Jerry L. Mallet and Gail A. Mallet v. Kathy Mallet Montgomery

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 19-505

JERRY L. MALLET & GAIL A. MALLET

VERSUS

KATHY MALLET MONTGOMERY

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-423-08
HONORABLE STEVE GUNNELL, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Jonathan W. Perry,
Judges.

Cooks, J., dissents and assigns written reasons.

AFFIRMED.

Jerry L. Mallet
Attorney at Law
1030 Lafayette Street
Lafayette, LA 70501
(337) 593-0910
COUNSEL FOR PLAINTIFF/APPELLANT:
Gail A. Mallet

David E. Marcantel
Marcantel, Marcantel, Wall & Pfeiffer
302 E. Nezpique Street
Jennings, LA 70546
(337) 824-7380
COUNSEL FOR DEFENDANT/APPELLEE:
Kathy Mallet Montgomery

PICKETT, Judge.

Plaintiff appeals the trial court’s ruling that excluded two of her witnesses

from testifying and its determination that she failed to prove her claim for personal

injuries. We affirm.

FACTS

On Mother’s Day, May 13, 2007, members of the Robert and Mildred Mallet

family of Welsh gathered to visit Mildred Mallet, their mother/mother-in-

law/grandmother. At issue herein is an incident that occurred after Mildred’s son,

Jerry, and his wife, Gail; son, Craig; and daughter, Millie; arrived at the Mallet

home. The incident occurred between Gail and Jerry’s sister, Kathy Mallet

Montgomery. Gail contends that Kathy strangled and injured her. Kathy denies

that she touched Gail.

On January 23, 2019, the matter was tried before the trial court.1 Prior to the

presentation of evidence, the trial court sequestered all the witnesses. Gail, Craig,

and Glenn Sensat, the Mallets’ cousin, were the first witnesses to testify. After

they testified, the trial court took a break to handle another matter. Before the trial

resumed, a court employee reported to the trial court that during the break, she had

seen and heard Craig, Jerry, and Millie discussing a complaint by Craig that the

trial court had reprimanded him. The trial court held a hearing to address the

report. At the conclusion of the hearing, the trial court disqualified Jerry and

Millie from testifying on Gail’s behalf.

The trial resumed. Gail presented the testimony of her treating chiropractor

and proffered the testimony of Jerry and Millie regarding the facts surrounding the

1
Jerry and Gail initially filed suit against Kathy; however, Jerry dismissed his claim
before trial.

incident and Gail’s injuries. Kathy presented her testimony, the testimony of her

brothers, Bob and Rick, and her mother. To a point, witness’s accounts of what

occurred between the women are very similar; thereafter, they differ dramatically.

When the trial concluded, the trial court allowed the parties time to file post-

trial briefs. On March 11, 2019, the trial court issued written Reasons for Ruling

in which it concluded that Gail had not satisfied her burden of proving her claim

against Kathy. The trial court signed a judgment dismissing Gail’s claims’; Gail

appealed.

ASSIGNMENTS OF ERROR

Gail assigns the following errors with the trial court’s rulings, findings of

fact, and judgment:

1. The Trial Court erred in disqualifying Jerry L. Mallet and Millie
Mallet from testifying as witnesses at trial.

2. The Trial Court erred by basing its ruling, to a significant extent,
on the misconception that Gail Mallet, Kathy Montgomery[,] and
Mildred Mallet were “the only witnesses at trial that were actually
in the room when the incident happened.”

3. The Trial Court erred by failing to take into consideration the
undisputed medical testimony which confirmed that Gail Mallet
suffered injuries consistent with her account of the choking
incident alleged perpetrated by Kathy Montgomery, that the
injuries occurred at a time consistent with the date of the alleged
choking and that there was no evidence presented at trial of any
other instance or occurrence (other than the choking incident at
issue herein) which could explain and/or account for the injuries
suffered by [Gail].

