Charlotte Alfred v. Larry Butler

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-441

CHARLOTTE ALFRED

VERSUS

LARRY BUTLER, KIMBERLY ARMSTRONG,
LOUISIANA REHABILITATION, INC. AND
ABC INSURANCE COMPANY

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 105625-F
HONORABLE EDWARD M. LEONARD, JR., DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Marc T. Amy, Billy H. Ezell, and James T. Genovese, Judges.

AFFIRMED.

Chris Villemarette
1606 B St. Mary Street
Scott, Louisiana 70583
(337) 232-3100
COUNSEL FOR DEFENDANTS/APPELLANTS:
Kimberly Armstrong and Louisiana Rehabilitation Services, Inc.

Lucretia Pecantte-Burton
Post Office Box 13738
New Iberia, Louisiana 70562-3738
(337) 367-1779
COUNSEL FOR PLAINTIFF/APPELLEE:
Charlotte Alfred

GENOVESE, Judge.

Following an adverse judgment and denial of new trial, Defendants, Kimberly

Armstrong and Louisiana Rehabilitation, Inc. (Louisiana Rehabilitation), appeal only

the denial of their Motion for New Trial. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Charlotte Alfred, seventy-two years of age, filed a negligence action

against Larry Butler, Kimberly Armstrong,1 and Louisiana Rehabilitation, alleging

that Mr. Butler “committed a sexual assault and battery and rape” against her on June

29, 2005. Kimberly Armstrong is the sole-owner of Louisiana Rehabilitation, a

rehabilitation clinic in New Iberia, Louisiana.

On the date of the alleged assault, Ms. Alfred was a physical therapy patient

of Louisiana Rehabilitation. At the time of the alleged assault, Ms. Alfred was being

transported to her home from Louisiana Rehabilitation in a patient-transport van

being driven by Louisiana Rehabilitation’s employee, Mr. Butler.

A bench trial was held on July 18, 2007, on Ms. Alfred’s vicarious liability

claims against Ms. Armstrong and Louisiana Rehabilitation.2 At the conclusion of

the trial, the trial court took the matter under advisement and allowed the parties to

file post-trial memoranda. On August 15, 2007, the trial court issued Reasons for

Judgment wherein it ruled that Defendants were solidarily liable with Mr. Butler to

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Ms. Armstrong was named as a Defendant both individually and as the sole-owner of
Louisiana Rehabilitation. Ms. Alfred alleged that Ms. Armstrong was personally liable for her
damages because Ms. Armstrong “acted in bad faith as shareholder, director[,] and officer of the
corporation by breaching her fiduciary duty by failing to secure insurance on behalf of [Louisiana
Rehabilitation] and negligently [hiring Mr. Butler.]”
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On December 5, 2005, the trial court signed a default judgment against Mr. Butler, awarding
Ms. Alfred damages in the amount of $500,000.00. Though Mr. Butler is named as a Defendant in
this action, for purposes of this appeal, we use the term “Defendants” to refer only to Ms. Armstrong
and Louisiana Rehabilitation.

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Ms. Alfred for damages in the amount of $500,000.00. A judgment to this effect was

signed by the trial court on September 21, 2007.

On October 1, 2007, Defendants filed a Motion for Judgment Notwithstanding

the Verdict (JNOV) or, Alternatively, a Motion for New Trial. Defendants sought

a new trial on the basis that “new evidence has come to light which radically

challenges the facts alleged in the petition as well as the basis for the court’s

December 5, 2005 judgment.” Defendants offered the trial court’s minutes from Mr.

Butler’s November 28, 2006 criminal trial on the charge of aggravated rape involving

the same incident alleged in the civil suit in support of their argument that newly

discovered evidence warranted a new trial in this civil matter.

According to the Defendants, a mistrial was declared in the criminal

proceeding after the trial court determined that certain witnesses allegedly perjured

themselves during the course of Mr. Butler’s criminal trial. In Defendants’

Supplemental Memorandum in Support of Motion for JNOV and Alternatively New

Trial, Defendants argue that “[t]he testimony in [Mr. Butler’s November 26, 2006

criminal trial] shows that [D]efendants were the victims of fraud and that Charlotte

Alfred was not raped but engaged in consensual sex with her boyfriend, Larry

Butler.” Defendants admit that in March of 2007, Mr. Butler pled guilty to

committing second degree battery against Ms. Alfred on June 29, 2005.

