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Gilley v. Gilley Enterprises, Inc.

Court of Appeals of Louisiana, Second Circuit

May 2, 2017

CHRISTOPHER GILLEY Plaintiff-Appellant
v.
GILLEY ENTERPRISES, INC. AND LIBERTY MUTUAL INSURANCE COMPANY Defendants-Appellees

         Appealed from the Office of Workers' Compensation, District 1-E Parish of Ouachita, Louisiana Lower Court Case No. 14-045998 Brenza Irving Jones Workers' Compensation Judge.

          CHRISTOPHER GILLEY In Proper Person.

          THOMAS, SOILEAU, JACKSON, BAKER & COLE, L.L.P. By: Patrick F. Cole Kim P. Thomas Counsel for Appellees.

          Before LOLLEY, GARRETT, and STONE, JJ.

          GARRETT, J.

         The plaintiff, Christopher Gilley, appeals from a decision by the workers' compensation judge ("WCJ") denying his motion for new trial, which objected to the grant of summary judgment in favor of the defendant, Gilley Enterprises, Inc. ("Gilley Enterprises"), and its insurer, Liberty Mutual Insurance Company ("Liberty Mutual"). For the following reasons, we affirm.

         FACTS

         Gilley was employed with Gilley Enterprises, a business which operates McDonald's restaurants and is owned by his uncle. On July 22, 2012, Gilley was installing a camera system in a restaurant that was being rebuilt in El Dorado, Arkansas. He alleged that he came into contact with a live electrical wire hanging from the ceiling. The wire was to be used for a ceiling light. Gilley claimed the wire touched his neck and back, sending an electrical shock through his body. He was standing on a safe at the time, and stated that he stepped backward off the safe. He sought medical attention, complaining of pain in his neck, back, and ankle. He performed his regular job duties through September or October, 2013. Thereafter, he worked irregularly, doing consulting work for the company. Gilley was paid by Gilley Enterprises through April 30, 2014.

         On September 10, 2014, Gilley filed a disputed claim for compensation, asserting that he was injured while working and was entitled to temporary total disability ("TTD") benefits or, in the alternative, to supplemental earnings benefits ("SEBs") from May 1, 2014, to present, along with penalties and attorney fees.

         Gilley Enterprises, represented by Liberty Mutual, answered and asserted that if Gilley was injured, he had recovered, and any disability was the result of degenerative processes. The company claimed that Gilley was capable of working.

         On December 3, 2014, Gilley's attorney withdrew.[1] On January 5, 2015, Gilley, representing himself, filed an amended claim asking for medical benefits, as well as indemnity benefits. Gilley Enterprises filed an amended answer asserting the affirmative defense of fraud, claiming that Gilley was not injured and that he gave false testimony to obtain benefits.

         On March 6, 2015, Gilley Enterprises filed a motion for summary judgment noting that Gilley alleged that he was injured by contact with a live electrical wire. However, the company provided proof that there was no electricity supplying power to the wire at the time of the alleged accident. It submitted the affidavit of Jerry Edwards, the electrician who supervised the electrical work at the restaurant. He was aware that Gilley claimed to have been injured by contact with a live electrical wire; however, there was no electricity connected to the building until July 31, 2012. According to Edwards, there was a temporary power source, but it was a closed circuit power supply that was completely isolated from the building's electrical system. Edwards concluded that it was impossible for Gilley to have been injured as he claimed. The company also provided an affidavit from Steve H. Morgan, engineering associate and distribution lead for the southwest region at Entergy, the electrical utility company serving the area. Morgan stated that the electric power had been removed from the site and was reconnected on July 31, 2012.

         Gilley Enterprises also submitted proof that Gilley did not sustain any injury. Medical records showed that Gilley saw Dr. Ronald Woods at Glenwood Family Practice on July 24, 2012, complaining of neck, ear, and low back pain. He said he had been shocked by an electrical wire the day before. Dr. Woods found no traumatic injuries. An MRI of Gilley's cervical spine was normal. An MRI of his lumbar spine showed only degenerative disease with no acute injury. Records from Bienville Medical Center on August 7, 2012, found that there was no injury, swelling, or burn marks on Gilley. In October 2014, Dr. Gordon Mead was unable to substantiate any of Gilley's complaints.

