Gregory Scarborough v. Tonya D. Scarborough

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1185

GREGORY SCARBOROUGH
VERSUS

TONYA D. SCARBOROUGH

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 232,534
HONORABLE WILLIAM GREGORY BEARD, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Sylvia R. Cooks, Phyllis M. Keaty, and Van H. Kyzar, Judges.

AFFIRMED.

George C. Gaiennie, III

Gaiennie Law Firm, L.L.C.

1920 Jackson Street

Alexandria, LA 71301

(318) 767-1114

COUNSEL FOR DEFENDANT/APPELLANT:
Tonya D. Scarborough

Koby D. Boyett

2230 South MacArthur Drive, 2" Floor

Alexandria, LA 71301

(318) 442-9462

COUNSEL FOR PLAINTIFF/APPELLEE:
Gregory Scarborough

KYZAR, Judge.

Defendant/Appellant, Tonya D. Scarborough (Tonya), appeals a judgment
partitioning certain property of the former community of acquets and gains that
existed between her and her former husband, Plaintiff/Appellee Gregory
Scarborough (Gregory). For the reasons herein set forth, we affirm.

FACTS AND PROCEDURAL HISTORY

Tonya and Gregory were married on September 16, 1994, concurrently
creating a community of acquets and gains. The parties were divorced by
judgment rendered on October 30, 2008, thereby terminating the community of
acquets and gains between them retroactive to the August 18, 2008 filing date of
the Petition for Divorce, per La.Civ.Code art. 159. On March 3, 2014, Tonya filed
a Petition for Partition of Community Property pursuant to La.R.S. 9:2801.

In response to the petition, Gregory filed his detailed descriptive list on
February 16, 2016, and Tonya filed her detailed descriptive list on March 15, 2016.
The trial of the partition proceeding was held over two days, January 27, 2017 and
May 31, 2017. The trial court assigned written reasons for judgment and signed a
judgment on August 16, 2017.

Tonya filed a motion for a new trial on August 30, 2017, alleging that the
judgment rendered was contrary to the law and evidence. The motion was denied
by the trial court without a hearing on September 7, 2017. This appeal followed,
wherein Tonya asserts two assignments of error:

(1) The court erred in refusing to admit into evidence all of the
photographs proffered by Tonya Scarborough.

(2) The court erred in denying Tonya’s motion for new trial without
a hearing.

OPINION

Refusal to Admit Photographic Evidence

Tonya asserts on appeal! that the trial court erred in excluding certain
photographs from evidence. Tonya sought introduction of a number of
photographs into evidence during the trial. The trial court allowed the introduction
of some of the photographs as evidence but limited the number of the exhibits.
During the second day of trial, Tonya testified as follows:

Q: We looked at some photographs that you had last time. Some

of those were admitted into evidence, some were not. The ones that

were not admitted into evidence, you thought should be admitted into

evidence, didn’t you not —
Yes.

- did you not?
Yes.
Okay.

I'd like to proffer them.

QO F OD F QD

What do you believe, what is depicted in those photographs that
aon wanted the court to see?

The assets, the value of-
[...]
In order to show the value -

- for the benefit of the court.

A

Q

A

Q

A: - or the assets that we had. To show the tools.

Q Beg your pardon.

A It showed. The pictures showed the tools that we had -
Q Okay.

A

: - in our possession. The tools, everything. Everything we had
in our possession.

Q: All right. So, you wanted to use those photographs to support
your testimony that you and Greg owned particular tools?

A: Correct.

And there were some other things shown in the photographs -
Yes, sir.
- in those.

Yes, sir.

QO FF QO F

: That was to show that ya’ll had owned the other property that’s
shown in those photographs?

A: Correct. The photographs show pictures of the items that we
owned together.

A review of the record does not reveal any offer of any photographic
exhibits other than those actually introduced and considered by the trial court.
Further, there is no indication in the record of any photographs being offered as
evidence that were objected to by opposing counsel and disallowed by the trial
court pursuant thereto. The record actually reflects that counsel for Gregory
objected to the introduction of certain photographs offered on Tonya’s behalf on
the basis of a lack of foundation but that these objections were overruled, and the
photographs allowed. When the overabundance of photographs was originally
produced on the first trial date and the trial court questioned Tonya’s intent
regarding them, as there appeared to be many duplications, even Tonya and her
counsel, identified below as “MR. GAIENNIE”, appear to have acknowledged that
not all of the photographs were intended to be admitted.

THE COURT: Are you going through each one of those pictures?

MR. GAIENNIE: No, sir, I hope not.

MS. SCARBOROUGH: I mean, it’s a lot.

MR. GAIENNIE: I hope | don’t have to.

