Basic Home Care Services, Inc. v. William Dore

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-1036

BASIC HOME CARE SERVICES, INC.

VERSUS

WILLIAM DORE

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 106524-E
HONORABLE KEITH R. J. COMEAUX,
DISTRICT COURT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and James T. Genovese, Judges.

AFFIRMED.

Lynden J. Burton
Pecantte-Burton & Burton
117 East Pershing Street - Suite B
Post Office Box 13738
New Iberia, Louisiana 70562-3738
(337) 367-1779
COUNSEL FOR PLAINTIFF/APPELLANT:
Basic Home Care Services, Inc.

Edward C. Abell, Jr.
Onebane Law Firm
Post Office Box 3507
Lafayette, Louisiana 70502-3507
(337) 237-2660
COUNSEL FOR DEFENDANT/APPELLEE:
William Dore

GENOVESE, JUDGE.

In this breach of contract case, Basic Home Care Services, Inc. (Basic Home

Care) appeals the trial court’s grant of William Dore’s (Dore) motion for directed

verdict and the trial court’s sequestration ruling. For the following reasons, we

affirm.

FACTS

Plaintiff, Basic Home Care, is a licensed provider of a variety of non-medical,

independent living services for its elderly and disabled clients. According to the

testimony of Omar Pecantte, the business office manager of Basic Home Care, in

November of 2005, Elaine Dore (Mrs. Dore),1 who had been a previous client,

contacted Basic Home Care about retaining its services. Omar Pecantte further

testified that after he spoke to Mrs. Dore about the services and the terms thereof, at

her request, he faxed an employment agreement to her son, Dore. The agreement

faxed to Dore by Basic Home Care was a twelve month contract for independent

living services. Omar Pecantte testified that Dore edited the document by substituting

his own name for that of his mother as the person responsible for paying for the

services, signed the document, and faxed it back to Basic Home Care. Omar Pecantte

and Richard Pecantte, the chief executive officer of Basic Home Care, testified that

they both signed the document and faxed it back to Dore.2 Although the parties

disagree on the reason and manner in which it occurred, Richard Pecantte testified

that on November 6, 2005, Mrs. Dore advised Basic Home Care that she no longer

desired its services. Basic Home Care subsequently filed suit against Dore, alleging

that he was liable for breaching the contract between the parties.

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Mrs. Dore is the mother of Defendant, Dore.
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In his answer, Dore did not admit the existence of a contract, but plead that if a contract did
exist, it was a written instrument and it was the best evidence of its contents.

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At the commencement of trial, Dore moved to sequester the witnesses. All of

the witnesses were sworn in and ordered to leave the courtroom until they were called

to testify, except Richard Pecantte and Mrs. Dore. Basic Home Care objected to Mrs.

Dore being allowed to remain in the courtroom, and the trial court overruled the

objection.

After the presentation of Basic Home Care’s case, Dore moved for a directed

verdict3 asserting that Basic Home Care failed to prove that a contract existed

between the parties as alleged. The trial court ruled that there was an oral contract

for five days of service between Basic Home Care and Mrs. Dore, which was

admittedly paid, but that there was no contract between Basic Home Care and Dore.

The trial court then granted Dore’s motion for direct verdict.

Basic Home Care appeals both the trial court’s sequestration ruling and its

grant of directed verdict in favor of Dore. For the following reasons, we affirm.

ISSUES

The following issues are raised by Basic Home Care for our review:

1. Whether the trial court erred in not requiring Elaine Dore
to leave the courtroom until called as a witness as provided
by the rules of sequestration.

2. Whether the trial court erred in granting the motion for
directed verdict on behalf of Dore, finding that there was
no written contract between Dore and Basic Home Care.

LAW AND ARGUMENT

SEQUESTRATION

At the beginning of the trial, Dore orally moved to sequester the witnesses.

The witnesses were identified, sworn, and instructed by the trial court on the rules

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Dore’s motion for directed verdict is mislabled. A directed verdict can only be had in jury
trials pursuant to La.Code Civ.P. art. 1810. This case was not a jury trial, but instead a bench trial.
Hence, Dore’s motion for directed verdict should have been a motion for involuntary dismissal
pursuant to La.Code Civ.P. art. 1672(B).

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of sequestration. Counsel for Basic Home Care requested that Richard Pecantte and

Omar Pecantte be allowed to remain in the courtroom. The trial court allowed only

Richard Pecantte to remain in the courtroom as the corporate representative of Basic

Home Care. When Dore’s counsel requested that Mrs. Dore4 remain in the

courtroom, Basic Home Care objected to her being exempt from sequestration since

she was not the named defendant. The trial court referred to the provisions of

La.Code Evid. art. 615 and found that Mrs. Dore, who was the person to whom

services were provided by Basic Home Care, should be allowed to remain in the

courtroom to assist counsel for Dore during the witnesses’ testimony; thus, she was

“essential to his defense.” Therefore, the trial court allowed Mrs. Dore to remain in

the courtroom with defense counsel. We find no abuse of the trial court’s discretion

in exempting Mrs. Dore from the rule of sequestration.