         At the hearing on the motion held on May 11, 2015, Gilley did not appear. The WCJ determined from the record that on March 25, 2015, Gilley was notified to appear for the hearing. After hearing arguments presented by the employer's counsel and reviewing the evidence submitted in support of the motion, the WCJ granted the summary judgment in open court. On May 13, 2015, the WCJ signed a judgment in favor of Gilley Enterprises and Liberty Mutual, dismissing Gilley's claims with prejudice.

         On May 22, 2015, Gilley delivered a two-page typewritten letter to the WCJ asking for a new hearing. The long, rambling letter included an apology for being "late and absent" from the hearing on the motion for summary judgment due to health problems. Gilley disputed the claim that there was no electricity connected to the wiring in the building at the time of his alleged injury. The WCJ construed the letter as a motion for new trial and set the motion for a hearing.[2]

         Gilley Enterprises filed a motion to dismiss the motion for new trial as untimely. A hearing was held in June 2015, and Gilley appeared, unrepresented by counsel. He stated that he had not been able to find a lawyer to take his case. The WCJ dismissed the motion for new trial as untimely, noting that, according to La. C.C.P. art. 1974, the delay for applying for a motion for new trial is seven days, exclusive of legal holidays, and begins to run the day after the mailing of notice of judgment.[3] The WCJ erroneously reasoned that Saturdays and Sundays are not legal holidays. Gilley appealed; this court reversed, finding that the motion for new trial was timely, and remanded the matter for consideration of the merits. See Gilley v. Gilley Enters., Inc., 50, 562 (La.App. 2 Cir. 4/13/16), 195 So.3d 20.

         A hearing on remand was scheduled for May 16, 2016. Gilley appeared and stated that he wanted a lawyer to represent him and asked for time to find one. The WCJ granted his request.

         On July 25, 2016, the hearing was held on the motion for new trial. Gilley appeared, unrepresented by counsel, and stated that he decided it was best that he represent himself. He argued that there was temporary power to the building, but claimed that Ernest Edwards, the electrician who actually worked on the job, would not give him an affidavit because he was afraid he would get into trouble. Gilley attacked the credibility of Jerry Edwards, the electrician who gave an affidavit in favor of Gilley Enterprises, claiming he was "on probation for not meeting - the right credentials at his work." He offered no proof of this allegation. Gilley stated he had bills from Entergy for approximately $100 for each month that temporary power was used at the job site.

         Gilley presented an affidavit from Joe Poland, someone he claimed was familiar with the McDonald's work site. Poland said that he saw exposed electrical wires in the restaurant. The WCJ read a portion of the affidavit into the record which stated, "There were extension cords, strips and wired [sic] into lights in the ceiling of McDonalds with no type of tape or wire-net." The WCJ observed that Poland "doesn't say that he was a witness to the fact that there was electricity there."

         Gilley urged that he had extensive proof that he had a serious injury. He claimed that, for two years after the alleged injury, he was not treated properly because he did not know that the electric shock caused his symptoms. He stated that his dentist told him he had nerve damage from the alleged injury. Gilley claimed he had a letter from a doctor he had seen at Johns Hopkins Hospital ("Johns Hopkins") who dealt with electrical shock injuries. Gilley maintained that another doctor at Johns Hopkins did testing and determined that he had "scar tissue from the injury." Gilley asserted that he had seen a neurologist who told him he had "neurological and nerve damage" and diagnosed him with post-traumatic stress disorder. He stated that he had undergone a functional capacity examination and a mental evaluation.

         Gilley Enterprises argued that the medical reports, electric bills, affidavit, and other information supplied by Gilley were all generated well before the hearing on the motion for summary judgment in May 2015. The company urged that everything being put forth by Gilley in support of his motion for new trial was known to all the parties for several years.

