Mary Margaret Broussard v. Jeffrey D. Broussard

Judgment rendered June 29, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,598-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

MARY MARGARET BROUSSARD Plaintiff-Appellee

versus

JEFFREY D. BROUSSARD Defendant-Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 605,911

Honorable Brady D. O’Callaghan, Judge

*****

LAW OFFICES OF E. RAY KETHLEY Counsel for Appellant
By: E. Ray Kethley, Jr.

KAMMER & HUCKABAY, LTD Counsel for Appellee
By: Charles H. Kammer, III

*****

Before MOORE, STONE, and ROBINSON, JJ.

ROBINSON, J.

On June 15, 2021, Defendant, Jeffrey D. Broussard (“Jeffrey”), filed a

motion for devolutive appeal from a judgment entered on August 25, 2020,

from a community property trial that took place on July 14, 2020. The

matter had proceeded to trial after the trial court denied Jeffrey’s motion for

a continuance on the basis of the motion’s untimeliness. For the following

reasons, the trial court’s judgment is hereby affirmed.

FACTS AND PROCEDURAL HISTORY

This appeal arises from litigation initiated by Plaintiff, Mary Margaret

Broussard (“Mary”), to partition the community property between her and

Jeffrey. Jeffrey filed a motion to continue the community property trial

scheduled for July 14, 2020, at 2:30 p.m., based on the July 9, 2020,

physician recommendation that his attorney, E. Ray Kethley, Jr. (“Kethley”),

not work for at least four weeks. The motion was faxed to the clerk of court

on the morning of July 14, 2020, but was not filed until July 17, 2020, and

not received by the court until July 20, 2020. The trial court denied the

motion on the basis of untimeliness and proceeded with the trial. A ruling

and judgment were thereafter signed and filed on August 25, 2020.

On September 4, 2020, Mary filed a “Motion to Amend, Clarify

Judgment, Correct Calculation, New Trial, Enter Equalization Payment in

the Form of a Mortgage and/or Allocate/Sell Asset.” A hearing on that

motion was scheduled for December 7, 2020. On October 26, 2020, Jeffrey

filed a motion for devolutive appeal from the August 25, 2020, judgment,

which was denied by the trial court based on prematurity.

On the morning of the December 7, 2020, hearing, Jeffrey filed a

motion to recuse, claiming that the trial court judge was prejudiced toward

or against Kethley to such an extent that the judge would be unable to

conduct fair and impartial proceedings. Written reasons for judgment were

filed by a different district judge on February 4, 2021, denying the motion to

recuse, stating that Jeffrey failed to prove bias, prejudice, or personal interest

on behalf of the presiding judge.

On June 15, 2021, Jeffrey filed another motion for devolutive appeal

from the August 25, 2020, judgment, which was then granted by the

presiding judge.

DISCUSSION

Jeffrey claims that the trial court abused its discretion when it denied

his motion to continue and proceeded with the trial without Jeffrey or

Kethley being present.

The basis for his motion to continue the July 14, 2020, trial was

Kethley’s recommendation from his internist on July 9, 2020, handwritten

on a prescription pad, that he avoid work for four weeks or until his

symptoms of chest tightness, shortness of breath, and fatigue, could be

evaluated. A copy of the note was attached to the motion. The motion was

faxed to the Caddo Parish Clerk of Court’s emergency filing facsimile

number on July 14, 2020, at 9:07 a.m., as shown in a communication result

report attached to the later-filed motion to recuse, despite the motion being

subsequently file-stamped on July 17. Jeffrey asserts that since the trial was

not scheduled until 2:30 p.m., the motion submitted earlier that morning was

timely.

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Jeffrey claims that the facts of this case demonstrated good cause for

a continuance because Kethley had a legitimate medical reason not to attend

the trial and notified the court prior to trial. Jeffrey argues that he was

diligent, acted in good faith, and had reasonable grounds for a continuance.

Therefore, he argues that the trial court abused its discretion in a way that

deprived Jeffrey of his day in court by rendering a judgment based on

evidence submitted without Jeffrey or Kethley present.

Mary argues that the trial court acted in a fair and reasonable manner

in denying the subject motion to continue. In her brief, she offers additional

insight as to why the denial of the motion was justified, claiming that there

were several instances of Jeffrey’s untimely filing and inadequate

communication.

Following Mary’s filing of an amended petition for divorce on July 3,

2018, which requested the termination and partition of the community, the

parties were ordered to file sworn detailed descriptive lists within 45 days of

the order and a traversal within 60 days of service of the filed sworn detailed

descriptive list. Mary’s counsel, Charles H. Kammer, III (“Kammer”), sent

Mary’s sworn detailed descriptive list to Kethley on October 11, 2018. A

Rule 10.1 conference was set for November 1, 2018, to address outstanding

discovery propounded to Jeffrey and to discuss when Jeffrey would provide

his traversal of the sworn detailed descriptive list. Kammer sent a letter to

Kethley on November 1, 2018, regarding the conference, to which he replied

he would provide his outstanding discovery answers within a week. The

answers were never sent.

