Thomas Gorman VS Lieutenant Austin Miller, Deputy Andrew, Deputy Tom Floyd and Deputy Robert Redmond

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 0412 THOMAS GORMAN VERSUS LIEUTENANT AUSTIN MILLER DEPUTY ANDREW DEPUTY TOM FLOYD AND DEPUTY ROBERT REDMOND moo ka 251Y Judgment Rendered On Appeal from the 20th Judicial District Court In and for the Parish of East Feliciana State of Louisiana Trial Court No 41248 The Honorable George H Ware Jr Judge Presiding t Donna U Grodner Attorneys for PlaintiffAppellant Marcus J Plaisance Thomas Gorman Baton Rouge Louisiana DefendantsAppellees In Proper Person Lieutenant Austin Miller Deputy Andrew Deputy Tom Floyd Deputy Robert Redmond Clinton Louisiana BEFORE WHIPPLE C PARRO KUHN GUIDRY PETTIGREW J McDONALD WELCH HIGGINBOTHAM CRAIN AND THERIOT JJ TTtP T tAl v The Hon f Page McClendon and S s P on Ernest Drake Jr lso t e ele ro matter V L UA4 kflfL 1c CAf G M i G CI 1C U M elk uA aS Crin h a i t s u z okls n 1124 tr 017 H aftc v consideration a5 Sn Se e IF CRAIN J Thomas Gorman appeals a final judgment dismissing his personal injury suit with prejudice He also seeks review of the trial court interlocutory rulings s excluding certain evidence and finding that Gorman failed to meet his burden of proof to confirm a preliminary default judgment against the defendants After en Banc consideration we reverse the judgment and remand this matter for further proceedings FACTS AND PROCEDURAL HISTORY Gorman instituted this suit against Lieutenant Austin Miller Deputy Andrew also referred to as Deputy Andrew Duncan Deputy Tom Floyd and Deputy Robert Redmond In his petition Gorman alleges that on March 31 2011 he was arrested following a traffic stop and was detained at the East Feliciana Parish jail He alleges that while detained in jail the defendants verbally and physically attacked him causing serious injuries Gorman seeks damages under state and federal law including 42 U C S 1983 The defendants did not answer Gorman suit On Gorman motion which s s alleged personal service on the defendants the trial court entered a preliminary default judgment At the hearing to confirm the preliminary default judgment Gorman offered proof of his demand through his own testimony medical records two affidavits and photographs of his injuries The trial court excluded the medical records and affidavits and determined that Gorman testimony was not s credible The trial court then concluded that Gorman had not met his burden of proof to confirm the preliminary default judgment and rendered judgment denying the confirmation of default and dismissing Gorman ssuit with prejudice Gorman appeals challenging the trial court exclusion of the medical s records and affidavits the trial court refusal to confirm the preliminary default s judgment and the dismissal of his suit with prejudice 2 DISMISSAL BY TRIAL COURT This case presents for review the appropriateness of the trial court dismissing the plaintiff scase with prejudice upon finding that the plaintiff failed to establish a prima facie case as required under Louisiana Code of Civil Procedure article 1702A Sitting en bane we find such action to be in error and in doing so choose not to follow this court previous ruling in State Through Dept of Social s Services v R 93 2312 La App 1 Cir 10 644 So 2d 853 H 94 7 sCode of Civil Procedure delineates the time delay within which Louisiana a defendant must file his answer after service of the plaintiffs suit upon him If the defendant does not comply the plaintiff may move for entry of a default judgment also called a preliminary default judgment against the defendant La Code Civ Pro art 1701A see also Corte v Cash Technologies Inc 020846 La App 1 Cir 4 843 So 2d 1162 The Code of Civil Procedure further sets 03 2 forth the method by which a plaintiff can have the preliminary default judgment confirmed Specifically the plaintiff must present the trial court with proof of the demand sufficient to establish a prima facie case La Code Civ Pro art 1702A The judgment on appeal dismissed Gorman suit for failure to establish a s prima facie case The trial court acted sua sponte as Gorman did not move to voluntarily dismiss his suit and the defendants having made no appearance in this proceeding presented no motion for involuntary dismissal of the suit In State Through Dept of Social Services v R the trial court dismissed H the plaintiff suit after the plaintiff failed to offer evidence sufficient to have a s 2 While this appeal was pending Article 1702A was amended to require that the proof submitted to establish a prima facie case be admitted into the record prior to confirmation See 2013 La Acts No 78 1 Comment a to the revised article explains that The change follows Louisiana Constitution article 1 section 191 which grants litigants the right of judicial review based upon a complete record of all evidence upon which the judgment is based The amendment is also consistent with jurisprudence holding that to prevent reversal on appeal both the plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence that establishes