay for filing a motion for JNOV expired and contends that the June 2014 judgment granting the cross motion and increasing Mr. Guidry's damage awards is an absolute nullity.
Louisiana Code of Civil Procedure Article 1811(A)(1) provides that a motion for JNOV may be filed " [n]ot later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of judgment under Article 1913." Mr. Guidry's judgment was signed on December 9, 2013, and the clerk of court mailed notice of the judgment on December 12, 2013. Accordingly, the seven-day delay provided in Article 1811 ended December 23, 2013, and Mr. Guidry's cross motion filed January 6, 2014, was not filed within the seven-day delay provided in Article 1811(A)(1).
Mr. Guidry argues his cross motion was filed timely because: (1) the three consolidated cases were merged into one case; (2) judgment was not issued in the State Farm case until January 10, 2014; and (3) judgment was not issued in the Gorum case until February 21, 2014.
BECi filed two unopposed motions to consolidate the Gorum and State Farm cases with the Guidry case. Louisiana Code Civil Procedure Article 1561 provides, in pertinent part:
A. When two or more separate actions are pending in the same court, the section or division of the court in which the first filed action is pending may order consolidation of the actions for trial after a contradictory hearing, and upon a finding that common issues of fact and law predominate and, in the event a trial date has been set in a subsequently filed action, upon a finding that consolidation is in the interest of justice.
BECi sought to consolidate the cases because they " involve[d] the same alleged accident, the same issues of law and fact, and the same defendants" and because consolidating the cases was in " the interest of judicial efficiency and [would] save costs to the litigants."
[14-1108 La.App. 3 Cir. 5] Mr. Guidry argues the record reflects that his case was merged with the State Farm case. The State Farm judgment was signed January 10, 2014; therefore, Mr. Guidry contends his cross motion was filed timely. This court addressed the issue of consolidated cases merging into one in OMNI Energy Servs. Corp. v. Rhyne, 14-251, pp. 21-22 (La.App. 3 Cir. 10/15/14), 150 So.3d 509, 523, stating:
[T]he supreme court has stated that consolidation pursuant to La.Code Civ.P. art. 1561 is " a procedural device which allows a trial court to deal with similar issues of law or fact in one trial; it does not merge the parties, affect the running of delays, or authorize consolidation of judgments or appeals." Davis v. Am. Home Prods. Corp., 95-1035, p. 1 (La.5/19/95), 654 So.2d 681, 681. Although there are cases which state that a consolidation of actions does not act to merge two cases into one unless the records clearly reflects an intention to do so, we have found no authority for such a rule. Ricks v. Kentwood Oil Co., Inc., 09-677 (La.App. 1 Cir. 2/23/10), 38 So.3d 363, writ denied, 10-1733 (La.10/15/10), 45 So.3d 1112; Johnson v. Shafor, 08-2145 (La.App. 1 Cir. 7/29/09), 22 So.3d 935, writ denied, 09-1921 (La.11/20/09), 25 So.3d 812.
In OMNI, the court refused to grant a judgment ordering that cases consolidated in the trial court were merged into one suit. As noted in OMNI, we can find no [14-1108 La.App. 3 Cir. 6] authority for the rule that consolidation does not merge cases unless the record clearly reflects that the parties intended to merge the cases. More importantly, we have not found any case in which consolidated cases were held to be merged because the records reflected the parties intended them to be merged. Furthermore, the record does not ...