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Relan v. State

Court of Appeals of Louisiana, Fifth Circuit

December 19, 2018

ZACHARY D. RELAN
v.
THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF HEALTH AND HOSPITALS AND LINDSAY L. PANTALEO

          ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 66, 434, DIVISION "B" HONORABLE E. JEFFREY PERILLOUX, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, ZACHARY D. RELAN Daniel J. Mackel, Jr.

          COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT, THE STANDARD FIRE INS CO (2ND APPELLANT) John W. Martinez

          COUNSEL FOR DEFENDANT/APPELLEE, STATE OF LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS AND LINDSAY L. PANTEALEO Jeffrey M. Landry W. Bartlett Ary

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.

          JOHN J. MOLAISON, JR. JUDGE

         Plaintiff/Appellant, Zachary Relan, and Intervenor, The Standard Fire Insurance Company, appeal the trial court's ruling that denied their respective motions for new trial in this automobile accident case. For the reasons that follow, we affirm.

         PROCEDURAL HISTORY

         On October 14, 2013, appellant, Zachary Relan ("Relan") was a passenger in a vehicle traveling on U.S. Highway 51 though St. John Parish for the purpose of his employment with Shuffle Master, Inc., when that vehicle was struck by a car driven by Lindsay L. Pantaleo ("Pantaleo"), who was acting within the course and scope her employment with the State of Louisiana through the Department of Health and Hospitals ("DHH"). Relan timely filed a petition for damages on April 17, 2014, in the Fortieth Judicial District Court, against DHH and Pantaleo. On July 8, 2014, Relan filed a motion for partial summary judgment on the issue of the defendants' liability for the accident at issue, which the trial court granted on September 10, 2014. On October 20, 2014, The Standard Fire Insurance Company ("Standard") filed a petition for intervention alleging that, as Shuffle Master, Inc.'s workers compensation insurer, it had paid benefits to Relan and was entitled to reimbursement.[1] After several continuances, a jury trial in the matter, solely on the issue of damages, began on August 14, 2017, and lasted through August 16, 2017. At the conclusion of trial, the jury determined that Relan had not suffered any injuries as a result of the October 14, 2013 accident, and accordingly did not award any damages.

         On August 30, 2017, Relan filed a motion for new trial which alleged, in summary, that the defendants had omitted a document entitled "New Problem Questionnaire" from a joint exhibit of Relan's medical records introduced at trial. Relan argued in his motion that the exclusion of that particular document helped to bolster the defendants' argument that Relan had not told his medical providers for his October 14, 2013 accident, that he had also undergone treatment for a 2001 car accident. On September 6, 2017, Standard filed a motion for new trial that adopted Relan's arguments. Both motions for a new trial were denied following a hearing on September 27, 2017. Relan thereafter sought a devolutive appeal on November 14, 2017, which was granted on that same date. On November 21, 2017, Standard filed its own motion for a devolutive appeal, which was granted that day.

         ASSIGNMENTS OF ERROR[2]

         In their first assignment of error, appellants argue that the trial court abused its discretion and denied Relan a fair trial when it allowed the defendants-appellees to add the retained medical expert witness, Christopher Cenac, Sr., M.D. after the discovery deadline date. In a related issue, appellants assert that Relan was prevented from conducting the deposition of Dr. Cenac before trial.

         LAW AND ANALYSIS

         In the instant case, the record indicates that several pre-trial scheduling orders were issued by the trial court which pertained to different jury trial settings. The first scheduling order, for a proposed April 13, 2015 jury trial date, provided that exhibit and witness lists "shall be exchanged within 90 days prior to trial" by January 19, 2015. All discovery was ordered to be completed "60 days prior to trial" by February 12, 2015. The second scheduling order, for a proposed December 5, 2016 jury trial date, also had the 90-day and 60-day deadlines; however, no specific dates were provided in that order. A third scheduling order, which anticipated a May 8, 2017 jury trial, allotted only 30 days, until March 17, 2017, to complete exhibit and witness lists, and 60 days prior to trial to complete discovery, March 9, 2017.

