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Yokum v. Rhythm

Court of Appeals of Louisiana, Fourth Circuit

May 23, 2018


          APPEAL 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 PLAINTIFFS/APPELLANTS.

          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 DEFENDANTS/APPELLEES.

          (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins).

          Joy Cossich Lobrano Judge.

         In this 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.

         Much of 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.

         The 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 of error.

         Jury Instructions

         Yokum contends that the district court erred in two respects in its jury instructions:

• 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

         The 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.

         Yokum requested the following jury instruction on uncontroverted evidence:

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.

         The 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.

         On 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.

         We 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 jury.

         "Nevertheless, 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. 5).

         Having 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.

         Yokum 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 those records.

         Yokum 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 matter."[1]

         Prior 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.

         The 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 instructions.

         "The 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." Id.

         In 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").[2]

         In the 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 ...

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