4. The trial court erred in finding that [Gail Mallet] failed to meet her
burden of proving by a preponderance of the evidence that [Kathy
Montgomery] choked [Gail Mallet].

2

DISCUSSION

Sequestration

Louisiana Code of Evidence Article 615(A) provides for sequestering

witnesses and excluding them from the courtroom so they cannot see or hear the

proceedings and ordering them not to discuss “the facts of the case with anyone

other than counsel in the case.” If the sequestration order is violated, the “court

may impose appropriate sanctions for violations of its exclusion order including

contempt, appropriate instructions to the jury, or when such sanctions are

insufficient, disqualification of the witness.” La.Code Evid. Art. 615(C).

Comment (f) to La.Code Evid. Art. 615 (emphasis added) addresses the

remedy of disqualification, stating:

(f) Disqualification[] is the most drastic remedy. It precludes a party
from adducing perhaps vital evidence and deprives the jury of the
benefit of the witness’ testimony. When a party has had no knowledge
of the violation and has played no role in bringing it about,
disqualification unjustly impairs his case.

Sequestration of witnesses serves the dual purpose of preventing witnesses

from being influenced by prior testimony and strengthening the role of cross-

examination. State v. Ardoin, 340 So.2d 1362 (La.1976); State v. McDaniel, 340

So.2d 242 (La.1976). “The particular remedy imposed for sequestration violations

rests within the sound discretion of the trial court.” Trejo v. Canaan Constr., LLC,

52,697, p. 25 (La.App. 2 Cir. 6/26/19), 277 So.3d 499, 515.

The trial court conducted a hearing to address the reported sequestration

violation and questioned the court employee; Craig and Glenn, who had already

testified; and Jerry and Millie, who were waiting to testify. The employee testified

that she heard Jerry state, “Oh no . . . he should have objected to that[,]” and

“There is no way he can say that. He should have objected.” Craig, Glenn, Jerry,

3

and Millie testified that when Craig left the courtroom, he stated he was aggravated

because the trial court reprimanded him when he was testifying and that Jerry told

Craig he needed to stay calm and not get rattled. They all denied that Jerry made a

comment similar to “he should have objected to that.”

When the trial court asked why he violated the sequestration instruction,

Craig stated: “I clearly misunderstood.” When asked if he commented on Gail’s

attorneys’ failure to object, Jerry testified, “I don’t know if I asked him if the

attorney objected or not. I don’t -- I don’t -- I don’t know. I can’t say for sure I

didn’t, but I didn’t tell him he should have.” After hearing the testimony of these

witnesses, the trial court determined:

I have to give credence to . . . a third party who does not have any
interest in this case . . . . I gave them the opportunity to explain the
comment that she overheard . . . and all of them denied it . . . . So the
only appropriate remedy is Jerry and Millie will not be allowed to
testify[.]

....

. . . if all three of them would have come in here and said, yes . . . he
should have objected to him smearing. Yeah, my dad said he you
know, the attorney should have objected. If all three of them would
have said that, it would be fine, but . . . all three of them denied it[.]

The trial court had the option of holding Jerry and Millie in contempt or

disqualifying them.2

Gail argues that the trial court abused its discretion in refusing to allow Jerry

and Millie to testify. The trial court’s discussion at the conclusion of the

sequestration violation hearing clearly shows that it did not believe Jerry, Millie,

Craig, and Glenn’s testimony on that issue. As the trier of fact, the trial court was

the sole judge of the credibility of all the witnesses at trial. Therefore, the trial

2
The third option provided by Article 615(C), giving instructions to the jury, does not
apply here because the trial court was the trier of fact.

4

court’s refusal to allow Jerry and Millie to testify had the same effect as allowing

them to testify but discrediting their testimony based on its conclusion that they did

not testify truthfully about the sequestration violation.

Under these facts, we find the trial court did not abuse its discretion in

disqualifying Jerry and Millie from testifying.