a prima facie case 9rias v Stolthaven LLC 9 So 815 820 La 2009 3 preliminary default judgment confirmed In reviewing the propriety of the trial s court action this court noted that the plaintiff had not requested that the matter be held open for the submission of additional evidence nor requested that the case be reopened for additional evidence after the trial court ruling or even suggested s that additional evidence was available State Through Dept of Social Services 644 So 2d at 855 This court found that i is not the duty of the trial court to t assess the merits of a litigant claim and to then determine on its own motion that s the litigant is deserving of a second chance to prove his case Id This court concluded that the plaintiff had no right to demand another opportunity to do so and the trial court had no duty to offer such an opportunity to the plaintiff particularly when the plaintiff had not requested it or indicated that additional proof would be offered Id The trial court judgment dismissing the plaintiff s s suit was affirmed Upon en bane consideration and in light of current Louisiana law and jurisprudence we now find to the contrary The analysis of this same issue by the Fourth Circuit Court of Appeal in Dahan Novelties Co LLC v Ohio Cas Ins Co 10 0626 La App 4 Cir 10 51 So 3d 129 is persuasive In Dahan 20 Novelties Co LLC the court of appeal reversed the trial court judgment s dismissing a plaintiff suit on its own motion after finding the plaintiff had failed s in his burden to confirm a preliminary default judgment explaining Our procedural law confers upon a trial court only very limited authority to dismiss a lawsuit on its own motion A trial court on its own may notice for example peremption or the failure to disclose a cause of action and dismiss the lawsuit See La C arts 927 B P and 934 Also when no party appears for trial the trial court may dismiss an action on its own motion La C art 1672 A P 2 But these authorized circumstances do not apply in this case Except in such circumstances a trial judge power to dismiss cannot be s exercised on his own motion but requires the application of a party Dahan Novelties Co LLC 51 So 3d at 135 The court further recognized that under Louisiana law voluntary dismissal of a plaintiff s suit requires a motion by 4 the plaintiff and involuntary dismissal requires a motion by a party La Code Civ Pro arts 1671 Co LLC 51 So 3d at 135 The and 1672 Dalian Novelties trial court is not a party to the action and thus cannot supply the motion for involuntary dismissal Wooley v Amcare Health Plans ofLouisiana Inc 061146 La App 1 Cir 1 952 So 2d 720 729 07 17 We agree that if the plaintiff fails to present sufficient evidence to confirm a preliminary default judgment and no party present at the confirmation hearing moves for dismissal of the plaintiff suit the trial court is effectively prevented s from dismissing the plaintiffs suit on its own motion See Dalian Novelties Co LLC 51 So 3d at 136 see also Griffin v Pecanland Mall Assoc Ltd 535 So 2d 770 La App 2 Cir 1988 In those circumstances the trial court authority is s limited to a denial of the request to confirm the preliminary default judgment To the extent it holds otherwise we overrule State Through Dept ofSocial Services v H R supra The trial court sjudgment dismissing Gorman suit with prejudice is s reversed DENIAL OF REQUEST TO CONFIRM PRELIMINARY DEFAULT JUDGMENT When an unrestricted appeal is taken from a final judgment such as the trial s court dismissal of the plaintiff suit the appellant is entitled to additionally seek s review of all adverse interlocutory rulings Landry v Leonard J Chabert Med Ctr 02 1559 La App 1 Cir 5 858 So 2d 454 461 n writs denied 03 03 14 4 1748 03 1752 La 10 855 So 2d 761 03 17 R R Steel Erectors v Watson 01 1322 La App 3 Cir 3 809 So 2d 1228 1230 Griffin 535 So 2d at 773 02 6 Therefore we consider Gorman arguments that the trial court erred in finding s that he failed to meet his burden of proof to have the preliminary default judgment confirmed after erroneously excluding the offered medical records and affidavits 5 which along with plaintiffs testimony and his photographs comprised the entirety of the evidence presented to the trial court Confirmation of a preliminary default judgment is similar to a trial with the being defendant absent The plaintiff is required to present admissible and competent evidence establishing a prima facie case proving both the existence and the validity of the claim as though the defendant denied each allegation of the petition Arias v Stolthaven New Orleans L 081111 La 5 9 So 3d C 09 815 820 Northshore Regional Medical Center L v Dill 12 0850 La App 1 C Cir 3 115 So 3d 475 480 writ denied 13 0866 La 5 118 So 3d 13 22 13 31 396 Simply stated in order to confirm a default the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits Arias 9 So 3d at 820 In doing so the plaintiff must adhere to the rules of evidence despite there being no opponent to urge objections Arias 9 So 3d at 820 Except as provided by law inadmissible evidence may not support