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On January 16, 2020, Mary filed a “Rule for Contempt and to Make

Past Due Amounts Executory” alleging that Jeffrey was not paying his

portion of the minor child’s medical and extracurricular expenses. She filed

a joint unified list on February 11, 2020, a copy of which was sent to

Kethley. Court was set for April 7, 2020, but was continued to June 1, 2020,

due to COVID delays. Jeffrey filed a motion for continuance via facsimile

on May 31, 2020, the day before the hearing, at 5:05 p.m., which was not

received by the clerk until the following day, the day of the hearing.

The court commenced with the May 31, 2020, hearing and an order

was entered for Jeffrey to provide the outstanding discovery answers by July

7, 2020, and to respond to the joint unified list, and that if Jeffrey failed to

respond to the joint unified list, it would be deemed admitted. The order

was mailed to Kethley on June 12, 2020. Jeffrey filed another motion to

continue on July 14, 2020, the morning of trial, which is the subject of this

appeal.

Kammer informed the court at trial that he received a courtesy copy of

the motion for continuance that morning, but the court checked with the

clerk and confirmed that it had not been filed in the record. The court also

inquired with staff to see if any other communication had been received by

Kethley concerning the continuance or inability to appear, and confirmed

that there was none. The court found it reasonable to move forward with

proceedings considering the lack of communication and the fact the matter

had already been continued several times, albeit once due to COVID. The

court also noted Zoom hearings are often conducted, which could have been

requested by Jeffrey had he contacted the court.

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Mary also refers to the circumstances regarding the September 4,

2020, filing of the “Motion to Amend, Clarify Judgment, Correct

Calculation, New Trial, Enter Equalization Payment in the Form of a

Mortgage and/or Allocate/Sell Asset.” A hearing was scheduled on that

motion for December 7, 2020. Jeffrey filed a motion for devolutive appeal

on October 26, 2020, which was denied as premature. Jeffrey then filed the

motion to recuse, again on the morning of the December 7, 2020, hearing.

La. C.C.P. art. 1601 provides that a continuance may be granted in

any case “if there is good ground therefor.” “Good” ground is something less

than a “peremptory” ground, for which La. C.C.P. art. 1602 declares a

continuance “shall” be granted.

The trial court has great discretion in granting or denying a

continuance under La. C.C.P. art. 1601, and its ruling should not be

disturbed on appeal in the absence of a clear abuse of that discretion. St.

Tammany Parish Hospital v. Burris, 00-2639 (La. App. 1 Cir. 12/28/01),

804 So. 2d 960. “It is a well-established rule that the trial judge has wide

discretion in acting upon a motion for continuance. His ruling will not be

disturbed on appeal in the absence of clear showing of abuse of that

discretion.” Sauce v. Bussell, 298 So. 2d 832 (La. 1974); Jackson v. Royal

Ins. Co., 97-723 (La. App. 3 Cir. 12/17/97), 704 So. 2d 424; Taylor v. Sauls,

99-1436 (La. App. 3 Cir. 9/6/00), 772 So. 2d 686, writs denied, 00-2802, 00-

2805 (La. 12/8/00), 776 So. 2d 461; Howard v. Lee, 50,366 (La. App. 2 Cir.

1/13/16), 185 So. 3d 144. An abuse of discretion occurs when such

discretion is exercised in a way that deprives a litigant of his day in court.

Howard, id.

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The trial court must consider the particular facts of a case when

deciding whether to grant or deny a continuance, including the diligence and

good faith of the party seeking the continuance and other reasonable

grounds. Tarbutton v. Tarbutton, 52,102 (La. App. 2 Cir. 6/27/18), 251 So.

3d 590; Connor v. Scroggs, 35,521 (La. App. 2 Cir. 6/12/02), 821 So. 2d

542. Equally important is the defendant’s corollary right to have his case

heard as soon as is practicable. The trial court may also weigh the condition

of the court docket, fairness to both parties and other litigants before the

court, and the need for orderly and prompt administration of justice.

Tarbutton, supra; Connor, supra; Howard, supra; Wilkerson v. Darden

Direct Distribution, Inc., 53,263 (La. App. 2 Cir. 3/4/20), 293 So. 3d 146.

As Mary notes in her brief, Jeffrey attempted to file the subject

motion for continuance on the morning of trial via facsimile, but did not

contact the court to verify that it had been received. The basis for Jeffrey’s

motion was Kethley’s physician recommendation that was received on July

9, 2020, five days prior to trial. There was ample time to contact the

opposing party and the court regarding a continuance, but Jeffrey delayed

filing until the morning of trial. The trial court did not diminish in any way

Kethley’s health concerns, but merely stated that his condition was not so

severe as to warrant the failure to timely notify the court. Further, Jeffrey

had established a pattern of untimeliness by filing motions several times

either on the eve or morning of court, and each time he failed to follow up

on the filings and did not appear in court to argue the merits of any of the

motions. It is also apparent from the record that Kammer attempted to

correspond with Kethley multiple times prior to court appearances with no

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response. The trial court was justified in its denial of Jeffrey’s motion for

continuance and did not abuse its discretion by proceeding with the

scheduled trial and ultimately rendering judgment in connection thereto.

CONCLUSION

For the foregoing reasons, this Court AFFIRMS the trial court’s

denial of Jeffrey’s motion for continuance and the corresponding August 25,

2020, judgment entered in the community property trial of July 14, 2020.

Court costs are to be taxed to Jeffrey.

AFFIRMED.

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