Timothy Bernard, Sr. v. Lafayette City-Parish Consolidated Government

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1341

TIMOTHY BERNARD, SR., ET AL.

VERSUS

LAFAYETTE CITY-PARISH
CONSOLIDATED GOVERNMENT, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20107124
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

AFFIRMED.

F. Douglas Wimberly
Cloyd, Wimberly & Villemarette
P. O. Box 53951
Lafayette, LA 70505-3951
(337) 289-6906
COUNSEL FOR DEFENDANTS/APPELLEES:
Thomas R. Carroll III
Lafayette City-Parish Consolidated Government

Timothy Bernard, Sr.
Evelyn Bernard
Sheman Bernard
In Proper Persons
1224 Carmel Drive
Lafayette, LA 70501
(337) 212-1094

PICKETT, Judge.

Landowners appeal the dismissal of their suit for damages allegedly caused

by the installation of drainage improvements by the governing municipality. For

the following reasons, we affirm.

FACTS

Timothy Bernard Sr., Evelyn Bernard, and Sheman Bernard filed suit against

Lafayette City-Parish Consolidated Government, Joey Durel, and the Public Works

Department (hereinafter collectively referred to as LCG), seeking damages

allegedly caused by LCG when it installed “a poor drainage system” on or adjacent

to their property. They contend LCG’s actions caused a hazardous sinkhole and

damage to their property. See Bernard v. Lafayette City-Parish Consol. Gov’t, 11-

816 (La.App. 3 Cir. 12/7/11), 80 So.3d 665.

LCG filed an exception of prescription seeking dismissal of the Bernards’

suit. LCG asserted that the Bernards’ claims prescribed on October 30, 2009, but

they did not file suit until October 29, 2010. The trial court granted the exception

and dismissed the Bernards’ suit. The Bernards appealed, and another panel of this

court determined their claims were not prescribed under La.R.S. 9:5624. 1 The

panel reversed the trial court’s judgment and remanded the matter for further

proceedings. Id.

On remand, a trial on the merits was scheduled for August 27, 2012. The

Bernards were all present in court. When the matter was called for trial,

1
Louisiana Revised Statutes 9:5624 provides: “When private property is damaged for
public purposes any and all actions for such damages are prescribed by the prescription of two
years, which shall begin to run after the completion and acceptance of the public works.”

Mrs. Sheman2 Bernard stated: “We, the Bernard family, affirm and understand . . .

this proceeding, but we plead the Fifth on this trial on the basis of conflict of

interest and judicial issues.” Mrs. Bernard further stated, “We’re not continuing

with this trial . . . on the basis of conflict of interest.” She continued, “We’re

seeking another judicial court to see [sic] this case. So we plead the Fifth on this

trial.”

The trial court explained to the Bernards that this matter does not involve the

Fifth Amendment’s right against self-incrimination. The trial court further

explained: “today is your day . . . to present evidence . . . as to whether or not you

can prove that your property was damaged. This is your day in court.” After more

discussion in which the Bernards stated that the trial court did not have

jurisdiction, the following exchange occurred:

THE COURT: You have filed a claim in this court, and this Court
does have jurisdiction over this matter.

MR. BERNARD: No, you don’t.

THE COURT: And this Court is prepared to proceed today and let
you put on evidence in order to prove your claims.

MR. BERNARD: Okay.

THE COURT: If you are telling me that you are refusing to put on
any evidence, then this Court is going to have to
dismiss your claim.

MR. BERNARD: Dismiss it, then.

MRS. BERNARD: Well, go ahead.

MR. BERNARD: That’s what we’re asking you to do.

2
The transcript refers to “Charmaine Bernard,” which we take to be a reference to
plaintiff “Sheman Bernard.”

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The Bernards then asked the trial court to “make your ruling so that we may

leave,” and the trial court restated that if they did not put on evidence, their claim

would be dismissed with prejudice. Mr. Bernard replied, “do what you got to do,”

and the trial court continued:

THE COURT: And the Court will so do it, because they were
given the opportunity, they are adamantly refusing
to present any evidence, and, therefore, this Court
has no alternative but to dismiss their claim with
prejudice.

The matter was then concluded. Later, that same day, the Bernards filed a Motion

and Order for Appeal, and this appeal was lodged. LCG filed a Motion to Dismiss

Appeal which was ordered to be considered on the merits with the appeal. LCG

thereafter filed an Answer seeking damages for frivolous appeal.

DISCUSSION

In their Motion for Appeal and Brief to this court, the Bernards assert that

they pled the Fifth Amendment on two bases: (1) newly-discovered evidence and

(2) the trial court was the wrong court and had no jurisdiction to hear this case.