THE COURT: No, we’re not going to go through each one of

those pictures. If you’ve got, you need to probably pick your best
three or five pictures -

MR. GAIENNIE: Okay.

THE COURT: - in regards to whatever you want to prove in
regard to that.

MR. GAIENNIE: Okay.

THE COURT: I’m not going to allow all of them.

Counsel did not object to the trial court’s decision or attempt to offer or
proffer the entirety of the photographs. When the photographs are again discussed
on the second date of trial, the record reflects that the trial court’s main concern
regarding the photographs was not excluding them, but merely the sheer number of
them and the cumulative nature of the evidence depicted therein. This can be seen
by the following colloquy:

Q: I’m looking at these three photographs and ask you if you can
identify those, please.

THE COURT: Are these, are these cumulative?

MR. GAIENNIE: No, not -

THE COURT: The things we’ve already seen?

MR. GAIENNIE: - not what we’ve already had.

THE COURT: All right. I’m fixing to start cutting off because
individual! pictures, we’re getting too many of them. I just wanted to
say that.

MR. GAIENNIE: Okay.

THE COURT: In regards to that, into, whatever you’re, on the
proof on it.

MR. GAIENNIE: Okay.
THE COURT: Okay?

MR. GAIENNIE: All right.

THE COURT: That’s why I said earlier, pick your best three out

of there as evidence of what it depicts based upon, you can do the

testimony, but pictures are getting cumulative now.

After this exchange, counsel for Tonya had her describe the various
photographs that were actually tendered, and the photographs were admitted into
evidence. There is no indication of any objection to the trial court’s actions.
Further, Tonya fails to point out in brief any example of any specific ruling by the
trial court denying the attempted introduction of any particular photograph or
photographs into evidence. Rather, the record reflects that the only evidence
excluded by the trial court, which was then proffered on Tonya’s behalf, are three
vehicle titles in the names of other persons not party to this suit, which were
offered as Proffer #1, Proffer #2, and Proffer #3. Thus, we can find no ruling of
the trial court on which to base any alleged error.

A ruling on the admissibility of evidence is a question of law

and is not subject to the manifest error standard of review. Frank L.

Maraist, Louisiana Civil Law Treatise: Evidence and Proof, Vol. 19, §

2.10, p. 36. A party may not complain on appeal about an evidentiary

ruling in the trial court unless the trial judge was given the opportunity

to avoid the perceived error, and the ruling “affected” a “substantial

right” of the party. /d. (Citing La. C.E. art. 103(A)(1)).

Trascher v. Territo, 11-2093, p. 4 (La. 5/8/12), 89 So.3d 357, 362.

In the instant case, there was no offer of the photographic evidence
complained of here. The trial judge was not given the opportunity to actually rule
thereon and avoid any potential error. Thus, Tonya cannot now complain of a
perceived evidentiary error on appeal. This is particularly true given that there was
no objection made at trial to any evidentiary ruling of the trial court by either party.

An objection to a witness or to the introduction of evidence is

waived if the objection is not raised at a time when the error can be

corrected. Briscoe v. Briscoe, 25,955 (La.App.2d Cir. 8/17/94), 641

So.2d 999. To preserve an evidentiary issue for appellate review, it

is essential that the complaining party enter a contemporaneous

objection to the evidence or testimony and state the reasons for the

objection. Stephens v. Town of Jonesboro, 25,715 (La.App.2d

5

Cir.8/19/94), 642 So.2d 274, writs denied, 94-2351, 94-2557 (La.
11/29/94), 646 So.2d 400.

Kose v. Cablevision of Shreveport, 32,855, p. 10 (La.App. 2 Cir. 4/5/00), 755
So.2d 1039, 1048, writ denied, 00-1117 (La. 6/16/00), 764 So.2d 964, and writ
denied, 00-1289 (La. 6/16/00), 765 So.2d 340.

Having found no specific offer of the evidence referred to, and thus no
specific ruling of the trial court denying the introduction of such evidence, and
further finding no contemporaneous objection to the trial court’s handling of any

evidentiary issue, we find no merit to Tonya’s first assignment of error.

Denial of the New Trial Motion

Tonya next asserts that the trial court erred in denying her motion for a new
trial without holding a hearing thereon. The standard of review for the denial of a
motion for new trial is abuse of discretion. Zeno v. Nixon, 13-1267 (La.App. 3 Cir.
3/12/14), 133 So.3d 1285. In certain instances, a new trial may be granted by the
trial court at its great discretion, whereas in others the granting of a new trial is
mandatory. Both instances are regulated by the Louisiana Code of Civil Procedure.
Louisiana Code of Civil Procedure Article 1972 states:

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.

(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.

(3) When the jury was bribed or has behaved improperly so that
impartial justice has not been done.

