PETERSON M. YOKUM, ET AL
FUNKY 544 RHYTHM AND BLUES CAFE, ET AL.
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2010-06826,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge
Michael G. Stag Ashley M. Liuzza Matthew D. Rogenes SMITH
STAG, LLC Barry J. Cooper, Jr. COOPER LAW FIRM, L.L.C. Ron A.
Austin AUSTIN & ASSOCIATES, LLC COUNSEL FOR
Kathleen A. Manning Francis H. Brown, III Bennett Richardson
McGLINCHEY STAFFORD, PLLC Celeste D. Elliott Anne E. Briard
LUGENBUHL WHEATON PECK RANKIN & HUBBARD COUNSEL FOR
composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina
Jenkins, Judge Dale N. Atkins).
Cossich Lobrano Judge.
noise complaint litigation, plaintiffs/appellants, Peterson
M. Yokum and Polly Elizabeth Anderson (collectively
"Yokum"), appeal the district court's September
25, 2014 judgment dismissing Yokum's claim for damages
against defendants/appellants, French Quarter nightclub Funky
544, LLC, as well as its management company and its officers,
property owners, and insurers, (collectively "Funky
544" or "the nightclub"), and the March 23,
2016 judgment denying Yokum's motion for new trial and/or
judgment notwithstanding the verdict ("JNOV"). For
the reasons that follow, we affirm.
the background of this litigation was set forth in this
Court's prior opinion in Yokum v. 544 Funky,
LLC, 2015-1353, pp. 1-3 (La.App. 4 Cir. 9/28/16), 202
So.3d 1065, 1067-68, writ denied, 2016-2231 (La.
1/25/17), 215 So.3d 685, as follows:
Funky 544 is located at 544 Bourbon St. in the French Quarter
or the Vieux Carré. As French Quarter residents living
near Funky 544 at 723 Toulouse St., the Appellants [Yokum]
aver that they submitted verbal and written complaints to the
nightclub's operators requesting cessation of the
excessive amplified sound emanating from the property, but to
no avail. Consequently, in 2010, they filed suit against
Funky 544 asserting misdemeanor nuisance claims punishable by
fines and/or imprisonment resulting from their amplifier and
sub-woofer usage. [footnote omitted] The Appellants sought
injunctive and declaratory relief as well as damages. The
Appellants explain that their lawsuit involves nuisance
claims relating to physical sound-wave trespasses of
excessive sound levels. Additionally, Mr. Yokum also raised
claims under Sec. 66-136 et seq. of the Code of Ordinances
for the City of New Orleans, which is also known as the City
of New Orleans Noise Ordinance ("the NONO").
On January 7, 2013, the district court issued a preliminary
injunction wherein it ordered that Funky 544:
... be enjoined from violating and shall comply with all
applicable sections of the City of New Orleans Noise
Ordinance, Sections 66-136, et seq., and specifically, Sec.
66-201, 202 and 66-203. This Court has instructed the
Defendants [Funky 544] immediately institute policies and
procedures to ensure the level of noise emanating from
Defendants' premises does not exceed the sound level as
indicated in Sec. 66-202 "Maximum permissible sound
levels by receiving land use." This includes, but is not
limited to, taking appropriate measurements as called for by
the City of New Orleans Noise Ordinance Sec. 66-201 [footnote
omitted] and reducing the level of sound emanating from the
premises as necessary to comply.
The Appellants later filed a Motion for Violation of the
Preliminary Injunction and/or Contempt asserting that Funky
544 failed to comply with the preliminary injunction. They
assert that Funky 544 refused to institute a sound control
program to comply with the NONO and did not maintain
compliance documents. The district court referred the motion
to trial on the merits.
After several days of trial, a jury determined that Funky 544
was not a nuisance to the Appellants, who were not awarded
damages. Post-trial, the district court considered the
Appellants' Motion for Judgment Not Withstanding Verdict
and a Motion for New Trial, which were denied by the district
court. The district court also considered the Appellants'
Motion for Violation of the Preliminary Injunction and/or for
Contempt and Motion for Permanent Injunction. The district
court denied both motions.
