Stephen Davis v. State of La, Thru the Dotd

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1386 consolidated with 11-1387, 11-1388

STEPHEN DAVIS, ET AL.

VERSUS

STATE OF LA, THROUGH THE DOTD

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NO. 25,319 C/W 25,621 C/W 25,674
HONORABLE GLEN W. STRONG, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese
and Shannon J. Gremillion, Judges.

AFFIRMED.

James D. “Buddy” Caldwell
Attorney General
Ronald J. Fiorenza
Special Assistant Attorney General
Provosty, Sadler, DeLaunay, Fiorenza & Sobel
P. O. Box 1791
Alexandria, LA 71309-1791
(318) 445-3631
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, Through the Department of
Transportation and Development

Clinton Andrew Magoun, Esq.
Attorney at Law
P. O. Box 397
Ferriday, LA 71334
(318) 757-8600
COUNSEL FOR PLAINTIFF/APPELLEE:
Christina Wiley

Brandy McClure
Smith, Taliaferro, Purvis & Boothe
P. O. Box 298
Jonesville, LA 71343
(318) 339-8526
COUNSEL FOR PLAINTIFF/APPELLEE:
Amanda Townsend

Paul A. Lemke, III
Owens & Lemke, Inc.
P. O. Box 595
Harrisonburg, LA 71340
(318) 744-5431
COUNSEL FOR PLAINTIFFS/APPELLEES:
Lori Davis
Stephen Davis

GREMILLION, Judge.

If a party is cast in judgment and assessed only 25% fault in causing the

plaintiffs’ injuries, should it be cast with 100% of the court costs? The

defendant/appellant, State of Louisiana through the Department of Transportation

and Development (DOTD), appeals a judgment and asks that we answer that

question in the negative.

FACTS AND PROCEDURAL HISTORY

The underlying case-in-chief arises from a single-vehicle accident in

Catahoula Parish. The record before us reveals little about the facts of that

accident.

The current controversy arises from cross-motions to tax parties with expert

witness fees and other costs related to a jury trial that was held June 13-21, 2011,

in the three consolidated cases. The jury found that DOTD was 25% at fault.

Plaintiffs/appellees, Stephen Davis and Lori Davis (in the captioned matter),

Christina Wiley, and Amanda Townsend, individually and on behalf of her minor

child, Landon Townsend, filed a motion to have 100% of their costs of trial

assessed to DOTD. DOTD filed a motion of its own seeking to have plaintiffs

assessed with 75% of its costs. The trial court gave oral reasons that reflect its

considerations in assessing DOTD with all costs:

First of all, we had three consolidated lawsuits involved in this
one trial. The plaintiffs in one suit were the parents of the guest
passenger. So I don’t see how any fault could be allocated to the
guest passenger. And the other plaintiffs were the surviving children
of the driver of the vehicle. And the court is going to decline to cast
costs for them. So I’m going to cast all costs on the state and they can
pay their expert fees as court costs or otherwise. And that’s what
we’ll do with this case.

A judgment was prepared and signed that taxed DOTD with $20,433.79 in expert

fees and clerk’s costs. DOTD appeals from this judgment. Its sole assignment of

error asserts that the trial court abused its discretion in taxing DOTD with all costs

of court.

ANALYSIS

The assessment of costs of court after judgment is governed by Louisiana

Code of Civil Procedure article 1920. The default rule is that the party cast in

judgment is liable for all costs. Le v. Nitetown, Inc., 10-1239 (La.App. 3 Cir.

7/20/11), 72 So.3d 374, writ denied, 11-1826 (La. 11/4/11), 75 So.3d 924 (citing

Berzins v. Betts, 457 So.2d 282 (La.App. 3 Cir. 1984)). The article provides that,

except as provided by other law, the court may render judgment for costs or any

part thereof against any party as it considers “equitable.”

Article 1920 vests the trial court with vast, but not unbounded, discretion in

assessing costs. This discretion sometimes creates tension when juxtaposed to the

default rule. In comparative fault cases in particular, deciding who was the

prevailing party can prove challenging. The present case demonstrates that tension.

DOTD could argue that it prevailed because it was cast with such a small

percentage of fault. The appellees, on the other hand, are justified in maintaining

that they succeeded at trial in obtaining a judgment against DOTD and, thus,

prevailed.

There are cases that have assessed costs in accordance with the juries’

allocations of fault. DOTD cites in its favor the case of Broussard v. Delchamps,

Inc., 571 So.2d 855 (La.App. 3 Cir. 1990), writ denied, 575 So.2d 370 (1991), a

slip-and-fall case in which the plaintiff was found by a jury to have been 85% at

fault. The trial court assessed Delchamps, Inc., with 100% of the plaintiff’s court

costs. We amended the judgment to reapportion costs in accordance with the

jury’s allocation of fault.

