Ana Abigail Gonogora Versus Taqueria La Conquistadora

ANA ABIGAIL GONOGORA NO. 22-CA-392

VERSUS FIFTH CIRCUIT

TAQUERIA LA CONQUISTADORA COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION,
DISTRICT 7, STATE OF LOUISIANA
NO. 20-1125
HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING

May 03, 2023

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Stephen J. Windhorst

AFFIRMED
SJW
SMC
MEJ

COUNSEL FOR PLAINTIFF/APPELLEE,
ANA ABIGAIL GONOGORA
Cesar R. Burgos
Robert J. Daigre
Gabriel O. Mondino
George M. McGregor
Leila M. Bonilla
William R. Penton, III.

COUNSEL FOR DEFENDANT/APPELLANT,
TAQUERIA LA CONQUISTADORA
Michael H. Idoyaga

WINDHORST, J.

In this matter, defendant/appellant, Taqueria La Conquistadora (“Taqueria”

or “defendant”), appeals the May 16, 2022 workers’ compensation court’s judgment

ordering Taqueria to pay plaintiff/appellee, Ana Abigail Gongora, temporary total

disability benefits, supplemental earnings benefits, past and future medical expenses,

penalties, and attorney’s fees. Upon review, we affirm the judgment of the workers’

compensation court.

FACTS and PROCEDURAL HISTORY

On February 14, 2020, Ms. Gongora filed a disputed claim for compensation

against Taqueria for injuries resulting from a slip and fall that occurred while

working at Taqueria on December 9, 2019. She claimed she injured her head, neck,

right shoulder, and back. In the disputed claim form, she indicated that no medical

treatment had been authorized, and that no wage benefits had been paid. She also

stated that Carolina, a co-worker, witnessed the accident.

Defendant answered the disputed claim form, denying that Ms. Gongora

injured herself while working. Defendant asserted that Ms. Gongora worked for

Taqueria for one day, and that the owner had no recollection or record of her

suffering an injury.

The workers’ compensation court issued a scheduling order on December 12,

2020, setting trial for March 15, 2021. This trial date was eventually continued, and

trial took place on March 10, 2022. The scheduling order stated that the discovery

deadline was 30 days prior to trial, and that trial exhibits and witness lists shall be

filed on the day of trial.

On January 10, 2022, Ms. Gongora filed a motion to strike defenses against

defendant for failing to participate in discovery. Therein, Ms. Gongora sought to

strike all of defendant’s evidence that Ms. Gongora was not working at the time she

was injured. Ms. Gongora asserted that she had served defendant with a subpoena

22-CA-392 1

duces tecum for documents, along with her notice of deposition. At the deposition,

defendant failed to produce any documents or a verification for its discovery

responses, which Ms. Gongora had previously requested. In the motion, Ms.

Gongora asserted that Taqueria’s owner, Ms. Carmen Diaz, had represented at her

deposition that defendant would produce the documents, as well as the verification

for the discovery responses.

Ms. Gongora also stated in the motion that defendant had refused to

participate in court-scheduled mediation, and had only retained counsel on the eve

of the hearing to confirm a default, which was based on defendant’s failure to

respond to the disputed claim form. In support of her contention that defendant was

uncooperative, Ms. Gongora also pointed out that defendant had previously

requested a continuance of the July 21, 2021 trial date due to Taqueria’s owner being

out-of-town attending to a medical issue for her daughter, but never produced any

evidence supporting this request.

In the motion, Ms. Gongora further argued that defendant was only interested

in delaying the progress of her claim and asked the court to strike all of defendant’s

defenses. Alternatively, she asked the court to issue an order compelling defendant

to produce the requested documents.

After a hearing, by judgment dated March 4, 2022, the workers’ compensation

court denied Ms. Gongora’s motion to strike in part and granted the motion in part,

ordering defendant to produce several requested documents. The court also awarded

Ms. Gongora sanctions and attorney fees. The order stated that, “Failure to comply

with the above Orders may result in further sanctions imposed by the Court and

reconsideration of Claimant’s Motion to Strike.” Defendant did not produce the

requested documents as ordered.

On March 10, 2022, the day of trial, Ms. Gongora orally objected to

defendant’s newly-announced witness, Carolina Diaz, asserting that defendant

22-CA-392 2

informed her on March 8, 2022, two days before trial, that Carolina Diaz would be

a witness. The workers’ compensation court granted the oral motion to strike

Carolina as a witness based on defendant’s untimely notice two days before trial that

she would be a witness.