Louisiana Code of Civil Procedure Article 1973 states that “[a] new trial
may be granted in any case if there is good ground therefor, except as otherwise

provided by law.”

Tonya argues on appeal that it was error for the trial court to deny her
motion for a new trial summarily, without holding a hearing thereon. We find no
merit to her argument. A trial court may summarily deny a motion for a new trial
without a hearing, particularly in cases where “[t]he bare allegation that the
judgment was clearly contrary to the law and the evidence certainly presents
nothing new to the judge who tried the case, heard the evidence and listened to the
arguments[.]” Sonnier v. Liberty Mut. Ins. Co., 258 La. 813, 822, 248 So.2d 299,
302 (1971). Thus, we find that the trial court did not err by failing to hold a
hearing on the motion for a new trial given the bare allegation that the judgment
was contrary to the law and evidence.

We next look to the record to determine whether the motion for a new trial
was properly denied on its merits. A motion for new trial may be summarily
denied in absence of a clear showing of facts or law reasonably calculated to
change the outcome of trial or reasonably believed to have denied the applicant a
fair trial. Lopez v. Wal-Mart Stores, Inc., 94-2059 (La.App. 4 Cir. 8/13/97), 700
So.2d 215, writ denied, 97-2522 (La. 12/19/97), 706 So.2d 457. As reflected
above, Tonya’s motion alleged that the judgment of the trial court was clearly
contrary to the law and the evidence.

The applicable standard of review in ruling on a motion for new trial is
whether the trial court abused its discretion. Guillory v. Lee, 09-75 (La. 6/26/09),
16 So.3d 1104. The trial court’s findings of fact are subject to the manifest
error/clearly wrong standard of review. David v. David, 12-1051 (La.App. 3 Cir.
4/10/13), 117 So.3d 148, writ denied, 13-1541 (La. 10/4/13), 122 So.3d 1023.
Broad discretion is accorded to the trial court in resolving community property

disputes. Williams v. Williams, 07-541 (La.App. 3 Cir. 10/31/07), 968 So.2d 1234.

In her brief memorandum accompanying the motion for a new trial in the
trial court and in brief before this court, Tonya again asserts the judgment was
contrary to law, in that the trial court improperly excluded the photographic
evidence referred to in assignment of error number one. Having concluded that
there was no offer of the evidence and no contemporaneous objection, the
judgment is not contrary to the law on this basis. We further conclude that the trial
court’s substantive decision partitioning the community property was not clearly
wrong such that there is no manifest error.

During the trial on the merits, the trial court heard testimony from both
parties as well as several additional witnesses, including professional and trade
witnesses who provided insight into the valuation of certain property at issue and
included in the detailed descriptive lists filed by each party. Tonya’s only
argument on appeal deals with the valuation of various shop tools and equipment
used by Gregory in the parties’ now-closed transmission business. Here, she
claims the photographs that she wished to introduce into evidence showed the
condition and value of these tools and equipment. However, the trial court did
consider certain photographs related to these items and heard testimony from
independent witnesses about the existence and value thereof. In its extensive
written reasons for judgment, the trial court stated “[t]hrough Tonya’s detailed
descriptive list, photos and testimony at the trial, she testified as to what she
believed the projected values of a number of particular tools, assets and inventory
in the transmission shop.” Indeed, the trial court noted that while Gregory asserted
a value of $5,000.00 for the shop tools and contents, Tonya asserted a value of
$182,733.00 for the same. In valuing the tools and inventory at $21,151.68, the
trial court stated in its reasons for judgment that it specifically considered the

testimony of Mark Brashear, a mechanic and former employee of the shop. Mr.

Brashear stated that Gregory had a similar tool cart as the one Mr. Bashear used
and that the value of the tools and cart was approximately $20,000.00. The trial
court also stated it relied on the testimony of Tonya and another former
employee/mechanic, who testified that during the existence of the community
property regime, Gregory purchased another $1,151.68 worth of tools. Finally, the
court noted its reliance on the testimony of the former shop secretary and office
manager, Sissy Cannon, who stated that during her employment for the
transmission shop, no inventory of parts was accumulated as parts were purchased
on an as needed basis for the particular mechanic work being performed.

Thus, the trial court’s findings as to the existence and value of the property
were not clearly wrong or manifestly erroneous, and as such, we find no error in
the trial court’s denial of Tonya’s motion for new trial.

DECREE

For the reasons set forth herein, the judgment of the trial court partitioning
the property of the former community of acquets and gains of Gregory
Scarborough and Tonya D. Scarborough is affirmed. Costs of this appeal are
assessed to Tonya D. Scarborough.

AFFIRMED.

Not Designated for Publication
Court of Appeal, Uniform Rule 2 — 16.3