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Broussard quoted with approval our earlier case of Joeffroy v. Succession of

Arceneaux, 507 So.2d 1281 (La.App. 3 Cir. 1987). That was a suit between the

naked owner of immovable property against a usufructuary to recover ad valorem

taxes. The naked owner’s case was held prescribed, and the naked owner was

taxed with all costs. We reversed the trial court on the prescription issue and on

the issue of costs.

DOTD also cites Donavan v. Jones, 26,883 (La.App. 2 Cir. 6/21/95), 658

So.2d 755, writs denied, 95-1786, 95-1891 (La. 11/3/95), 661 So.2d 1379. In that

case, in which DOTD was also a defendant, three defendants, each of whom had

been assessed with different percentages of fault, were equally assessed the costs

of court. Our colleagues on the second circuit found that because the trial court

provided no explanation for assessing the costs disproportionately to the allocation

of fault, it could find no reason to deviate from article 1920’s default

apportionment of costs.

There are cases that have gone the other direction. Recently, our colleagues

on the second circuit decided the case of Starr v. State ex rel. Department of

Transportation and Development, 46,226 (La.App. 2 Cir. 6/17/11), 70 So.3d 128,

writs denied, 11-1835, 11-1952, 11-1625 (La. 10/21/11), 73 So.3d 386, 387, 388.

Starr involved a one-car accident in which the driver was killed along with one

passenger, and the other three passengers were injured. The estate of the deceased

passenger and another passenger filed suit against DOTD, alleging that there was

no warning of the sharp left-hand turn the driver had failed to negotiate. A jury

decided that the driver was 76% at fault and DOTD was 24% at fault. The trial

court cast DOTD with all costs. DOTD appealed several issues, including the

assessment of costs. The second circuit affirmed the assessment of court costs.

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The Starr case is almost directly on point. The second circuit noted, “[W]e

do not find that the trial court abused its discretion by allocating 100% of the costs

to DOTD. DOTD was the sole defendant, and while there were multiple plaintiffs

only Byrd [the driver] was apportioned any percentage of the liability.” Id. at 145.

Starr cited with approval our decision in Davis v. State, Department of

Transportation and Development, 94-308 (La.App. 3 Cir. 12/7/94), 647 So.2d 552,

writ denied, 95-0034 (La. 1/27/95), 649 So.2d 382.

In Davis, plaintiffs were involved in a two-vehicle, head-on, collision in

Rapides Parish. The other driver was attempting to pass a third vehicle at the time.

In the course of litigation, plaintiffs settled with the oncoming motorist, leaving

DOTD as the only defendant. A bifurcated trial resulted in a finding that DOTD

was 40% at fault and the oncoming motorist 60%. The trial court assessed 100%

of the costs to DOTD. On appeal, we held that the trial court did not abuse its

discretion in awarding all costs against DOTD, as it was the sole remaining

defendant.

We can synthesize these cases to arrive at some guidelines for determining

when a trial court abuses its discretion or exceeds its bounds in awarding court

costs. In Broussard, it was an abuse of discretion to award the sole plaintiff’s costs

against the lone defendant that was minimally at fault. In Donovan, the trial court

abused its discretion in assessing equal shares of the lone plaintiff’s costs against

defendants who were not assessed equal fault. In Starr, only one of several

occupants of the vehicle was found at fault, and that driver was killed in the

accident; thus, his heirs were the parties to the suit. And in Davis, the lone

defendant was properly assessed 100% of the costs when the plaintiffs were free

from fault.

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Applying these principles to the controversy, we find that the trial court did

not abuse its discretion in assessing all costs to DOTD. DOTD was the lone,

minimally-liable, defendant. Only one occupant of the vehicle was assessed fault

in the accident, and that driver was killed, as in Starr. The trial court gave a

reasoned explanation for its deviation from the default apportionment.

CONCLUSION

The trial court provided a well-reasoned explanation for its decision to

deviate from the default method of apportioning court costs provided in Louisiana

Code of Civil Procedure article 1920. Those reasons comport with methods of

apportionment that have been approved in the jurisprudence. Under these

circumstances, we conclude that the trial court did not abuse its discretion in taxing

all costs to DOTD. The judgment of the trial court is affirmed. Costs of this

appeal in the amount of $336.97 are assessed to defendant/appellant, State of

Louisiana through the Department of Transportation and Development.

AFFIRMED.

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