         On May 5, 2017, Relan filed an unopposed motion to continue and reset jury trial on the merits, requesting an August 14, 2017 trial date. The record does not indicate that a new scheduling order was issued in relation to the August trial setting deadlines for the completion of witness lists and discovery. On June 22, 2017, DHH filed, by fax, its fourth supplemental and amended witness exhibit list, which included Dr. Christopher E. Cenac, Sr. as a medical expert witness.[3] No formal objection to the timeliness of DHH's supplemental filing by appellants appears in the record, nor does an objection to Dr. Cenac's inclusion on the witness list appear to have been made. Further, on the eve of trial, appellants had no pending motions in limine pertaining to the exclusion of Dr. Cenac's testimony.

         Most importantly, appellants did not object to Dr. Cenac's testimony at the time of trial.

         Error may not be predicated on a ruling that admits evidence unless a contemporaneous objection was made, and the ruling affected a substantial right of the party. La. C.E. art. 103(A). For an issue to be preserved for review, a party must make a timely objection and state the specific ground for the objection. The reasons for the objection must be brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. Willis v. Noble Drilling (US), Inc., 11-598 (La.App. 5 Cir. 11/13/12), 105 So.3d 828, 835-36. "It is well established that when a party fails to contemporaneously object to the introduction of objectionable evidence, that party waives the right to complain of the issue on appeal." Aisola v. Beacon Hosp. Mgmt., Inc., 13-1101 (La.App. 4 Cir. 4/2/14), 140 So.3d 71, 78. On appeal, an appellant is limited to the grounds for objection that he articulated in the trial court and a new basis for the objection may not be raised for the first time on appeal. State v. Grimes, 092 (La.App. 5 Cir. 5/26/09), 16 So.3d 418, 424, writ denied, 09-1517 (La.3/12/10), 28 So.3d 1023.

         Accordingly, in this case, where the record before us does not reflect that appellants objected to Dr. Cenac's testimony either before trial or during trial, we find that this issue is not properly before us on appeal.

         Dr. Cenac's Deposition

         In a related argument, appellants assert that the trial court's alleged error of allowing DHH to untimely add Dr. Cenac to its witness list was compounded when the trial court would not allow them to depose Dr. Cenac prior to trial.[4] Our careful review of the record in this matter does not show that Relan noticed the deposition of Dr. Cenac, or otherwise sought leave from the trial court to depose prior him prior to trial.

         A Court of Appeal is a court of record, which must limit its review to evidence in the record before it and render its judgment upon the record on appeal. LSA-C.C.P. art. 2164; Hover v. Farber, 05-613 (La.App. 5 Cir. 1/31/06), 922 So.2d 637, 638. The record on appeal is that which is sent by the trial court to the appellate court and includes pleadings, court minutes, transcripts, jury instructions, judgments, and other rulings, unless otherwise designated. LSA-C.C.P. art. 2128; Reed v. Peoples State Bank of Many, 36, 531 (La.App. 2 Cir. 3/5/03), 839 So.2d 955, 958. Memoranda and exhibits which were not filed into evidence in the trial court are not part of the record on appeal. Id.

         It is well-settled that the appellate briefs of the parties are not part of the record on appeal, and this Court has no authority to consider facts referred to in appellate briefs if they are not in the record that is lodged in the appellate court. Austin v. State Farm Ins. Co, 06-808 (La.App. 5 Cir. 3/13/07), 956 So.2d 13, 15, writ denied, 07-0761 (La.6/1/07), 957 So.2d 178. If a party's brief asserts facts which are not in the record and refers to exhibits which have not been filed into evidence in the trial court, an appellate court may not consider those memoranda or exhibits, since they are outside the record. LSA-C.C.P. art. 2164; Reed, 36, 531 at 5, 839 So.2d at 958; Ray Brandt Nissan, Inc. v. Gurvich, 98-634 (La.App. 5 Cir. 1/26/99), 726 So.2d 474, 476.

         Here, appellants' briefs refer to facts which are not in the record before us. Accordingly, appellants' assignment of error pertaining to ...


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