Liability

Gail has the burden of proving her claim that Kathy caused her physical

injury. La.Civ.Code art. 2315; Guilbeau v. Liberty Mut. Fire Ins. Co., 18-230, 18-

231, 18-232 (La.App. 3 Cir. 3/7/19), 269 So.3d 1002. To satisfy her burden, she

must prove that Kathy engaged in negligent conduct that caused her physical injury

and actual damages. Id. The trial court concluded that Gail failed to carry her

burden of proof.

We review the trial court’s findings of fact to determine whether they

constitute “manifest error” or if they are “clearly wrong.” Rosell v. ESCO, 549

So.2d 840, 844 (La.1989). We cannot reverse the trial court’s findings of fact

unless they are manifestly erroneous or clearly wrong. Id. “[W]here there is

conflict in the testimony, reasonable evaluations of credibility and reasonable

inferences of fact should not be disturbed upon review, even though the appellate

court may feel that its own evaluations and inferences are as reasonable.” Id.

Additionally, if the trial court’s findings are “based on its decision to credit the

testimony of one of two or more witnesses, [its findings] can virtually never be

manifestly erroneous or clearly wrong.” Id. at 845. Moreover, when the trial

court’s findings are based on credibility determinations, we must give great

deference to the findings because “only the factfinder can be aware of the

5

variations in demeanor and tone of voice that bear so heavily on the listener’s

understanding and belief in what is said.” Id. at 844.

The evidence shows that when Jerry and his family arrived, Mildred, Robert,

Kathy, and Glenn were present. Shortly thereafter, Jerry’s brother, Bob, arrived.

Immediately before the incident occurred, Jerry, Robert, Craig, and Bob were in

the living room; Mildred, Kathy, Gail, Millie, and Glenn were in the adjacent

dining room/kitchen area. Craig entered the dining room/kitchen area, and Mildred

asked Kathy, if she had noticed how muscular Craig had become. Kathy

responded that that she had not noticed. Gail testified that she stated, “you haven’t

noticed much of anything, have you, Kathy, lately.” According to Kathy, however,

Gail stated: “You haven’t noticed much. You didn’t even speak to me, you little

b----.”

Gail presented her testimony, and the testimony of Craig, Glenn, and Dr.

Paul Roger, her chiropractor, to prove that Kathy injured her. Gail, Craig, and

Glenn testified that Kathy got out of her chair; followed Gail, who was walking

toward the kitchen area; put her hands on Gail’s neck; and choked her. They

further testified that Kathy did not remove her hands from Gail’s neck and quit

choking Gail until Bob pulled Kathy’s hands from Gail’s neck and pulled Kathy

from Gail.

Dr. Paul Roger testified that he began treating Gail approximately ten years

before the incident, after she was injured in an automobile accident. Gail

continued treating with Dr. Roger after that accident and was receiving

maintenance treatment from him at the time of the incident. Dr. Roger testified

that prior to the incident, Gail saw him for treatment about seven times a year,

which equates to approximately once every seven and one-half weeks. Gail had

6

seen Dr. Roger on March 13, 2007. At that time, Dr. Roger testified that Gail rated

her pain complaints very low on that date but complained of much more severe

pain when she saw him after the incident on June 29, 2007. Gail reported to Dr.

Roger that her pain after the incident prevented her from attending scheduled

appointments with him.

Mothers’ Day was just over eight weeks after Gail’s March 13 visit. Gail

testified that she began having neck pain the day the incident occurred and traveled

to the Welsh police department three weeks later to report the incident. She did

not seek medical treatment for the severe pain that she reported to Dr. Roger,

however, until seven weeks after the incident.

Kathy defended Gail’s claims with her testimony and the testimony of her

mother and her brothers, Bob and Rick. Kathy, Mildred, and Bob testified that

Kathy never put her hands on Gail. Kathy explained that she extended her hands

on either side of Gail’s head to try and redirect Gail’s focus. Kathy further stated

that when she put her hands by Gail’s head, Mildred came up between her and Gail

and slapped Gail. According to Kathy, Bob put his hands on her arms and told her,

“don’t do anything, if you do, I’ll have to get involved,” and she put her hands

down.