a default judgment Arias 9 So 3d at 820 citing 19 Frank L Maraist Civil Law Treatise Evidence and Proof 1 at 5 2d ed 2007 The standard of review for a trial court evidentiary rulings is abuse of s discretion the trial court ruling will not be disturbed unless it is clearly s erroneous Riverside Recycling LLC v BWI Companies Inc of Texas 12 0588 La App 1 Cir 12 112 So 3d 869 874 28 The trial court excluded Gorman certified medical records because no s representative from the medical institutions was available for the court to examine regarding the diagnoses and treatment information contained in the records or to testify that the records were kept in the normal course of business and were true and correct This ruling was in error Properly certified medical records are admissible in establishing a prima facie case to confirm a default in a delictual action without accompanying oral medical testimony or sworn narrative report 6 See Oliver v Cal Dive International Inc 02 1122 La App 1 Cir 4 844 03 2 So 2d 942 945 writs denied 03 1230 and 03 1796 La 9 853 So 2d 638 03 19 and 648 Assamad v Percy Square and Diamond Foods L 071229 La App C 1 Cir 7 993 So 2d 644 650 writ denied 082138 La 11 996 So 08 29 08 10 2d 1077 Consequently the trial court abused its discretion in excluding the medical records on the basis that no representatives from the medical institutions were present to offer testimony The trial court also excluded the affidavits of Daniel McKenzie and Jason Whitstone both of whom were allegedly incarcerated at the East Feliciana Parish jail at the same time as Gorman and whose testimony was presented to corroborate saccount of the defendants actions Gorman Code of Civil Procedure article 1702B provides in pertinent part 2 When a demand is based upon a delictual obligation the testimony of the plaintiff with corroborating evidence which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible self authenticating and sufficient proof added of such demand Emphasis Thus affidavits may be considered in support of confirming a default judgment without the necessity of the affiant oral testimony at the hearing Nonetheless s the documents submitted as affidavits must be of sufficient evidentiary quality to be considered despite there being no objection by the defendants See Arias 9 So 3d at 820 An affidavit is a declaration or statement of facts personally known to the affiant reduced to writing and sworn to by the affiant before an officer who has authority to administer oaths such as a notary public In re Davis 12 0689 2012WL6677915 La App 1 Cir 12 unpublished Patterson in Interest of 21 3 For the reasons presented in more detail later in this opinion the trial judge did have the authority under Louisiana Code of Civil Procedure article 1702B require further testimony 2to if he believed that the medical records did not establish one or more of the elements necessary for the plaintiff to recover 7 Patterson v Johnson 509 So 2d 35 38 La App 1 Cir 1987 The handwritten McKenzie affidavit is not signed by either McKenzie or a notary A document that is not signed and notarized cannot be considered as an affidavit Anderson v Allstate Ins Co 931102 La App 1 Cir 4 642 So 2d 208 writ denied 94 8 942400 La 11 646 So 2d 404 The trial court correctly excluded the 94 29 McKenzie affidavit In contrast the Whitstone affidavit is signed by Whitstone It begins Before me the undersigned Notary Public came and appeared Jason Whitstone who after being sworn did declare It concludes Sworn to and subscribed before me this 5th day of May 2011 followed by a signature on a signature line Although the notary is not identified by name or number the document reflects the definitive characteristics of an affidavit in that it purports to be a writing made under oath signed by the affiant and notarized See State v Duhon 95 2724 La 96 21 5 674 So 2d 944 946 Millen v State Dept of Public Safety and Corrections 07 0845 La App 1 Cir 12 978 So 2d 957 963 holding that 07 21 a notary failure to comply with the Louisiana Revised Statute 35 does not s 12 invalidate the affidavit Anderson 642 So 2d at 210 The trial court abused its discretion in refusing to consider the Whitstone affidavit Having determined that the trial court erred in excluding evidence offered in support of the plaintiff case this appeal requires that we determine whether to s conduct de novo review or remand for further proceedings As a general rule when the trial court makes evidentiary errors that are prejudicial such that they materially affect the outcome of the trial and deprive a party of substantial rights and if the record is otherwise complete the appellate court will conduct its own de novo review of the record a See La Code Ev art 103A Riverside Recycling 112 4 The proper inquiry for determining whether a party was prejudiced by a trial court s erroneous ruling on the admission or denial of evidence is whether the error when compared to 8 So 3d at 874 State of Louisiana through Dept of Child and Family Services v Dennis 11 1736 La App 4 Cir 4 90 So 3d 1206 1208 09 However 