         The WCJ questioned Gilley about Poland's affidavit. Gilley stated that he had known Poland for a long time and had no reasonable explanation as to why he could not have offered the affidavit at the hearing on the motion for summary judgment.

         The WCJ determined that Poland's affidavit did not refute the affidavits of Edwards and Morgan submitted by Gilley Enterprises. The WCJ found that the affidavits previously submitted by Gilley Enterprises supported the granting of summary judgment, and particularly noted that Morgan's affidavit stated that electric power was not restored to the restaurant until July 31, 2012, several days after Gilley alleged he was injured.

         The WCJ determined that the evidence Gilley attempted to rely on was discoverable prior to the hearing date for the motion for summary judgment. The WCJ found that the prior grant of summary judgment, in favor of Gilley Enterprises, was proper. On August 2, 2016, the WCJ signed a judgment denying the motion for new trial with prejudice.

         Gilley appeals again and is representing himself. Due to his lack of finances, Gilley was granted a waiver of payment of advance costs by the WCJ. He filed a brief which listed several assignments of error. Essentially, Gilley contends that he was denied due process when the WCJ held a hearing on the motion for summary judgment when he was not present or represented by counsel; that the WCJ erred in granting summary judgment in favor of Gilley Enterprises, denying his claim for indemnity and medical benefits; and that the WCJ erred in denying his claim for a new trial.[4] Gilley did not include any argument on those issues and simply stated that he requested that the decision of the WCJ be reversed and a new trial be granted to "allow constitutional rights for his due process to plea [sic] his case."

         OBJECTIONS TO GILLEY'S BRIEF

         Gilley Enterprises raises several objections to Gilley's brief, claiming it does not comply with URCA 2-12.4. [5] The company urges that Gilley's brief failed to reference specific page numbers in the brief. Further, because Gilley failed to brief any of his listed assignments of error, the assignments have been abandoned and should not be considered on appeal.

         Even though it is clear that Gilley's brief does not comply with the requirements of URCA Rule 2-12.4, when a workers' compensation claimant is proceeding without counsel, courts will consider the brief, attempt to divine the substance of the arguments, and treat them as properly raised, despite the improper form of the appellate brief. See Cheatham v. Luberski, Inc., 43, 603 (La.App. 2 Cir. 9/17/08), 996 So.2d 373; Sheridan v. Pride & Hope Ministry Family Support Servs., 2013-1666 (La.App. 1 Cir. 5/2/14), 147 So.3d 717; Franklin v. Slidell Police Dep't, 2012-0539 (La.App. 1 Cir. 12/31/12), 112 So.3d 257, writ denied, 2013-0471 (La. 4/5/13), 110 So.3d 592; Richardson v. North Oaks Hosp., 2011-1258 (La.App. 1 Cir. 2/13/12), 91 So.3d 361; Hunter v. Rapides Par. Sch. Bd., 2014-490 (La.App. 3 Cir. 11/5/14), 150 So.3d 638; Carsice v. Empire Janitorial, 2008-0741 (La.App. 4 Cir. 12/17/08), 2 So.3d 553, writ denied, 2009-0097 (La. 3/13/09), 5 So.3d 123; Machado v. Baker Concrete Const., 13-273 (La.App. 5 Cir. 10/30/13), 128 So.3d 477. Therefore, we decline to consider Gilley's arguments to be abandoned.

         DUE PROCESS CLAIMS

         Gilley essentially urges that he was denied due process when the WCJ held a hearing on the motion for summary judgment when he was not present or represented by counsel.[6] These arguments are without merit.

         Legal Principles

         Under La. C.C.P. art. 966, dealing with motions for summary judgment, any judgment rendered in accordance therewith must be based on proof by the mover that he is entitled to judgment pursuant to substantive law. However, courts have consistently found that the mover must also show that he has secured the judgment in accordance with the procedural law in order to have the summary judgment upheld on appeal. Macaluso v. Macaluso, 1999-0935 ...


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