Kelda Price, Kelvin Wells & on behalf of Minor Children VS Geico General Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCL IT NO 2012 CA 0861 KELDA PRICE KELVIN WELLS AND ON BEHALF OF MINOR CHILDREN VERSUS GEICO GENERAL INSi COMPANY JRANCE C it Judgment Rendered 1 8 2a On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 595 821 The Honorable Todd Hernandez Judge Presiding Kelda Price Appellant Plaintiff Pro Se Appellant Plaintiff Pro Se Kelvin Wells Baton Rouge Louisiana Stephen Baton Dale Cronin Rouge Louisiana BEFORE Attorney for DefendandAppellee GEICO General Insurance Company PARRO WELCH AND KLINE JJ Hon William F Kline Jr retired is serving as judge ad hoc by special appointment of the Louisiana Supreme Court C tt t a l titJ L E C CG7lG 1 i fC l KLINE J This is an appeal by plaintiffs Kelda Price and Kelvin Wells following the trial court granting of an exception of no cause of action in favor of defendant s GEICO General Insurance Company GEICO without allowing the plaintiffs an opportunity to amend their petition to state a cause of action For the reasons that follow we affirm in part reverse in part and remand FACTS AND PROCEDURAL HISTORY Plaintiffs filed suit against GEICO claiming that their two vehicles a 1997 Plymouth Breeze and a 1993 Nissan Maxima were purposely totaled while parked in their yard Plaintiffs allege that they had uninsured UM motorist underinsured coverage pursuant to an insurance policy issued by GEICO Plaintiffs allege that GEICO acted in bad faith by not paying for the damage to the vehicles Plaintiffs seek damages for property damage mental anguish loss of usage and loss of consortium Plaintiffs filed a petition in this matter on October 19 2010 GEICO filed an Exception for Insufficiency of Service of Rrocess on November 8 2010 On January 20 2011 the plaintiffs filed a Motion for Judgment of Default claiming that GEICO had failed to answer the petition On January 24 2011 Judge Janice Clark recused herself from the case The case was re to Judge Todd allotted Hernandez Plaintiffs subsequently cured the defect in service on GEICO and GEICO filed an exception of no cause of acfion on February 15 2011 which was set for hearing on April 25 20ll The hearing was held on April 25 2011 with no appearance by any plaintiff or representative One day after the hearin plaintiffs filed a motion to continue based upon a motion to compel against the East Baton Rouge Sheriff Office being set for hearing on June 13 2011 On May 3 2011 s 2 the trial judge signed a judgment in conformiYy with its April 25 2011 ruling granting no cause of action ASSIGNMENTS OF ERROR Pursuant to Uniform Rules of Appeal Rule 2 an appellant Court 4 12 s brief must comply with certain requirements The brief must include among other things a concise statement specification or assignment the issues of the case of the of case alleged the errors ruling of the trial court an argument confined strictly to citations of the pages of the record conclusion stating the precise relief sought a and a short Uniform Rules of Appeal Court Rule 2 4 12 s Ylaintiff pro se brief fails to comply with the requirements of Rule 2 4 12 as there are no specifications ar assignments of error s Plaintiff brief contains argument but no specific errors Although we could summarily dismiss this entire appeal in acknowledgmenY of plaintiffs pro se status we will review the record to determine if the judgment appealed from is supported by the record STANDARD OF REVIEW The function of the peremptory eYCeption raising the objection of no cause of action is to test the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged in the pleading Ourso v Wal Mart Stores Inc 08 La App 1 Gir 11 998 So 2d 295 298 wrzt denied 0780 08 14 2885 q8 La 2 999 So 2d 785 The ekception is triable on the face of the 09 6 s pleadin and for the purposes of determining the issues raised by the exception Z On May 9 2011 Judge Janice Clark signed a preliminary default after she had already recused herself from the case However a prelimiu default is inappropriate and remains so tmtil uy disposition of the pending exaeption and motions and the lapse of Yime provided for by La C art 1914 Livin Paris Poltce Jury v Patterson 589 So 2d 9 App 1 Cir P rz st z La l 991 A preliminary default could not be entered ufler the granting of the exception of no cause of action as it became moot 3 the well facts in the petition must be accepted as true Ourso 998 So 2d pleaded at 298 In reviewing a trial court sustaining an exception of no cause of action s appellate courts conduct a de novo review because the exception raises a question of law and the trial court decision is based only on the sufficiency of the petition s ToNbertLand Co L v MontgomeYy 09 La App 1 Cir 7 42 So C 1955 10 9 3d ll32 1135 writ denied 10 La 12 51 So 3d 16 2009 10 17 LAW AND ANALYSIS Claims of Plaintiffs Plaintiffs appear to claim that the trial court erred in granting the exception of no cause of action since plaintiffs had LJM coverage with GEICO A cause of action when used in the context of the peremptory exception is defined as the operative facts that give rise to the plaintiff right to judicially assert the action s against the defendant The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition which is done by detertnining whether the law affords a remedy on the facts alleged in the pleading No evidence may be introduced to support or controvert an exception of no cause of action Consequently the court reviews the petition and accepts well allegations pleaded of fact as true The issue at the trial of the exception is whether on the face of the petition the plaintiff is legally entided to the relief sought Ramey v DeClaire 1299 2003 La 3869 So 2d 114 118 04 19 Where the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition the judgment sustaining the exception shall order such amendment within the delay allowed by the court If the grounds of the objection raised through the exception cannot be so removed or where the plaintiff fails to comply with the court order to amend the action shall s be dismissed La C art 934 P 4 Plaintiffs petition alleges that