12 18 the Louisiana Supreme Court has also recognized that in limited circumstances when necessary to reach a just decision and to prevent a miscarriage ofjustice an appellate court should remand the case to the trial court under the authority of Code of Civil Procedure article 2164 rather than undertaking de novo review See Wegener v Lafayette Ins Co 100810 La 3 60 So 3d 1220 1233 Alex 11 15 v Rayne Concrete Service 051457 La 1 951 So 2d 138 155 07 26 We find that remanding this case rather than conducting de novo review is just legal and proper Cf La Code Civ Pro art 2164 To confirm a preliminary default judgment the plaintiff must prove both the existence and validity of his claim by convincing the trial court that it is more probable than not that he would prevail at a trial on the merits Arias 9 So 3d at 815 The determination of whether the plaintiff has satisfied his burden is subject to the credibility determinations of the trial court Tucker v Howes 413 So 2d 585 588 La App 1 Cir 1982 Importantly in the context of confirming a preliminary default judgment in a delictual action Code of Civil Procedure article 170213 2expressly grants the trial court the authority to require additional evidence in the form of oral testimony before entering judgment when warranted under the circumstances of the case In this case the trial court found that Gorman testimony was not credible s However after Gorman medical records and the Whitstone affidavit were s erroneously excluded that conclusion was reached without considering all admissible evidence The trial court also intimated that corroboration with oral the entire record had a substantial effect on the outcome of the case See Wright v Bennett 04 1944 La App I Cir 9924 So 2d 178 183 05 28 Article 2164 pertinently provides that tappellate court shall render any judgment he which is just legal and proper upon the record on appeal 9 testimony was necessary Under Article 1702B the trial court is not obliged to 2 accept the affidavits and records offered nor even the plaintiff testimony s without additional corroboration in the form of oral testimony Even after considering the improperly excluded evidence in this case the trial court may or may not require corroboration through oral testimony pursuant to Article 2 1702B In contrast this court cannot receive new evidence i corroborating e testimony in conducting de novo review See Nieman v Crosby Development Co LLC 11 1337 La App 1 Cir 592 So 3d 1039 1044 12 3 While we make no findings regarding the weight to be given the evidence on remand or the factors the trial court may consider in deciding whether to require corroborating testimony under Article 1702B we note that the authority to 2 require corroborating testimony may be particularly useful here where the trial court found the plaintiff not credible a corroborating affidavit is not an affidavit the other affidavit lacks information necessary to verify that it was notarized and the trial court suggested that medical testimony was necessary to establish causation On remand the trial court can consider and weigh all of the admissible evidence and determine whether to require additional testimony Moreover without the trial court determination of whether it will order additional s testimony we cannot conclude that this court has before it a complete record upon which to conduct de novo review and base a decision See Chambers v Village of Moreauville 11 898 La 1 85 So 3d 593 597 stating that when a legal 12 24 error interdicts the fact finding process de novo review should be undertaken ifthe record is otherwise complete Accordingly this matter is remanded 6 Louisiana Code of Civil Procedure article 1702D allows a sworn narrative report of the treating physician to be offered in evidence in a suit for personal injuries and in lieu of oral testimony No such sworn narrative reports were presented to the trial court in this case 7 We also note that the appellate record does not contain evidence necessary for this court to independently confirm Gorman sassertion of personal service of this suit on the defendants It is well settled that a default judgment may not be taken against a person who has not received 10 CONCLUSION This court prior decision in State Through Dept ofSocial Services v R s H 93 2312 La App 1 Cir 10 644 So 2d 853 is overruled insofar as it found 94 7 that a trial court is authorized to sua sponte dismiss a plaintiff suit for failure of s the plaintiff to meet his burden of proof to confirm a preliminary default judgment The trial court judgment dismissing Gorman suit with prejudice is reversed s s This matter is remanded to the trial court for further proceedings consistent with the views expressed herein Costs ofthis appeal shall await final disposition in this matter REVERSED AND REMANDED citation and service thereof Mitchell v Bass 01 2217 La App 1 Cir 11 835 So 2d 778 02 8 780 In order for a default judgment to be valid the court must have jurisdiction over the parties which is based upon service of process on the defendants La Code Civ Pro art 6 Mitchell 