Bob testified that Kathy did not have her hands on Gail’s neck and that he

told Kathy to put her arms/hands down to avoid an escalation of the situation, and

Kathy obeyed. Mildred also testified that Kathy did not touch Gail, explaining that

Kathy extended her hands but never touched Gail. Mildred further explained that

she put her hand up and slapped Gail’s face to make her stop saying “you damn

little b----.”

7

Kathy, Mildred, Bob, and Rick 3 testified that after the incident, Glenn

frequently discussed the incident and stated that Kathy had not touched Gail.

According to these witnesses, Glenn’s continued discussions about the incident

upset Mildred, and some time later, she told him to stop talking about it. They

testified that Glenn then quit socializing at the Mallet home and began stating that

Kathy had choked Gail. Glenn denied ever stating that Kathy did not touch Gail

and testified that he always knew Kathy choked Gail.

The trial court issued written Reasons for Ruling in which it made the

following findings:

The testimony differed wildly between the parties with the plaintiffs
arguing that [Kathy] had choked Gail while [Kathy] steadfastly denied
ever touching Gail. Several witnesses were called, either through live
testimony or by deposition. In the plaintiffs’ case, four (4) witnesses
were called: Gail, Glenn Sensat, Craig Mallet, and Dr. Paul [Roger].
Another two (2) witnesses for the plaintiffs – Jerry Mallet and Millie
Mallet – were later disqualified by the Court. Gail testified that
[Kathy] grabbed her by the neck with both hands and started choking
her. Mr. Sensat testified that he saw [Kathy] grab Gail by the neck
and that Bob Mallet came up behind [Kathy] and removed her hands
from Gail’s neck. Craig Mallet testified that he saw both [Kathy] grab
Gail and then Bob remove [Kathy]’s hands from Gail’s neck.

However, the defendant’s witnesses differed significantly from
[Gail’s] witnesses. The parties’ mother/mother-in-law, Mildred
Mallet, stated in her deposition that [Kathy] never touched [Gail]; in
fact, Mildred stated that she was the one who slapped Gail that day.
The parties’ brother/brother-in-law, Bob Mallet testified that he did
not see [Kathy] touch Gail nor did he pull [Kathy]’s hands off of
Gail’s neck. Another brother/brother-in-law, Rick Mallet testified that
although he was not present at the Mother’s Day gathering in 2007,
Mr. Sensat (the plaintiffs’ witness) was and that in the years since the
incident, Mr. Sensat had repeatedly told the story at family gatherings.
At no time did [Mr. Sensat] ever say that [Kathy] ever strangled Gail.
It was only recently, Rick testified, that Mr. Sensat changed his
version of events and stated that [Kathy] had choked Gail.

3
Rick Mallet lives out of state and was not at the Mallet home the day the incident
occurred. His testimony addresses events that occurred after the incident when he visited his
family.

8

The Court must weigh the credibility of the witnesses. Bob
Mallet, who the plaintiffs contend was the one who physically pulled
[Kathy] off of Gail, denied that he pulled [Kathy] off Gail or that
[Kathy’s] hands were on Gail’s neck. The only witnesses at trial that
were actually in the room when the incident happened were Gail,
[Kathy], and Mildred Mallet. Gail and [Kathy] testified in opposition
to each other, and Mildred testified that she was the one who actually
slapped Gail. Given all the testimony, the Court ultimately concludes
that [Gail] did not meet [her] burden of proving by a preponderance of
the evidence that [Kathy] actually grabbed and/or choked Gail during
their argument.

Gail urges that the trial court’s error of fact with regard to who was in the

dining room/kitchen area with her, Kathy, and Mildred when the incident occurred

warrants reversal of the trial court’s determination that she did not carry her burden

of proof. We do not agree.