two vehicles were damaged Although GEICO argues that all of the allegations are for property damage plaintiffs do seek damages for Mental Pain and suffering anguish past present and future in their petition Plaintiffs allege they had UM coverage which would include coverage for bodily injury damages La R 22 requires insurers to S 1295 i a 1 provide UM coverage in certain circumstances as follows No automobile liabiliry insurance covering liability arising out of the ownership maintenance or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto in not less than the limits of bodily injury liability provided by the policy under provisions filed with and approved by the commissioner of insurance for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury sickness or disease including death resulting therefrom A review of La R 22 requires an insurer to offer UM coverage S 1295 i a 1 because of bodily injury sickness or disease including death An award far mental aguish as a result of damage to property is normally permitted in four instances 1 property damaged by an intentional or illegal act 2 property damaged by acYs for which the tortfeasor will be strictly ar absolutely liable 3 property damaged by acts constituting a continuous nuisance 4 property damaged at a time when the owner thereof is present or situated nearby and the owner experiences trauma as a result Nikolaus v City of Baton Parislt Rouge of East Baton Rouge 09 La App 1 Cir 6 40 So 3d 2090 10 11 1244 1248 writ not considered 10 La 10 46 So 3d 1256 1638 10 8 GEICO claims that the instant matter is a properry damage claim and plaintiffs cannot allege bodily injury claims since the policy does not cover property damage However this matter is before us on an exception of no cause of 5 action No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action La C art 931 in P pertinent part The issue before this court on an exception of no cause of action is whether the plaintiff is legally entitled to Yhe relief sought Ramey 869 So 2d at 118 It appears that the ground for GEICO objection may be removed by s amendment of the petition because plaintiffs under certain circumstances may legally make a claim for mental anguish resulting from property damage Therefore the trial court should have allowed plaintiffs an opportunity to amend their petition to set forth a cause of action if any they can Accordingly we reverse the judgment of the trial court dismissing plaintiffs petition and remand this matter so that plaintiffs may amend their petition within the delay allowed by the trial court Trial Court Action Proper Plaintiffs also object to the action of the trial court for proceeding with the hearing on the exception of no cause of action on April 25 2011 Plaintiffs claim they sought a continuance in order to obtain discovery from the East Baton Rouge s Sheriff Office As is clear from the record the motion to continue was filed the day after the hearing on the exception on April 26 20ll Therefore the trial court was unaware of the motion to continue at the time it rendered its judgment on the exception of no cause of action Furthermore the record shows that neither the plaintiffs nor anyone on their behalf appeared at the hearing on the exception of no cause of action Plaintiffs could have appeared and requested a continuance but failed to do so Additionally the ground upon which plaintiffs sought a continuance was to obtain the discovery information from the East Baton Rouge Sheriff Office s pursuant to a subpoena Even if the plaintiffs were able to obtain the information 6 sought by the subpoena no such evidence w have been admissible at the uld hearing on the exception of no cause of action No evidence may be introduced to support or controvert the exception raising the objection of no cause of action La P C art 931 Ramey 869 So 2d at ll 8 Therefare any evidence plaintiffs may have obtained from the East Baton Rouge Sheriff Office is not relevant to the s exception of no cause of action Plaintiffs also assert that Judge Todd Ithe trial judge should have ernandez recused himself A review of the record reveals that the claim that the trial judge should have recused himself is being made f the first time on this appeal or A party desiring to recuse a judge of a district court shall file a written motion therefor assigning the ground for recusati mThis inotion shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter in which event it shall be filed immediately after these facts are discovered but priar to judgment La G art 154 No motion to recuse P C was filed at all in the present matter As a g rule appellate courts will not neral consider issues that were not raised in the pleadings were not addressed by the trial court or are raised for the first time on appeal Dan Const Co Inc v Cin 1552 Thrasher 08 La App 1 Cir o9 13 2 9 So 3d 205 208 See also Uniform Rules of Appeal Rule 1 The Courts of Appeal will review Courts 3 only issues which were submitted to the trial court and which are contained in specifications or assignments of error unless the interest ofjustice clearly requires otherwise The recard indicates that the plaintiffs never raised the issue of grounds for the trial judge recusing himself the argument has been waived Thus we need not address plaintiffs argument on the trial judge failure to recuse s himself 7 DECREF The judgment of the trial court is affirmed insofar as it sustains the peremptory exception raising the objection of no cause of action regarding coverage far property damage and is reversed to the extent it dismisses plaintiffs petition without allowing them an opportunity to amend to state a cause of action if they can This matter is remanded with instructions for the trial court to set a delay for amendment of the petition If plaintiffs fail to amend their petition as instructed their petition shall be dismissed by the trial court Costs of this appeal are to be bome equally by appellants Kelda Price and Kevin Wells and Appellee GEICO General Insurance Company AFFIRMED IN PART REVERSED IN PART AND REMANDED WITH INSTRUCTIONS 8
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