835 So 2d at 780 Although subpoenas notices and returns may be omitted from the appellate record unless they are at issue and there is no requirement that the citation and return of the sheriff be formally offered into evidence to confirm a preliminary default judgment we are also mindful that a judgment rendered in a case wherein the trial record does not evidence service of process on the defendants is null See Stout v Henderson 102 So 193 1924 Mitchell 835 So 2d at 780 Uniform Rules Courts of Appeal 11 Rule 2 1 We are reluctant to perform a de novo review that could result in this court rendering a judgment that without any evidence in the record of service of process on the defendants could be null 11 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2012 CA 0412 THOMAS GORMAN VERSUS LIEUTENANT AUSTIN DEPUTY ANDREW DEPUTY TOM REDMAN AND DEPUTY ROBERT REDMAN UIDRY J concurs in part and dissents in part and assigns reasons GUIDRY J concurring in part and dissenting in part While I agree for the reasons explained herein with the majority decision s to reverse the trial court judgment I believe the majority errs in remanding this s matter back to the trial court Because the record before us is complete proper appellate review dictates that this court should render judgment pursuant to a de novo review of the record before us See Ferrell v Fireman sFund Insurance Co 94 1252 p 4 La 2 650 So 2d 742 745 The majority justifies its action 95 20 of remanding this matter by pointing out that credibility determinations are the province of the trial court however it fails to appreciate the fact that the trial court in this matter exercised that authority in this case and thereby expressly found that 1 the plaintiff was not credible and 2 the evidence was insufficient to establish a prima facie case As a result of that determination by the trial court the proper function of this court is to exercise our constitutional authority of de novo appellate review Moreover the majority reliance on La C art 1702 to justify s P 2 B remand of this matter is equally improper That article grants the trial court discretion to require additional evidence in the form of oral testimony before entering judgment Emphasis added The majority states that the trial court intimated that corroboration with oral testimony was necessary However the fact remains that while the trial court could have chosen to require additional oral testimony before entering judgment it did not do so The majority additionally attempts to justify remand of this matter by sua sponte observing in a footnote that w are reluctant to perform a de novo review e that could result in this court rendering a judgment that without any evidence in the record of service of process on the defendants could be null Rule 2 1 of 11 the Uniform Rules for the Louisiana Courts of Appeal states that s ubpoenas notices and returns may be omitted from the record unless they are at issue Such items may be supplied upon timely application to this court by any party upon showing their materiality Emphasis added See also Stout v Henderson 157 La 169 171 102 So 193 1924 wherein the court found tis no law here requiring that in confirming a default the citation and the return of the sheriff thereon should be formally offered in evidence Richard v Tri J Industrial Construction Inc 478 So 2d 215 216 La App 3d Cir 1985 the court wherein held n article 1701 nor article 1702 requires a trial judge to independently either verify the preliminary default at the confirmation proceeding A failure to serve the defendants with citation in this case would render the preliminary default defective and any subsequent judgment rendered against the defendants an absolute nullity However because there is no proof or even an allegation of a lack of service in the record before us the majority should not abdicate its responsibilities based on mere speculation In Corte v Cash Technologies Inc 02 0846 p 7 La App 1st Cir 4 843 So 2d 1162 03 2 1166 this court observed that the jurisprudence appropriately directs that we do not address whether service was validly effected Therefore I respectfully dissent 2 from the majority remand of this matter to the trial court in clear repudiation of s the longstanding and well established standards of appellate review Finally as to the merits of the appeal I would additionally point out that the purpose of our law with regard to judgments by default is not to coerce defendants into answering suits but only to provide a method by which plaintiffs may obtain when defendants do not answer such relief as they may be actually entitled to Russo v Aucoin 7 So 2d 744 750 La App 1st Cir 1942 1 believe the excluded evidence of Whitstone saffidavit and Gorman scertified medical records were corroborating evidence that Gorman needed to establish a prima facie case for the claims asserted in his petition A de novo review of Gorman stestimony of an unprovoked and unwarranted physical attack by the defendants which testimony was corroborated by the medical evidence photos and affidavit offered into