Louisiana Workers' Compensation Corporation VS Lucien Gauff
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 1209 r LOUISIANA WORKERS COMPENSATION CORPORATION VERSUS LUCIEN J GAUFF JR Y Judgment Rendered JUL 2 s aon On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No 559 090 Honorable Timothy E Kelley Judge Paul Michael Fryday Louisiana Workers Compensation Chad S Baton Berry Rouge Daniel E Darryl Attorney for PlaintiffAppellee Louisiana Becnel Jr J Becnel Corporation Attorney for Defendant Appellant Lucien Gauff Reserve Louisiana BEFORE WHIPPLE MCDONALD AND McCLENDON JJ i McCLENDON J This is an appeal from a summary judgment in favor of plaintiff Louisiana Workers Compensation Corporation LWCC and against the defendant Lucien J Gauff Jr Gauff For the following reasons we affirm LWCC provided workers compensation insurance to Gauff a brick mason through a continuous annual policy bearing number 106661 effective July 1 2004 The policy was cancelled on July 1 2006 Following audits of the account an invoice indicating a final balance due of 37 was issued by LWCC on September 11 00 419 2006 On September 11 2007 LWCC filed suit against Gauff for the 37 00 419 amount alleging that he had failed to pay the entire premium owed for the insurance coverage provided It also claimed a contractual right to reasonable attorney fees and any costs incurred in the collection of any unpaid premium amounts A motion for an extension of time within which to plead was filed by Gauff on October 15 2007 and on October 25 2007 the trial court granted an additional fifteen days within which to file responsive pleadings In January 2008 with no further pleadings filed LWCC filed a motion for preliminary default which was signed by the trial court on January 14 2008 Thereafter on May 29 2008 Gauff filed an answer as well as exceptions of no cause of action and of vagueness and ambiguity but he did not set the exceptions for hearing On August 12 2008 LWCC filed a motion to set the exception of no cause of action for hearing and on December 15 2008 the exceptions were withdrawn On September 10 2009 LWCC filed its motion for summary judgment submitting therewith the insurance policy the premium obligations endorsement an invoice showing the final balance a policy summary statement three affidavits regarding the correctness of the account one of which included audits of the account and the application for workers compensation Gauff filed an opposition to the motion contending that he paid all premiums that were due and therefore there were genuine issues of material fact but he filed no countervailing affidavit or other evidence to oppose the motion 2 The motion for summary judgment was set to be heard on Monday November 16 2009 On the afternoon of Friday November 13 2009 Gauff faxed an affidavit to opposing counsel and to the court However at the hearing LWCC indicated that it had not seen the affidavit prior to appearing in court and objected to its admission as untimely since opposing affidavits are required to be served at least eight days prior to the hearing See LSA C art 9666 Louisiana Rules for District Courts Rule 9 P The court inquired as to just cause for the failure to follow the procedural rule and counsel for Gauff stated that he had difficulty in getting in touch with his client Apparently not considering the response sufficient to constitute just cause the trial court sustained the objection and the affidavit was not admitted although the court allowed it be proffered Thereafter a request for continuance was denied Without a countervailing affidavit and with a determination by the trial court that there was sufficient evidence of its claim summary judgment was granted Judgment was signed on December 1 2009 in favor of LWCC and against Gauff in the amount of 00 419 37 together with legal interest attorney fees and costs Gauff suspensively appealed alleging two assignments of error 1 the trial court erred in granting summary judgment in favor of the plaintiff and 2 the trial court erred in refusing to grant a continuance in this matter DISCUSSION A motion for summary judgment is a procedural device used to avoid a fullscale trial where there is no genuine factual dispute Sanders v Ashland Oil Inc 96 1751 p 5 La 1 Cir 6 696 So 1031 1034 writ denied 97 1911 La App 97 20 2d 97 31 10 703 So 29 2d It should only be granted if the pleadings depositions answers to interrogatories and admissions on file together with any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law LSAC art 9666 Horn v LaCoste 00 0965 p 5 P C App La 1 Cir 6 793 So 319 323 writ denied 01 2615 La 12 804 01 22 2d 01 14 2d So 633 Courts of appeal review summary judgments de novo under the same criteria that govern the trial court consideration of whether summary judgment is s 3 appropriate Anglin v Anglin 05 1233 p 5 La 1 Cir 6 938 So 766 App 06 9 2d 769 In the matter before us the trial court considering the evidence before it found that LWCC was entitled to judgment as a matter of law It did not consider the affidavit of Gauff which after questioning to determine whether good cause existed for the untimely filing it found was inadmissible for failure to comply with the eightday rule The court actually questioned counsel regarding the delay The Court It is supposed to be eight days Why was it not submitted eight days ahead of time Is there any good cause for not Counsel for Gauff Judge I had a difficult time getting in touch with my client He old seventythree He does have a cellphone but he s t doesn check it I actually went to his house and dropped a copy of their motion off about a week and a half two weeks ago I kept calling and finally got him to come The Court I hope it was more than a week and a half ago because eight days is almost a week and a half ago