At trial, the Court heard live testimony from Ms. Gongora and Ms. Diaz,

Taqueria’s owner. Based on the testimony and evidence presented, the workers’

compensation court found that Ms. Gongora had established that an injury occurred

in the course and scope of her employment and awarded benefits, penalties, and

attorney’s fees.

LAW and ANALYSIS

In its only assignment of error, defendant asserts that the workers’

compensation court erred in striking Carolina Diaz as a witness for the defense of

this claim. Defendant contends that the workers’ compensation court erroneously

found its notice of this witness untimely. Defendant argues that Carolina was well

known to Ms. Gongora for approximately three years before the trial, and that her

counsel had the opportunity to depose her or otherwise question her. Defendant

relies on the fact that on her disputed claim form, Ms. Gongora listed Carolina as a

witness, specifically “Carolina, who was mopping, witnessed the accident.”

Defendant also argues that the pretrial order does not mention witnesses.

As an initial matter, it is well-settled that in order for this court to

review evidence deemed inadmissible by the trial court, the party must comply with

La. C.C.P. art. 1636 to preserve the evidence. McMillion v. E. Jefferson Gen. Hosp.,

15-578 (La. App. 5 Cir. 5/26/16), 193 So.3d 448, 451-52, writ denied, 16-1192 (La.

10/10/16), 207 So.3d 405; Tatum v. United Parcel Service, Inc., 10-1053 (La. App.

5 Cir. 11/15/11); 79 So.3d 1094, 1104. Any error may not be predicated upon a

ruling that excludes evidence, unless a substantial right of a party is affected and the

substance of the evidence was made known to the court by counsel. Id. at 1105. In

22-CA-392 3

those instances, it is incumbent upon the party who contends the evidence was

improperly excluded to make a proffer; and if the party fails to do so, that party

cannot contend such exclusion was erroneous. Rogers v. Wackenhut Servs., Inc.,

05-459 (La. App. 5 Cir. 1/17/06), 921 So.2d 1076, 1078. Without a proffer, an

appellate court cannot ascertain the nature of the excluded evidence. Id.

The record reflects that defendant did not proffer the excluded testimony, and

there is nothing in the record to ascertain the substance of Carolina’s testimony.

Consequently, this court has no way of determining whether or how Carolina’s

testimony would have affected the outcome of this matter. We therefore cannot

determine whether the exclusion of this testimony affected a substantial right of

defendant. Because defendant did not properly preserve this issue for appeal, this

assignment of error lacks merit.

In addition, a trial court has much discretion in imposing sanctions for a

party’s failure to comply with scheduling orders, and its ruling will not be reversed

absent an abuse of that discretion. Campos v. Unlimited Master Contractors, LLC,

18-435 (La. App. 5 Cir. 1/30/19), 265 So.3d 968, 972, writ denied, 19-427 (La.

5/6/19), 270 So.3d 576. In reviewing an imposed sanction, each case must be

decided upon its own facts and circumstances. Id. Whether or not witnesses are

permitted to testify is within the trial judge’s discretion. Only when this discretion

is abused is such a decision reversible on appeal. Reed v. Columbia/HCA Info. Sys.,

Inc., 00-1884 (La. App. 5 Cir. 4/11/01), 786 So.2d 142, 147, writ denied, 01-1384

(La. 6/22/01), 794 So.2d 796.

The scheduling order provided that the discovery deadline was 30 days prior

to trial. During discovery, defendant did not inform Ms. Gongora that Carolina

would be a witness. Defendant also did not provide the court with any reason or

explanation for failing to timely inform Ms. Gongora that Carolina would be a

witness.

22-CA-392 4

In addition, the record indicates that defendant failed to cooperate with

discovery throughout the case. Based on defendant’s failure to participate in

discovery, Ms. Gongora filed a motion to strike defendant’s evidence that Ms.

Gongora was not working at the time she was injured. Despite the workers’

compensation court’s ruling ordering defendant to produce documents requested

during discovery, defendant failed to comply.

Based on the facts of this case, we find no abuse of the workers’ compensation

court’s discretion in striking Caroline Diaz as a witness for defendant.

DECREE

For the reasons stated above, we affirm the workers’ compensation court’s

judgment.

AFFIRMED

22-CA-392 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 3, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-CA-392
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)
GABRIEL O. MONDINO (APPELLEE) GEORGE M. MCGREGOR (APPELLEE) ROBERT J. DAIGRE (APPELLEE)
WILLIAM R. PENTON, III (APPELLEE) MICHAEL H. IDOYAGA (APPELLANT)

MAILED
LEILA M. BONILLA (APPELLEE) CESAR R. BURGOS (APPELLEE)
ATTORNEY AT LAW ATTORNEY AT LAW
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