evidence by Gorman reveals that Gorman established a prima facie case entitling him to confirmation of the default judgment Thus for these reasons I find that the trial court judgment failing to confirm the default judgment should s not only be reversed but that on de novo review this court should render judgment confirming the default judgment and award damages in favor of the plaintiff For these reasons I respectfully concur in part and dissent in part from the majority opinion in this matter 3 THOMAS GORMAN FIRST CIRCUIT VERSUS COURT OF APPEAL LIEUTENANT AUSTIN DEPUTY STATE OF LOUISIANA ANDREW DEPUTY TOM REDMAN AND DEPUTY ROBERT REDMAN NO 2012 CA 0412 V 1 9 Z03 J KUHN J concurring in part and dissenting in part I dissent from the proposition posed by the majority that a remand is necessary in this case to achieve justice The plaintiff has filed a suit for damages and a claim under 42 U 1983 The suit was unanswered yet the C S trial court dismissed the suit following a rigorous cross by the trial examination court itsel When the plaintiff appealed he was met by a rule to show cause issued by this Court asking him to show cause why his appeal should not be dismissed As of this date this Court has neither disposed of the show cause nor offered any explanation for its issuance In dismissing the suit on the offer of proof made by the plaintiff the trial court refused to accept evidence it was required to accept under La C art P 2 B 1702 which states that the testimony of the plaintiff with corroborating evidence which may be by affidavits which contain facts sufficient to establish a prima facie case shall be admissible self and sufficient proof authenticating of such demand Emphasis added The majority now suggests that the trial court may decide on remand to require additional corrobaration through oral testimony before confirming the default This suggestion likewise ignores the quoted above language of Article 1702 2 B Our standard of review initially is one of legal error which the majority recognizes However the majority ignores the longstanding rule of de novo review following a finding of legal error choosing to disregard a multitude of cases that address that concept ostensibly in an attempt to do justice Interestingly the majority goes on to suggest as an alternate basis for remand that there was no proof of service This suggestion ignores the trial court record and the information provided to this Court by the district court clerk s office as well as the Uniform Rules of the Courts ofAppeal Defendants failed to make any appearance in the trial court At the confirmation hearing the plaintiff testified that while incarcerated in jail he was severely evidence beaten and was repeatedly tazed by defendants without provocation presented in opposition to this testimony No In support of his testimony the plaintiff attempted to introduce the affidavit of Jason Whitstone who was incarcerated in the adjacent jail cell at the time of the incident To establish his injuries the plaintiff also offered certified medical records including emergency rooms records dated the day of his release from jail which showed that he suffered a concussion a broken right hand multiple abrasions on his upper arm consistent with taser marks swelling to his left thigh and numerous bruises to his back chest ribs left thigh lower legs and right forearm When the trial court refused to admit these exhibits the plaintiff proffered them into the record I concur with the majority conclusion that the trial court erred in excluding these s ibits e Following the confirmation hearing the trial court not only refused to confirm the preliminary default but also denied the request of plaintif scounsel to withdraw the preliminary default from the record The trial court on its own motion then dismissed the plaintiff suit with prejudice In rendering judgment s the trial court emphasized the supposed lack of corroborating evidence as follows BY THE COURT Pm having grave difficulty in accepting this version of events outlined by Mr Gorman and you had ample opportunity to bring some other witnesses here Medical testimony I have no medical testimony to proceed on Mr Gorman parents s could have come here today to testify They could have conoborated some of what he saying but basically you asking me to proceed s re on faith and I having a little bit of difficulty trying to understand m 2 how someone probably five of s Gorman size Mr ten and a hundred fifly or which he average size s sixty pounds is going to withstand the onslaught of five deputies being tased four times multiple mace Ijust having some difficulty with that m BY THE COURT Well I finding that you lose that the evidence m is not such that I can conclude more probably than not that all of this happened that it happened the way it was described by your client I dodt have any medical evidence to try to get some idea of what the damages might be what the long term care may be what the medical expenses may be or any of those things so I can trule in your favor Emphasis added It is ironic that the trial