appeal currently before this Court arises from the jury
trial, at which Yokum was not awarded any damages and all
claims by Yokum against Funky 544 were dismissed with
prejudice. While Yokum's motion for new trial and/or JNOV
was under advisement, the district court also ruled upon the
motion for permanent injunction, which was the subject of the
prior appeal. After the district court denied Yokum's
motion for new trial and/or JNOV, the instant appeal
followed, in which Yokum sets forth sixteen (16) assignments
contends that the district court erred in two respects in its
• by rejecting the jury instruction requested by Yokum
regarding the appropriate evidentiary weight to give
uncontroverted and unrebutted evidence
• by refusing to give a jury instruction regarding
spoliation and adverse inference relative to certain evidence
destroyed by Funky 544
Louisiana Supreme Court set forth the following standard of
review relative to jury instructions in Adams v. Rhodia,
Inc., 2007-2110, pp. 6-8 (La. 5/21/08), 983 So.2d 798,
804-05 (internal citations omitted):
Adequate jury instructions are those which fairly and
reasonably point out the issues and which provide correct
principles of law for the jury to apply to those issues. The
trial judge is under no obligation to give any specific jury
instructions that may be submitted by either party; the judge
must, however, correctly charge the jury. If the trial court
omits an applicable, essential legal principle, its
instruction does not adequately set forth the issues to be
decided by the jury and may constitute reversible error.
Louisiana jurisprudence is well established that an appellate
court must exercise great restraint before it reverses a jury
verdict because of erroneous jury instructions. Trial courts
are given broad discretion in formulating jury instructions
and a trial court judgment should not be reversed so long as
the charge correctly states the substance of the law.
However, when a jury is erroneously instructed and the error
probably contributed to the verdict, an appellate court must
set aside the verdict. … Ultimately, the determinative
question is whether the jury instructions misled the jury to
the extent that it was prevented from dispensing justice.
… Because the adequacy of jury instruction must be
determined in the light of jury instructions as a whole, when
small portions of the instructions are isolated from the
context and are erroneous, error is not necessarily
prejudicial. Furthermore, the manifest error standard for
appellate review may not be ignored unless the jury charges
were so incorrect or so inadequate as to preclude the jury
from reaching a verdict based on the law and facts. Thus, on
appellate review of a jury trial the mere discovery of an
error in the judge's instructions does not of itself
justify the appellate court conducting the equivalent of a
trial de novo, without first measuring the gravity
or degree of error and considering the instructions as a
whole and the circumstances of the case.
requested the following jury instruction on uncontroverted
The law is clear that in evaluating the evidence, you should
accept as true uncontradicted testimony of a plaintiff
witness absent a sound reason for its rejection, and these
factual finding[s] are to be given great weight.
district court gave the following instruction:
… if the testimony on any point is not contradicted,
you should treat it as proving that fact unless the testimony
seems to you to be impossible or improbable or unless the
witness has shown by his or her testimony or it is shown by
the other evidence in the case to be unworthy of belief.
appeal, Yokum argues that the jury instruction given by the
district court was confusing and "encourage[d] the jury
to doubt uncontroverted testimony." Funky 544 contends
that the district court's instruction was a correct
statement of the law and was very similar to the instruction
proposed by Yokum. Funky 544 also argues that Yokum failed to
make a contemporaneous objection to the jury instruction;
thus, he failed to preserve the issue for appeal.
agree with Funky 544.Yokum waived appellate review of this
issue because he objected to the instruction for the first
time in his motion for new trial and/or JNOV. La. C.C.P. art.
1793(C) provides as follows:
A party may not assign as error the giving or the failure to
give an instruction unless he objects thereto either before
the jury retires to consider its verdict or immediately after
the jury retires, stating specifically the matter to which he
objects and the grounds of his objection. If he objects prior
to the time the jury retires, he shall be given an
opportunity to make the objection out of the hearing of the
if jury instructions or interrogatories contain a 'plain
and fundamental' error, the contemporaneous objection
requirement is relaxed and appellate review is
permitted." Chicago Prop. Interests, L.L.C. v.
Broussard, 2015-0299, p. 4 (La.App. 4 Cir. 10/21/15),
177 So.3d 1074, 1078 (citing Berg v. Zummo,
2000-1699, p. 13, n. 5 (La. 4/25/01), 786 So.2d 708, 716, n.
reviewed the particular jury instruction in the context of
the jury instructions as a whole, we do not find that
"plain and fundamental" errors exist. Moreover,
Yokum fails to explain how the jury instruction at issue is
an incorrect statement of law. Consequently, Yokum is
precluded from raising this assignment of error because he
did not object to the jury instruction regarding
uncontroverted evidence at trial.
also argues that the district court erred by failing to
instruct the jury regarding spoliation and adverse inference.
