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Bernal v. Crescent Foundations, LLC

Court of Appeals of Louisiana, Fifth Circuit

February 27, 2019



          COUNSEL FOR PLAINTIFF/APPELLEE, DANIEL J. BERNAL, JR. Joseph G. Albe, Jr. Scott A. Ledbetter


          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg


         Defendants, Crescent Foundations, L.L.C. and Paul C. Austin, appeal the trial court's April 16, 2018 Judgment, which found defendants jointly and solidarily liable to plaintiff, Daniel J. Bernal, Jr., for damages totaling $43, 000.00, plus judicial interest from the date of judicial demand and costs. On appeal, defendants raise the following assignments of error: 1) the trial court erred and abused its discretion by proceeding to trial without defendants because the parties reached a settlement prior to trial; 2) the trial court erred in awarding damages resulting from alleged fraudulent criminal charges defendants reported against plaintiff because the allegations were not included in plaintiff's petition and are not supported by the evidence; 3) the damages awarded for the replacement of plaintiff's tools and trailer were excessive; and 4) the trial court erred by trying this matter prior to resolving pending dilatory and peremptory exceptions filed by defendants.

         For the reasons stated more fully below, we affirm the trial court's judgment.


         On May 18, 2015, plaintiff filed a petition for damages against defendants seeking to recover damages for tools and a trailer he owned, because defendants refused to allow him to retrieve these items from their business premises. Plaintiff alleged that he used the tools and trailer to perform his duties as a diesel mechanic for Crescent until he sustained a work-related injury on March 18, 2015. Plaintiff first attempted to retrieve his property on April 17, 2015. Plaintiff contends he obtained permission to enter the premises from Crescent's project manager, Andrew. Plaintiff noticed the trailer was damaged and Andrew told him this occurred when Crescent employees attempted to load equipment onto the trailer which exceeded the trailer's weight limit.

         Plaintiff then began loading his tools into his truck when Crescent's manager/owner, Paul C. Austin, arrived and threatened to have plaintiff arrested for theft and trespassing unless he removed the tools from his truck. Plaintiff alleged that Austin also verbally threatened him for retaining an attorney and filing a workers' compensation claim against Crescent due to his work-related injury. Plaintiff unloaded his truck and left without his tools and trailer. Plaintiff alleged that he made subsequent requests to retrieve his personal property, which Austin refused. Austin also threatened to have plaintiff arrested for theft and trespassing if he attempted to retrieve his belongings again.

         Defendants filed exceptions and an answer in response to plaintiff's petition for damages. Austin, individually, filed a dilatory exception of vagueness or ambiguity of the petition alleging that, while the petition stated Crescent was vicariously liable for plaintiff's damages, the petition failed to "affirmatively state Defendant Austin is liable for the damages therein alleged." Austin alleged that due to plaintiff's failure to include this specific language in the petition, he could not determine whether plaintiff sought to hold him personally liable.[1] Austin and Crescent also raised exceptions arguing the petition was vague and ambiguous because it contained open-ended allegations that Crescent is liable for "[a]ny and all other acts of negligence which will be shown at the trial hereof" and sought damages including "[a]ny and all other relief deemed appropriate under the premises of the case as presented at trial hereof." Defendants asked the trial court to strike these allegations as impermissibly vague.

         Both defendants also raised exceptions of no right and no cause of action in response to plaintiff's request for punitive damages and attorney's fees in his concluding prayer for relief. Defendants argued that such relief was not warranted based on the factual allegations contained in plaintiff's petition. The trial court set the exceptions for hearing on September 8, 2015. The minute entry from that date states the exceptions were continued without date by agreement of the parties. Defendants did not move to reset the exceptions for hearing.

         On May 15, 2017, plaintiff moved to set the matter for trial. In response, the trial court set a pre-trial conference on July 13, 2017, and ordered the parties to submit a pre-trial order prior to the conference. Plaintiff was the only party to submit a pre-trial order. In his filing, he explained that after he filed his petition, defendants allowed him to retrieve his property on November 15, 2015. He stated that when he went to Crescent's premises, he learned that Austin "cut up the Plaintiff's damaged trailer for scrap and disposed of it." He further alleged that most of his tools were damaged and unusable because they were left outside, unprotected and exposed to the weather. Plaintiff also alleged that Austin followed through on his prior threats and pursued criminal charges against him for fraud and theft in August 2015. Plaintiff stated that he was arrested and held in jail for 24 hours. He alleged that he incurred attorney's fees and missed time for work due to the baseless criminal charges.

         Following the pre-trial conference, the trial court issued an order setting trial on April 9, 2018 at 9:00 a.m., and further ordered that the evidence at trial would be limited to the witnesses and exhibits listed by the parties in the pre-trial order.

         On the morning of April 9, 2018, plaintiff's counsel appeared for trial. At the beginning of the transcript from these proceedings, the trial court noted it was 10:14 a.m. and that neither defendants nor their counsel appeared for trial at 9:00 a.m. The trial court further noted that numerous attempts were made to contact defense counsel.

         Plaintiff's counsel informed the court that he spoke with an assistant in defense counsel's office, who indicated counsel was unavailable due to another court proceeding in Baton Rouge. The assistant also stated that defense counsel claimed he told plaintiff's counsel he was not going to appear on the morning of trial. Plaintiff's counsel responded that this was the "first I'd heard of it," and further represented that he told defense counsel the parties would all appear on the morning of trial to sign a consent judgment. Plaintiff's counsel explained that several days prior to trial, the parties reached an agreement on a settlement amount of $17, 500.00, but did not reach an agreement on the date defendants would pay the settlement to plaintiff. Plaintiff's counsel further explained that he suggested defendants pay the settlement amount by April 13, 2018, and was willing to allow additional time. However, he never heard from defense counsel regarding his agreement to the date when defendants would pay the settlement amount. Plaintiff's counsel also emphasized that any settlement was conditioned on the parties appearing in court on the morning of trial to sign a consent judgment. The trial court determined the parties had not confected a settlement agreement and instructed plaintiff's counsel to proceed with the trial. The trial court noted again during the trial at precisely 11:51 a.m., that defense counsel had not yet responded to messages the court left with his office.

         After hearing testimony and reviewing documents entered into evidence, the trial court entered judgment in favor of plaintiff and against defendants finding them jointly and solidarily liable for the following damages:

1) $24, 000.00 for the replacement value of plaintiff's tools;
2) $6, 500.00 for the value of plaintiff's trailer destroyed by defendants;
3) $2, 500.00 for the reimbursement of attorney's fees incurred by plaintiff as a result of the fraudulent criminal charges defendants pursued; and
4) $10, 000.00 for the two days of incarceration sustained by plaintiff as a result of the fraudulent criminal ...

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