Niyokey Torregano, Wife of/and Courtney Torregano v. James Cohen, Corey Stewart and Abc Insurance Company (An Unknown Insurer)

NIYOKEY TORREGANO, * NO. 2021-CA-0005
WIFE OF/AND COURTNEY
TORREGANO *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
JAMES COHEN, COREY *
STEWART AND ABC STATE OF LOUISIANA
INSURANCE COMPANY (AN *******
UNKNOWN INSURER)

APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 16-1132, DIVISION “A”
Honorable Robert J. Klees, Judge Pro Tempore
******
Judge Roland L. Belsome
******
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge
Paula A. Brown)

Bradley Egenberg
Benjamin R. Berman
EGENBERG, APLC
650 Poydras Street, Suite 2000
New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLEE

Paul A. Tabary, III
Elizabeth R. Borne
Lacey Tabary
TABARY & BORNE, LLC
3 Courthouse Square
Chalmette, LA 70043

COUNSEL FOR DEFENDANT/APPELLANT

VACATED AND REMANDED

MAY 19, 2021

RLB This is an appeal from a premises liability damages judgment in favor of
JCL
PAB Niyokey and Courtney Torregano (collectively “the Torreganos”) and against

James Cohen. For the reasons that follow, the judgment is vacated and the case is

remanded for a new trial.

Facts

The Torreganos leased the residence located at 2822 Stacie Drive in St.

Bernard Parish from its owner, James Cohen. Shortly after moving into the

property, the Torreganos noticed that the roof was leaking. The roof was not

repaired, and on May 3, 2016, the ceiling collapsed injuring Mrs. Torregano.

A bench trial commenced on February 3, 2020. On the morning of trial, the

trial court addressed the Torreganos’ motion to strike witnesses, which sought to

prevent Mr. Cohen’s witnesses, Corey Stewart and Torey Bartholomew, from

testifying. The basis for the motion was that neither of the men cooperated in

being deposed by the Torreganos’ attorney. The trial court granted the motion, and

a bench trial commenced.

1

Once the trial was completed, the matter was taken under advisement and

post-trial briefs were filed. Judgment was rendered on July 15, 2020, and awarded

Mrs. Torregano $26,497.10 in special damages and $75,000.00 in general

damages. Mr. Torregano was awarded $10,000.00 for his loss of consortium. Mr.

Cohen filed a motion for new trial asserting error on the part of the trial court for

excluding his witnesses’ testimony. The motion for new trial was denied. This

appeal followed.

Assignment of Errors

On appeal, Mr. Cohen maintains that the trial court committed a legal error

when it excluded Mr. Stewart and Mr. Bartholomew’s testimony at trial and further

erred in denying the motion for new trial. To remedy the trial court’s errors, Mr.

Cohen seeks de novo review and remand for a new trial.

Discussion

The trial court addressed the motion to strike witnesses just prior to the

commencement of trial, on February 3, 2020. At that time, the attorney for the

Torreganos argued that they would be prejudiced if Mr. Cohen’s two witnesses

were allowed to testify after failing to submit to depositions. The motion detailed

the Torreganos’ efforts to obtain the deposition testimony.

As to Mr. Stewart, he managed the property and was a named defendant

when he first appeared for a deposition and refused to answer any questions

without having an attorney present. That caused the Torreganos to file a motion to

compel and motion for contempt. When Mr. Stewart appeared in court for the

motions, the trial court granted the motion to compel and ordered him to submit to

a deposition within thirty days. The Torreganos later agreed to accept an affidavit

from Mr. Stewart that stated he was Mr. Cohen’s agent and he was not a

2

lessor/sub-lessor of 2822 Stacie Drive. That information led to Mr. Stewart being

dismissed from the lawsuit.

Later, the Torreganos filed a partial motion for summary judgment on the

issue of liability, and Mr. Stewart submitted a second affidavit that was used as

evidence for the opposition to the partial motion for summary judgment. The

second affidavit contained statements regarding his interactions with the

Torreganos and his efforts to repair the roof leak prior to the ceiling collapsing.

Also, presented as evidence with the opposition to the motion was an affidavit by

Mr. Bartholomew, which described conversations he had with the Torreganos

regarding the ceiling collapse. The partial motion for summary judgment was

denied.

Based on the new affidavits, the Torreganos again sought to depose Mr.

Stewart, and also served Mr. Bartholomew with a notice of deposition. Mr.

Stewart appeared for the deposition but would not answer questions without an

attorney. Mr. Bartholomew was served with a notice of deposition but failed to

appear. Shortly thereafter, the discovery deadlines expired.

In opposition to the motion to strike the witnesses, Mr. Cohen’s attorney

argued that the proper response to a non-party witness who fails to submit to a

deposition would be a motion to compel or a motion for contempt against the non-

party. Further, because Mr. Cohen lives out of state, he had no interactions with the

Torreganos, and could not present a defense without Mr. Stewart and Mr.

Bartholomew. Even though the trial court acknowledged the prejudice to Mr.

Cohen, the motion to strike witnesses was granted.

After taking the matter under advisement, the trial court determined that Mr.