Due to this error, the trial court did not realize that Craig, Glenn, and Millie

were in the dining room/kitchen area when the incident occurred. Nonetheless,

Craig and Glenn’s credibility was tainted by the fact that they lied during the

sequestration hearing, and Millie was disqualified from testifying for the same

reason. Furthermore, Glenn’s credibility was also challenged by Kathy, Bob, Rick,

and Mildred’s testimony. Importantly, Dr. Roger testified that there was no way

he could distinguish between pain that would have been caused by Gail being

choked and pain caused by her face being slapped. Considering all of the evidence

presented at trial, we find the trial court’s evaluations of credibility and

determination that Gail failed to carry her burden of proof is not manifestly

erroneous.

9

DISPOSITION

The judgment of the trial court is affirmed. All costs are assessed to Gail Mallet.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

10

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-505

JERRY L. MALLET & GAIL A. MALLET

VERSUS

KATHY MALLET MONTGOMERY

COOKS, J., dissents.

As the majority sets out, Louisiana Code of Evidence Article 615C provides

that a court may impose appropriate sanctions for violations of its exclusion order

including contempt, appropriate instructions to the jury, or when such sanctions are

insufficient, disqualification of the witness. As Comment (f) to La.Code Evid. Art.

615 explains, disqualification “is the most drastic remedy. It precludes a party from

adducing perhaps vital evidence and deprives the jury of the benefit of the witness’

testimony.” In this case, it is not hyperbole to say the disqualification of Jerry and

Millie Mallet as witnesses was a fatal blow to the plaintiffs’ case.

Ms. Fields, the deputy clerk, testified she heard Jerry say something to the

effect of “he should have objected to that.” Ms. Fields did not provide any context

to this comment. Jerry testified he simply was admonishing his son for becoming

upset while testifying, in response to his son’s angry demeanor following his

testimony. Jerry acknowledged he should not have discussed any of Craig’s

testimony with him, but stated their conversation was solely about Craig not “losing

his cool.”

The law is clear that disqualification of witnesses is an extreme measure which

affects the right to a fair and just determination at trial and should only be reserved

for only the most egregious violations. I find the record does not in any way establish

there was any discussion of the substance of Craig’s testimony. Jerry, Craig’s father,

who is an attorney, simply told him to refrain from “losing his cool.”

There was no testimony from anyone, including Ms. Fields, that Millie

participated in the conversation between Craig and Jerry. All that was stated was

she was in close proximity to Jerry and Craig when they had their exchange. Thus,

there was no indication that Millie violated the rule of sequestration in any way,

much less in such a fashion that would support her being disqualified as a witness.

I also note the trial judge at numerous times in the record acknowledged he

was unsure of how to proceed. He specifically stated “this is all new [territory] for

me” and “I don’t know how to [rehabilitate the witnesses].”] The trial judge also

stated in open court his law clerk had found the statute for sanctions when the rule

of sequestration is deemed to be violated. He then noted such a violation can lead

to sanctions which include the witnesses being placed into contempt of court or the

jury being appropriately instructed (which is inapplicable in the present case as it

was a bench trial), and when sanctions are insufficient, disqualification of the

witnesses. As it was clear the trial judge was not familiar with the relevant statute,

it follows he was unaware that disqualification is a drastic remedy that should only

be imposed for an egregious violation of the rule of sequestration. That simply is

not the case here.

The Louisiana Supreme Court in State v. Trahan, 576 So.2d 1 (La.1990),

although recognizing that disqualification it is a drastic remedy only to be imposed

as a last resort, found it appropriate in that case when the sequestration violation was

committed with the consent, connivance, procurement or knowledge of the party

calling the witnesses. There is nothing in the record to indicate anything of the sort

occurred in the present case. I find disqualification of the witnesses was unjustified

and the trial court abused its discretion in doing so. Moreover, that ruling

fundamentally impaired plaintiffs’ ability to prove their case. Thus, I respectfully

dissent from the majority’s opinion in this case.