During discovery, Yokum took depositions of Funky 544
pursuant to La. C.C.P. art. 1442, through its representatives
Jude Marullo ("Marullo") and Anthony
D'Arensbourg ("D'Arensbourg"). Marullo is
the managing member of Funky 544, and D'Arensbourg is its
general manager. Both Marullo and D'Arensbourg denied in
their depositions that Funky 544 had any policy to record
sound measurements taken by the nightclub staff or that any
Funky 544 records existed of such sound measurements.
According to Marullo and D'Arensbourg, nightclub staff
were using a sound reader to determine sound levels but were
not writing down or recording any measurements. Subsequently,
Funky 544 disclosed to Yokum that, for a limited period of
time, the sound measurements taken by Funky 544 employees in
the doorway of the nightclub were written on "band
production sheets;" however, Funky 544 did not retain
filed a motion for contempt, and on June 19, 2014, the
district court found that "spoliation did occur, "
granted the motion against Funky 544, and denied the motion
as to Marullo. The district court ordered that Funky 544 is
"estopped from disputing the sound readings made by
[Yokum's] expert from the doorway" of the nightclub.
Thereafter, Funky 544 filed a motion for reconsideration. On
August 29, 2014, the district court granted the motion,
finding that the "improperly destroyed sound readings
taken from the doorway of Funky 544... has not harmed or
prejudiced" Yokum. Nevertheless, the district court
determined that Yokum was denied access to these readings and
ordered that Funky 544 "will not be allowed to produce
any of the band production sheets at the trial of this
to trial, Yokum requested the following jury instruction:
The court instructs the jury that, with regard to inferences
to be drawn from a party's destruction of evidence, the
test is whether the court can draw from fact that a party has
destroyed evidence and that the party did so in bad faith. If
you, the jury, find that the defendant intentionally hid or
destroyed evidence, then you may infer that evidence would be
unfavorable to defendants.
district court did not include the proposed instruction or
any other instructions on the legal standard for spoliation
or adverse inference. Yokum objected to the exclusion of its
proposed instruction before the jury received its
theory of spoliation of evidence refers to the
'intentional destruction of the evidence for the purpose
of depriving the opposing parties of its use.'"
Everhardt v. Louisiana Dep't of Transp. &
Dev., 2007-0981, p. 7 (La.App. 4 Cir. 2/20/08), 978
So.2d 1036, 1044 (citations omitted). "A court may
either exclude the spoiled evidence or allow the jury to
infer that the party spoiled the evidence because the
evidence was unfavorable to that party's case."
Carter v. Hi Nabor Super Mkt., LLC, 2013-0529, pp.
8-9 (La.App. 1 Cir. 12/30/14), 168 So.3d 698, 704-05
(internal citations omitted) (emphasis in original), the
First Circuit Court of Appeal explained:
…although an adverse inference jury instruction is a
common sanction imposed, it is merely one of the possible
sanctions that a trial court may impose when
evidence has been destroyed or rendered unavailable by a
party. "Under the federal and state rules of civil
procedure that regulate discovery procedures, courts have
broad discretion to impose a variety of sanctions against a
party that fails to produce evidence in violation of the
discovery rules." [Footnote omitted.] The purpose of
such sanctions is to achieve evidentiary balance, fairness,
and justice, as well as to deter improper conduct. While
different sanctions may be appropriate under the facts of a
given case, "courts agree that [a court] should impose
the least severe sanction necessary to remedy prejudice to
the non-spoliating party." [Footnote omitted.] Any
sanction to be imposed by the trial court should be tailored
to the particular facts existing in the case.
The range of possible sanctions include dismissing a case,
rendering a default judgment, striking pleadings, striking a
claim or defense, and excluding evidence. A determination as
to what sanction is appropriate in a particular case is a
matter within the province of the trial court, depending upon
the facts present. As with other evidentiary and discovery
rulings, the trial court has much discretion in deciding
which sanction, if any, to impose. The appellate standard of
review for a trial court's evidentiary ruling on this
issue is whether the trial court abused its broad discretion.
See also La. C.C.P. art. 1471 (providing as an
available discovery sanction an "order refusing to allow
the disobedient party to support or oppose designated claims
or defenses, or prohibiting him from introducing designated
matters in evidence").
matter before us, the district court exercised its wide
discretion in imposing discovery sanctions to preclude Funky
544 from refuting sound readings by Yokum's expert in the
doorway of the nightclub, and excluded the band ...