court rejection of the plaintiffls account of events was s based primarily on the supposed lack of corroborating evidence when it was the trial court that erroneously excluded the corroborating evidence that the plaintiff offered It is well that when the trial court commits prejudicial legal established error such as the erroneous exclusion of evidence that occurred in this case the finding fact process is interdicted and if the record is otherwise complete the reviewing court should make an independent de novo review of the record in order to render judgment on the merits rather than remanding to the trial court Campo v Correa O1 La 6 828 So 502 510 Ferrell 650 So at 747 2707 02 21 2d 2d Rosell x ESCO 549 So 840 844 n La 1989 McLean x Hu 495 So 2d 2 zter 2d 1298 La 1986 Ragas v Argonaut Southwest Insurance Co 388 So 707 2d 708 La 1980 Gonzales u Xerox Carporation 320 So 163 165 La 1975 2d Hebert v ANCO Insulation Inc 00 La App lst Cir 7 writs 1929 02 31 denied 02 02 La 2 837 So 629 Holliday v Holliday 00 2956 2959 2ll03 2d 0533 La App lst Cir 8 795 So 423 429 Noveh u Broadway Inc O1 17 2d 2081 95 La App lst Cir 5 673 So 349 353 writ denied 96 La 96 10 2d 1431 96 13 9679 So 109 Hoyt v Wood Chipper Corporation 92 La 2d Chuck 1498 App lst Cir 1 651 So 1344 1349 writ denied 95 La 5 95 6 2d 0753 95 19 3 654 So 695 Smith u Smith 615 So 926 932 La App lst Cir writ 2d 2d denied 617 So 916 La 1993 In explaining this rule our Supreme Court 2d observed that in addition to the constitutional authority of courts of appeal to review law and facts there also is the practical consideration that judicial economy is best served by a prompt decision on the merits rather than a remand to the trial court when the appellate record is otherwise complete Ragas 388 So at 708 2d Gonzales 320 So at 165 A de novo review seroes to minimize the harm of 2d 66 the trial court error by allowing resolution of the matter on appeal without the s delay effort and expense inherent in remand See Ragas 388 So at 708 2d Gonzales 320 So at 166 2d In the instant case despite the prejudicial legal error committed by the trial court in excluding several of the plaintiff ethe majority has elected not to s ibits conduct a de novo review Instead the majority is remanding this matter to the trial court which has already demonstrated its unwillingness to accard the proper weight due under Article 1702 to the evidence offered by the plaintiff at the 2 B confirmation hearing The effect of the majarity action is to tacitly overrule the s long line of jurisprudence including the cases cited herein which clearly require a de novo review under the circumstances present The recard in this case is complete since the plaintiff proffered the erroneously excluded e Nevertheless as justification to remand this matter ibits rather than performing its duty to conduct a de novo review the majority cites the broad principle that in limited circumstances when necessary to reach a just decision and to prevent a miscarriage of justice an appellate court should remand the case to the trial court under the authority of Code of Civil Procedure article 2164 rather than undertaking a de novo review Yet the majority has cited no circumstances explaining how a de novo review would result in a miscarriage of justice in this particular case Rather the majority suggests that a remand is 4 justified despite the complete record before us due to the trial court apparent s conclusion that the plaintifPs testimony was not credible as well as the possibility the trial court could decide to require additional corroboration from the plaintiff in the form of oral testimony pursuant to La P C art B 1702 Incredibly the s majority position disregards the fact that the trial court reasons clearly s demonstrate that its refusal to accept the plaintiff testimony was based primarily s on the lack of corroborating evidence which ironically was provided in the very documents that the trial court erroneously excluded Accordingly it is farcical to accord any weight to the trial court purported credibility determination s Further the cases cited by the majority as authority for a remand are distinguishable on their facts from the present case In Aleac u Rayne Concrete Service OS La 1951 So 138 the trial court erroneously granted a 1457 07 26 2d peremptory challenge of a juror over a Batson objection which Edmonson constituted a structural error Under those peculiar circumstances the Supreme Court held the interests of judicial economy must yield to the greater legal principles involved Specifically the Supreme Court concluded a remand was warranted because of the impact the structural error had not only on the parties but also on the improperly excluded juror and our system of justice A 951 So r e 2d at 155 No such structural error occurred in the instant case 56 In Wegener v Lafayette Insurance Company 10 La 3 60 0810 11 15 3d So 1220 1234 the Supreme Court remanded the case for a new trial based on the specific facts and circumstances of that case as well as the particular legal issues involved The Supreme