The relevant provision governing the sequestration of witnesses at trial is

La.Code Evid. art. 615, which provides, in pertinent part, as follows:

A. As a matter of right. On its own motion the court may, and on
request of a party the court shall, order that the witnesses be excluded
from the courtroom or from a place where they can see or hear the
proceedings, and refrain from discussing the facts of the case with
anyone other than counsel in the case. In the interests of justice, the
court may exempt any witness from its order of exclusion.

B. Exceptions. This Article does not authorize exclusion of any
of the following:

(1) A party who is a natural person.

(2) A single officer or single employee of a party which is not a
natural person designated as its representative or case agent by its
attorney.

(3) A person whose presence is shown by a party to be essential
to the presentation of his cause such as an expert.

(4) The victim of the offense or the family of the victim.

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Defendant, William Dore, was not present at trial.

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The jurisprudence holds that “it is within the broad discretion of the trial court

to determine whether to exempt a witness from its sequestration order.” Rhone v. Boh

Bros., 01-270, p. 3 (La.App. 4 Cir. 12/12/01), 804 So.2d 764, 766 (citing State v.

Simien, 95-1407, p. 8 (La.App. 3 Cir. 7/24/96), 677 So.2d 1138, 1143). As the trial

court noted, Mrs. Dore was the individual to whom the services were provided by

Basic Home Care. As such, it was she who would have knowledge of the facts and

the truthfulness of the witnesses’ testimony necessary to assist defense counsel.

Therefore, we find no abuse of the trial court’s broad discretion in his refusal to order

the sequestration of Mrs. Dore. Nevertheless, this issue is rendered moot since this

court affirms the trial court’s grant of directed verdict (motion for involuntary

dismissal) as hereinafter set forth.

MOTION FOR INVOLUNTARY DISMISSAL

“The grant of an involuntary dismissal is subject to the manifest error standard

of review.” Barraka v. Bowie, 04-738, p. 3 (La.App. 3 Cir. 11/10/04), 886 So.2d

1242, 1245 (quoting Kite v. Carter, 03-378, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d

1271, 1274).

The procedural mechanism for an involuntary dismissal is provided by La.Code

Civ.P. art. 1672, which provides, in pertinent part:

B. In an action tried by the court without a jury, after the plaintiff
has completed the presentation of his evidence, any party, without
waiving his right to offer evidence in the event the motion is not
granted, may move for a dismissal of the action as to him on the ground
that upon the facts and law, the plaintiff has shown no right to relief.
The court may then determine the facts and render judgment against the
plaintiff and in favor of the moving party or may decline to render any
judgment until the close of all the evidence.

In the instant matter, following the presentation of evidence by Basic Home

Care, Dore moved for a directed verdict (involuntary dismissal) on the grounds that

Basic Home Care failed to prove the contract upon which its claim was based. The

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trial court opined that the evidence established that an oral contract existed between

Mrs. Dore and Basic Home Care, but that there was no evidence establishing the

existence of a contract between Basic Home Care and William Dore. We agree.

Basic Home Care had the burden of proving the existence of the obligation

upon which it filed suit. La.Civ.Code art. 1831. Additionally, although there was no

legal requirement that the contract be in writing, when “the parties have contemplated

a certain form, it is presumed that they do not intend to be bound until the contract is

executed in that form.” La.Civ.Code art. 1947. In the case at bar, the record contains

a document entitled “EMPLOYMENT CONTRACTUAL AGREEMENT” which,

according to the testimony, was faxed by Basic Home Care to Dore. Each time the

name “Elaine” appears in the document, it is marked through and the name “William”

is handwritten above. Consistent therewith, “she” is replaced by “he” in the

agreement. The document appears to have been signed by Dore and was faxed back

to Basic Home Care. Although Omar Pecantte testified that he and Richard Pecantte

signed the document and faxed it back to Dore, the signed document was not admitted

into evidence; it is not in the record; and Dore did not testify at the trial. Therefore,

we find that the testimony and the document which was introduced were insufficient

to prove that a contract was perfected between Dore and Basic Home Care. At best,

Basic Home Care only proved an oral contact with Mrs. Dore for five days of service,

which was undisputedly paid. Given Basic Home Care’s failure to prove the

existence of a contract for twelve months service with Dore, written or otherwise, the

trial court did not err in granting Dore’s motion for directed verdict (involuntary

dismissal). Therefore, we affirm the judgment of the trial court.

DECREE

For the foregoing reasons, the judgment of the trial court granting the motion

for directed verdict (involuntary dismissal) on behalf of William Dore is affirmed.

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The sequestration issue is moot.

Costs of this appeal are assessed against Plaintiff/Appellant, Basic Home Care

Services, Inc.

AFFIRMED.

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