The trial court held a hearing on Defendants’ motion on August 29, 2008. At

said hearing, Defendants argued only for a new trial, which the trial court denied. A

judgment denying Defendants’ Motion for New Trial was signed by the trial court on

November 18, 2008. Defendants appeal.

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ASSIGNMENTS OF ERROR

In their two assignments of error, Defendants assert that “the trial court erred

in failing to exercise its discretion [in] denying [D]efendant’s [M]otion for [N]ew

[T]rial” and “[t]he trial court erred in denying [D]efendant’s [M]otion for [N]ew

[T]rial when an examination of the facts clearly demonstrates that a miscarriage of

justice will result.”

STANDARD OF REVIEW

In Williams v. W.O. Moss Regional Medical Center, 05-22, pp. 4-5 (La.App.

3 Cir. 6/1/05), 903 So.2d 1150, 1153, this court stated:

The applicable standard of review in ruling on a motion for new trial is
whether the trial court abused its discretion. Martin [v. Heritage Manor
South Nursing Home, 00-1023 (La. 4/3/01)], 784 So.2d 627. In order to
apply this standard, “[w]e are faced with the balancing of two very
important concepts: the great deference given to the jury in its fact
finding role and the great discretion given to the trial court in deciding
whether to grant a new trial.” Davis v. Wal-Mart Stores, Inc., 00-445,
pp. 11-12 (La.11/28/00), 774 So.2d 84, 93-94. Though the “[trial] court
has much discretion [in determining whether to grant a new trial] . . . .,
this court will not hesitate to set aside the ruling of the trial judge in a
case of manifest abuse.” Lamb v. Lamb, 430 So.2d 51, 53 (La.1983).

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 1973 provides that “[a] new trial

may be granted in any case if there is good ground therefor, except as otherwise

provided by law.” In brief, Defendants argue that “[t]he ‘good grounds’ in this case

are evident from the fact that the State reduced the charges against Mr. Butler . . . .”

Louisiana Code of Civil Procedure Article 1972 provides, in pertinent part:

A new trial shall be granted, upon contradictory motion of any
party, in the following cases:

(1) When the verdict or judgment appears clearly contrary to the
law and the evidence.

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(2) When the party has discovered, since the trial, evidence
important to the cause, which he could not, with due diligence, have
obtained before or during the trial.

Defendants contend that they “were not aware of the strange proceedings at the

criminal trial”; therefore, Defendants “had no reason of knowing that the court

granted a mistrial or that [Mr.] Butler may have been innocent since he had already

served almost three years in prison.” Defendants also note that “[t]he criminal trial

took place in St. Mary Parish, while the civil trial proceeded in Iberia Parish.”

Ms. Alfred argues that Defendants had ample opportunity to obtain the

information it now contends is newly discovered evidence prior to the civil trial held

in this matter on July 18, 2007. In brief, Ms. Alfred argues that “[a]ll of the

information surrounding the incidents that occurred in the criminal trial could have

been easily obtained by [Defendants]. All that information was public record.” We

agree.

Our review of the record supports the trial court’s determination that a new trial

in this matter was not warranted. Defendants had from November of 2006, the date

Mr. Butler’s criminal trial ended in a mistrial, until the civil trial in July of 2007 to

obtain the information it now argues warrants a new trial in the civil case filed by Ms.

Alfred. Had Defendants exercised due diligence in preparation for the civil trial, this

evidence would have been available and usable in their defense. Further, Mr. Butler’s

guilty plea to second degree battery in March of 2007 constituted an admission of

wrongdoing and figuratively eviscerated the defense that a consensual sexual

encounter occurred between Ms. Alfred and Mr. Butler on June 29, 2005. Defendants

have failed in their burden of proving a “good ground” for a new trial pursuant to

La.Code Civ.P. art. 1973. Likewise, Defendants have failed to prove due diligence

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in obtaining newly-discovered evidence pursuant to La.Code Civ.P. art. 1972(2).

Therefore, we find no abuse of discretion in the trial court’s denial of Defendants’

Motion for New Trial.

DECREE

For the above reasons, the judgment of the trial court denying Defendants’

Motion for New Trial is affirmed. Costs of this appeal are assessed against

Defendants/Appellants, Kimberly Armstrong and Louisiana Rehabilitation, Inc.

AFFIRMED.

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