They further assert that there are violations of environmental regulations, codes,

and statutes which require a complete judicial review by the supreme court or this

court. The Bernards further assert that their civil rights and constitutional rights

have been violated by the actions of LCG. They cite facts, statutes, and cases

which they contend support their claims. The Bernards’ Motion and Brief also

indicate that they believe the trial court had a conflict of interest which prevented it

from hearing their case; that LCG damaged their property and affected the value

and use of their property when it performed drainage construction on or adjacent to

their property; and that LCG damaged their reputations during the course of the

construction.

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LCG urges that the Bernards waived their right to appeal because they

acquiesced in the trial court’s judgment dismissing their suit. Louisiana Code of

Civil Procedure Article 2085 provides, in pertinent part: “An appeal cannot be

taken by a party who confessed judgment in the proceedings in the trial court or

who voluntarily and unconditionally acquiesced in a judgment rendered against

him.”

Acquiescence in a judgment is never presumed, and the party alleging
abandonment must establish by direct or circumstantial evidence that
the party now appealing intended to acquiesce and to abandon his
right to appeal. Furthermore, appeals are favored in law, and
forfeiture of a party’s right to appeal through acquiesce[nce] should be
decreed only when the party’s intention to acquiesce and to abandon
his right of appeal is clearly demonstrated.

Hoyt v. State Farm Mut. Auto. Ins. Co., 413 So.2d 1003, 1005 (La.App. 3 Cir.)

(quoting Koerner & Lambert, A Prof’l Law Corp. v. Allstate Ins. Co., 363 So.2d

546 (La.App. 4 Cir. 1978)), writ denied, 423 So.2d 1180 (La.1982) (citations

omitted).

The record shows that the Bernards acquiesced in the judgment.

Mrs. Bernard stated, “We’re not continuing with this trial . . . . We’re seeking

another judicial court to see this case.” The Bernards maintained their position

after the trial court explained, “You have filed a claim in this court, and this Court

does have jurisdiction over this matter . . . . If you are telling me you are refusing

to put on any evidence, then this Court is going to have to dismiss your claim.” At

which point, Mr. Bernard stated, “Dismiss it . . . That’s what we’re asking you to

do.”

We understand the Bernards are not attorneys and may not have understood

the ramifications of their acquiescence in the trial court’s dismissal of their claims;

however, they “voluntarily and unconditionally acquiesced in [the] judgment

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rendered against [them].” La.Code Civ.P. art. 2085. Moreover, the record

establishes that the trial court was understanding and patient with the Bernards

throughout the course of the hearing because they are not attorneys and carefully

explained the gravity of their failure to present their case at that time. The

Bernards, however, disregarded the trial court’s explanations and warnings.

While “[a] layman who represents himself cannot be held to the same

standards of skill and judgment which must be attributed to an attorney . . . he

assumes responsibility for his own inadequacy and lack of knowledge of both

procedural and substantive law.” Gray v. State, 05-617, p. 13 (La.App. 3 Cir.

2/15/06), 923 So.2d 812, 821 (quoting Rader v. Dep’t of Health and Hosps., Office

of Pub. Health, Eng’g Servs., 94-763, p. 5 (La.App. 1 Cir. 3/3/95), 652 So.2d 644,

646 (citations omitted)). The Bernards not only refused to proceed with their case

after the trial court explained that their failure to do so would result in the dismissal

of their case, they also instructed the trial court to dismiss the case. Their refusal

to heed the trial court’s warning mandates dismissal of this appeal.

LCG answered this appeal, seeking an award of damages, including attorney

fees and costs, against the Bernards for filing a frivolous appeal, as provided in

La.Code Civ.P. art. 2164. 3 Appeals are favored in Louisiana. Blane Devillier

Trucking, Inc. v. Authement, 03-590 (La.App. 3 Cir. 11/5/03), 858 So.2d 795.

Moreover, Article 2164 is penal in nature and must be strictly construed. Ray v.

3
Louisiana Code of Civil Procedure Article 2164 provides:

The appellate court shall render any judgment which is just, legal, and proper upon the
record on appeal. The court may award damages, including attorney fees, for frivolous appeal or
application for writs, and may tax the costs of the lower or appellate court, or any part thereof,
against any party to the suit, as in its judgment may be considered equitable.

5

Leatherman, 96-542 (La.App. 3 Cir. 10/9/96), 688 So.2d 1133, writ denied, 96-

2709 (La. 1/6/97), 685 So.2d 123.

We determine above that the Bernards forfeited their right to appeal;

however, we also recognize that as lay people, they did not comprehend the

consequences of their actions in the trial court. Additionally, it is clear they

strongly believe in their claims. For these reasons, we decline to award damages

or attorney fees.

DISPOSITION

The judgment of the trial court dismissing this case is affirmed. All costs are

assessed to Timothy Bernard Sr., Ethel Bernard, and Sheman Bernard.

AFFIRMED.

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