Court held that first observation of the hand opposing witnesses was necessary because there were multiple issues which were greatly affected by the respective credibility of the witnesses In contrast there Batson u Kentucky 476 U 79 106 S 1712 90 L 69 1986 Edmonson v S Ct 2d Ed Leesville Concrete Co Inc 500 U 614 111 S 2077 ll4 L 660 1991 npany S Ct 2d Ed 5 was no opposing or conflicting evidence at issue in the instant case No evidence whatsoever was introduced challenging the plaintif testimony nor did any other s witnesses testify at the confirmation hearing Therefare unlike Wegener the facts of the present case do not warrant a remand to allow the first observation of hand opposing witnesses With respect to the majority further rationale that the trial court could s elect upon remand to require additional oral testimony under La C art P 2 B 1702 it should be noted that the trial court had the opportunity to order such testimony before rendering judgment in this matter and it elected not to do so Particularly in view of this fact the majority rationale constitutes mere s speculation Moreover to give validity to this rationale would require remand in all confirmation cases where prejudicial legal error occurs since the possibility will always e that the trial court could decide on remand to require additional st oral testimony under Article 1702 In any event once a determination was 2 B made that the trial court had committed prejudicial legal error the issue before this Court was not whether or not the trial court might decide to require additional oral testimony on remand but whether the plaintiff established a prima facie case supporting his claim Finally as previously noted the majority also sets forth as additional justification for a remand the assertion that it could not independently confirm that service was made on defendant because the appellate record contains no evidence of service In doing so the majority failed to explain why it was necessary to independently confirm that service was made given that Uniform Rules Court of Appeal Rule 2 does not require that returns be included in an 11 1 appellate record when they are not at issue In this case no issue was raised concerning service either in the trial court or in this Court Hence the issue of service is not properly before this Court in the instant appeal since it was not raised 6 by any of the parties See Carte x Cash Technologies Inc 02 La App 0846 lst Cir 4 843 So 1162 ll66 03 2 2d Even more significantly the majority ignores the fact that the East Feliciana Parish Clerk of Court s Office has provided this Court with documentation verifying personal service of the suit on defendants The majority claim that a remand is just legal and proper under La s P C art 2164 is unfounded It is not justice far this Court to raise an issue on its own concerning service without giving the plaintiff any opportunity to address that issue or supplement the record given that the uniform rules do not require returns to be included in the appellate record when service is not at issue It is not justice for the majority to ignore well jurisprudence from the Supreme established Court and this Court in arder to remand this case to a trial court rather than to perform its duty to conduct a de novo review of the complete record before us It is not justice to remand this case to the trial court without restriction which will allow defendants an opportunity to answer this suit and present evidence at this late juncture especially since defendants repeatedly have failed to avail themselves at the proper time of numerous opportunities to answer the plaintiff claims and s present opposing evidence The majority srefusal to conduct a de novo review of the record and render a judgment on the merits when it is clearly required to do so by well jurisprudence is a miscarriage of justice For these reasons I established dissent from the majority remand s z The Supreme Court has held that when an appellate court on its own motion raises an issue that was not briefed the parties should be given an opportunity to be heard on the issue by briefing Merrill v Greyhound Lines Inc 10 La 4 60 So3d 600 6o2 The plaintiff has 2827 11 29 been given no such opportunity in this case despite the fact that the majority relies at least in part on the lack of service information in the record as justification for its decision to remand this matter 3 Not only did defendants fail to appear in the trial court they also failed to make any appearance in this appeal Specifically defendants failed to file an appellees brief or appear for oral argument Further when this matter was assigned to a five judge panel for hearing defendants neither filed a brief nor appeared for oral argument Again when this matter was set for an en banc hearing defendants neither filed a brief nor appeared for oral argument Delivery of the various docketing notices sent to defendants by this Court was refused and those notices were returned to this Court marked Return to Sender 7

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