Counsel for Gauff Well one week and a day yeah I tried to get in touch with him before that It was hard to get in touch with him but I did We find that the trial court did not abuse its discretion in refusing to admit the affidavit into evidence 272 per curiam See Guillory v Chapman 10 1370 La 9 44 So 10 24 3d Accordingly based on our de novo review and considering the properly submitted evidence we find no error in the summary judgment in LWCC s favor However Gauff also argues that the trial court erred in denying his request for a continuance A trial court has discretion to grant a continuance if the mover shows good grounds therefor See LSA C art 1601 P A trial court ruling regarding a s continuance will not be disturbed on appeal in the absence of a clear showing of abuse of discretion Appellate courts interfere in matters such as control of a trial court s docket case management and determining whether a motion for continuance should be granted only with reluctance and in extreme cases See Bozarth v State of Louisiana LSU Medical Center 091393 p 6 La 1 Cir 02 35 So App 10 12 3d The record reflects that this line of questioning by the court continued for some time 4 316 321 Perkins v Willie 01 0821 pp 2 3 La 1 Cir 2 818 So App 02 27 2d 167 169 In requesting the continuance the following exchange took place Counsel for Gauff And Judge maybe I can continuance of the actual motion so we can get you move for a know get an I just s he very adamant that he paid what he was supposed to pay and I t wouldn want it not to be considered you know the problem is just ve we received probably two or three first circuit and supreme court The Court Well I understand I rulings just in the last year stressing that the eightday rule is to be enforced So while a couple years ago I would have said you know let s put this on another day let see what ya figure out what your s II discovery needs to be you known for a while You didn have the ve t affidavit into the court within the proper time He is entitled to the benefit of a procedural law that afforded him Emphasis added s Thus Gauff only stated reason for requesting the continuance was to avoid the s eightday rule and allow the refiling of his affidavit Despite some of the comments made by the trial court the court clearly considered whether just cause existed for the late filing of the affidavit and considered counsel alleged difficulties in getting in touch s with his client The motion was pending for over two months and a continuance would have been prejudicial to LWCC We cannot say that the trial court abused its discretion For the above reasons the December 1 2009 judgment of the trial court is affirmed Costs of this appeal are assessed against Lucien J Gauff Jr AFFIRMED 5 STATE OF LOUISIANA LOUISIANA WORKERS COMPENSATION CORPORATION COURT OF APPEAL VERSUS FIRST CIRCUIT LUCIEN GAUFF 2010 CA 1209 McDONALD J DISSENTING The trial court found that LWCC was entitled to judgment as a matter of law It did not consider the affidavit of Gauff finding that it was not admitted in compliance with the eight day rule Gauff argues that the evidence was insufficient to grant the motion for summary judgment It is important to note that he does not challenge or assign as error the failure of the trial judge to consider his affidavit that was filed on the afternoon of the last working day prior to the hearing well out of compliance with the eight day rule Rather he suggests that there are too many genuine issues of material fact such that the motion should have been denied I agree with the majority that the trial court did not abuse its discretion in refusing to admit the affidavit into evidence Considering there is no evidence in opposition to the motion to summary judgment I agree that there was no error in granting the motion for summary judgment Gauff s other assignment of error is that the trial court erred in denying his request for a continuance Courts are given great latitude in controlling their docket and the decisions affecting their docket The failure to grant a motion for a continuance is well within the vast discretion afforded the trial judge Ostensibly Gauff sought the continuance so he could cure his failure to file his opposition at least eight days prior to the hearing Even though he does not challenge the failure 1 Bosarth v State of Louisiana LSUMedical Center 35 So 316 20091393 La App 1 Cir 3d 10 12 02 State v Ford 24 So 3d 249 20090392 La App 4 Cir 09 21 10 to consider his offerings Gauffs motion for a continuance is designed to remedy this situation While the trial court is granted great latitude in docket control including granting or not granting a continuance it still must exercise this discretion in one way or the other In this case it appears that the trial court was of the opinion that it lacked any discretion and was required to deny the filing of the defendant s affidavit and to deny a continuance In its oral reasons the court stated he T problem is we received probably two or three first circuit ve and supreme court rulings just in the last year stressing that the eight day rule is to be enforced So while a couple years ago I would have said you know let put this on another day let see what ya s s llfigure out what your discovery needs to be emphasis added It is unclear whether the trial court would have granted a continuance in this matter if it thought it was within its discretion to do so It is an erroneous understanding of the law for a trial court to believe that by requiring affidavits to be submitted timely as required by the code of civil procedure rule it was prohibited from granting a continuance For these reasons I respectfully dissent and would remand the matter for further consideration by the trial court 2
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