Michael Cal Clary and Catherine Ann Hixon Clary v. State Farm Mutual Automobile Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-92

MICHAEL CAL CLARY AND CATHERINE ANN HIXON CLARY

VERSUS

STATE FARM MUTUAL AUTOMOBILE INS. CO., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2015-2657
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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D. KENT SAVOIE

JUDGE

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Court composed of Billy H. Ezell, John E. Conery, and D. Kent Savoie, Judges.

AFFIRMED.

Hunter William Lundy
Matthew E. Lundy
Daniel A. Kramer
Max E. Guthrie
Lundy, Lundy, Soileau & South, LLP
Post Office Box 3010
Lake Charles, LA 70602
(337) 439-0707
COUNSEL FOR PLAINTIFFS/APPELLEES:
Michael Cal Clary
Catherine Ann Hixon Clary

Mark Nolan Mallery
Lisa Diane Hanchey
Jacob C. Credeur
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
701 Poydras St., Suite 3500
New Orleans, LA 70139
(504) 642-3840
COUNSEL FOR DEFENDANTS/APPELLANTS:
State Farm Mutual Automobile Insurance Company
State Farm Life Insurance Company
State Farm Fire and Casualty Company
State Farm General Insurance Company
State Farm VP Management Corporation
State Farm Bank
F.S.B. Insurance Placement Services, Inc.
Patrick White
Kimberly Rollins White

Robert Jefferson David, Jr.
Alyse S. Richard
Juneau David, APLC
Post Office Drawer 51268
Lafayette, LA 70505-1268
(337) 269-0052
COUNSEL FOR DEFENDANTS/APPELLANTS:
David Haymon
Gene Haymon

Tiffany Powers
Michael Barry
Michael Kenny
Alston & Bird, LLP
1201 W. Peachtree St.
Atlanta, GA 30309-3424
(404) 881-7000
COUNSEL FOR DEFENDANTS/APPELLANTS:
State Farm Mutual Automobile Insurance Company
State Farm Life Insurance Company
State Farm Fire and Casualty Company
State Farm General Insurance Company
State Farm VP Management Corporation
State Farm Bank
F.S.B. Insurance Placement Services, Inc.
Patrick White
Kimberly Rollins White

SAVOIE, Judge.

The Defendants-Appellants, State Farm Mutual Automobile Insurance

Company; State Farm Life Insurance Company; State Farm Fire and Casualty

Company; State Farm General Insurance Company; State Farm VP Management

Corporation; State Farm Bank, F.S.B.; and Insurance Placement Services, Inc.;

Patrick White; and Kimberly Rollins White (hereinafter, collectively, State Farm

Defendants), and Defendants-Appellants, David Haymon and Gene Haymon

(hereinafter collectively the Haymon Defendants), separately appeal the trial

court’s denial of their motions seeking to stay discovery pending the Louisiana

Supreme Court’s decision on applications for supervisory review of the trial

court’s and this court’s denial of their exceptions of partial no cause of action. For

the reasons assigned, we affirm the trial court’s decision to deny the stay.

As stated above, this matter was previously before this court to review the

trial court’s denial of exceptions of partial no cause of action that sought the

dismissal of the Clarys’ claims based on violations of the Louisiana Antitrust

Statute, La.R.S. 51:122, and the Louisiana Unfair Trade Practices Act (LUTPA),

La.R.S. 51:1401, et seq. This court affirmed the trial court’s ruling. This court

wrote:

In their twenty-four page petition, the Clarys sought damages
against the defendants based on a number of causes of action,
including breach of contract; detrimental reliance in contract;
conspiracy in restraint of trade in violation of the antitrust statute;
violations of LUTPA; intentional infliction of emotional distress, and
conspiracy to intentionally inflict emotional distress; conspiracy to
punish the Clarys for filing a complaint with the Louisiana
Department of Insurance (Insurance Department), i.e., being a
“whistleblower”; breach of contractual stipulation pour autri; and loss
of consortium. All of these causes of action arise from the same

factual background. Still, the only two at issue in this appeal are the
antitrust and LUTPA causes of action.

Clary v. State Farm Mut. Auto. Ins. Co., 16-168, p. 3 (La.App. 3 Cir. 11/23/16),

204 So.3d 1102, 1107. The Defendants have filed writ applications with the

Louisiana Supreme Court challenging the denial of these exceptions.

Based upon the arguments set forth in the briefs and oral argument before

this court, while the Defendants were pursuing appellate review of the ruling on

their exceptions, attempts at discovery have also been pursued by the Plaintiffs.

The Defendants filed motions aimed at having the trial court stay all discovery in

the case until the supreme court rules on their writ applications. The trial court

denied the request, stating, “Pursuant to telephone conference Court advised

parties that the motion was DENIED ex parte with the trial court deferring to

reviewing court.” Therefore, the Defendants have filed appeals seeking a stay

from this court.1

Defendants contend that a stay of all discovery is proper because the scope

of discovery will be directly affected by the ruling to be issued by the supreme

court as to whether the Plaintiffs have stated causes of action for violations of the

antitrust law and LUTPA. Although the Defendants refer to all discovery, the only

specific discovery referenced both in this court and in the trial court are the

depositions of the Haymon Defendants.

“It is well established that trial courts in Louisiana have broad discretion

when regulating pre-trial discovery, which discretion will not be disturbed on

appeal absent a clear showing of abuse.” Moak v. Illinois Cent. R.R. Co., 631

1
Louisiana Revised Statutes 51:135 states, in pertinent part, “All interlocutory judgments in the
cases affected by this Part, and not otherwise provided for, shall be appealable.” No party to this
action has raised any issue challenging this court’s jurisdiction to hear the issues presented in this
appeal.

2

So.2d 401, 406 (citations omitted). This court recognized in Clary, 204 So.3d

1102, 1107, that all of the causes of action set forth or attempted to be set forth in

the Clarys’ petition “arise from the same factual background.” As pointed out by

the Clarys in their brief filed in this appeal and in oral argument before this court,

the fact depositions of the Haymon Defendants will be necessary regardless of the

supreme court’s ruling on the exceptions of partial no cause of action. Also, as

noted by the Clarys, even if the supreme court were to reverse this court and the

trial court, unless no amendment could be made to the petition to state causes of

action based on the antitrust statute and LUTPA, the Clarys would be entitled to

attempt to amend the petition to state causes of actions based on these statutes.

The trial court’s ruling states that this matter was decided following a

telephone conference call. Thus, no hearing was conducted in court, and no

evidence was introduced into the record. The Defendants point out that the trial

court’s ruling states that the trial court is “deferring to reviewing court,” but does

not state explicitly to which reviewing court the trial court is deferring. Regardless,

the trial court’s ruling clearly states that the motions were being denied. We find

that, on the showing made by the State Farm Defendants and the Haymon

Defendants, they have failed to show that they are entitled to a stay of discovery.

Therefore, finding no showing of a clear abuse of discretion, we affirm the trial

court’s ruling.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.

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