Cohen was liable for the Torreganos’ damages pursuant to La. C.C. art. 2322,

3

which imposes liability for damage caused by ruin of a building.1 In its reasons for

judgment, the trial court found that Mr. Cohen knew or should have known of the

defect that led to the ceiling collapse, the collapse could have been prevented by

the exercise of reasonable care, and he failed to exercise reasonable care.

Therefore, Mr. Cohen was held liable for the damages sustained by the Torreganos.

After Mr. Cohen was denied the opportunity to present the only witnesses he

planned to call, he proffered the witnesses’ affidavits for review on appeal. The

proffered affidavit of Mr. Stewart asserts that he made numerous attempts to access

the property to make the repairs, but was either refused access by the Torreganos

or could not enter the premises due to the presence of the Torreganos’ dogs in the

yard. Next, Mr. Bartholomew’s affidavit indicates that his testimony would bring

into question the veracity of the Torreganos’ account of the incident and Mrs.

Torregano’s injuries. The nature of both of the witnesses’ testimony is

contradictory to the allegations made by the Torreganos, and therefore probative

and relevant.

This Court has found that the failure to appear for a deposition pursuant to a

properly served subpoena is properly punishable by the trial court. Johnson v.

Nguyen, 2000-1148, p. 4 (La.App. 4 Cir. 7/11/00), 793 So.2d 370, 373 (citing

Bernard v. State Farm Mutual Ins. Co., 1998-2509 pp. 9-10 (La.App. 4 Cir.

6/30/99), 742 So.2d 609, 614). However, when it is a non-party witness who

1
La. C.C. art. 2322 reads in pertinent part:

The owner of a building is answerable for the damage occasioned by its ruin,
when this is caused by neglect to repair it, or when it is the result of a vice or
defect in its original construction. However, he is answerable for damages only
upon a showing that he knew or, in the exercise of reasonable care, should have
known of the vice or defect which caused the damage, that the damage could have
been prevented by the exercise of reasonable care, and that he failed to exercise
such reasonable care.

4

disobeys a subpoena for a deposition, the court is limited to the contempt authority

found in La. C.C.P. art. 1357. Dauzat v. Trinity Universal Ins. Co. of Kansas,

1995-1235, p. 8 (La.App. 3 Cir. 3/6/96), 670 So.2d 785, 789 (citing Hart v. Hart,

460 So.2d 1129, 1130 (La.App. 2 Cir. 1984)). According to La. C.C.P. art. 1357, a

person who fails to obey a subpoena, without reasonable excuse, may be adjudged

in contempt of court. The statute also authorizes the court to order a recalcitrant

witness to be attached and brought to court. La. C.C.P. art. 1357, see also,

Johnson, 2000-1148, pp.7-8, 793 So.2d at 374-75 (providing that contempt of

court sanctions including fine and imprisonment were properly imposed on witness

in negligence action, where witness repeatedly refused to appear for depositions.).

Rather than imposing the penalty provisions provided for by law against a non-

party, the trial court penalized Mr. Cohen by striking the two witnesses.

Appellate courts find legal error when a trial court applies incorrect

principles of law and such error is prejudicial. 1026 Conti Condominiums, LLC v.

1025 Bienville, LLC, 2015-0301, p. 5 (La.App. 4 Cir. 12/23/15), 183 So.3d 724,

727. (citation omitted). Depriving a party of a substantial right is considered

prejudicial. Id. By excluding the trial testimony of Mr. Stewart and Mr.

Bartholomew, the trial court deprived Mr. Cohen of the substantial right to defend

himself against the Torreganos’ claims. Therefore, we find a legal error occurred

and de novo review is warranted. Upon de novo review this Court is required, if it

can, to render judgment on the record. Id. The record before this court contains

the proffered affidavits of Mr. Stewart and Mr. Bartholomew, but no proffered

testimony or cross-examination.

In Swindell v. Leonard B. Hebert, Jr. & Co., 592 So.2d 483 (La.App. 4 Cir.

1991), this Court addressed the remedy for the improper exclusion of testimony

5

with a record that contained proffered affidavits rather than proffered testimony.

Swindell was a lawsuit between a subcontractor and contractor over disputed

amounts due after the subcontractor was discharged for breach of performance. Id.

at 484. The trial court excluded testimony from several of the contractor’s

witnesses that had direct knowledge of the project and the quality of

subcontractor’s work. Id. at 485-86. The trial court allowed the evidence to be

proffered, but rather than allowing the proffer of testimony, the trial court required

the proffer be made by written statements. Id. at 486. On appeal, this Court found,

like in this case, the statements provided probative and relevant evidence, and it

was unduly prejudicial to the contractor’s case to exclude the witnesses from

testifying. Id. However, because the record did not contain the actual testimony

and cross-examination, the case could not fairly be decided on appeal. Id. For that

reason, the Swindell case was remanded for a new trial. Id.

Considering the trial court’s legal error and the absence of essential

testimony and cross-examination, this Court is unable to fairly decide this case.

For those reasons, the judgment of the trial court is vacated and the matter is

remanded for a new trial.

VACATED AND REMANDED

6