Bradley Day & Tracey Day v. Elvis Dean Thompson

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 23-301

BRADLEY DAY & TRACEY DAY

VERSUS

ELVIS DEAN THOMPSON, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2017-4574
HONORABLE DERRICK D. KEE, DISTRICT JUDGE

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D. KENT SAVOIE

JUDGE

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Court composed of D. Kent Savoie, Van H. Kyzar, and Guy E. Bradberry, Judges.

SECOND MOTION TO SUPPLEMENT APPEAL RECORD GRANTED.

Randall Alan Smith
J. Geoffrey Ormsby
Dylan T. Leach
Smith & Fawer, LLC
201 St. Charles Avenue, Suite 3702
New Orleans, LA 70170
(504) 525-2200
COUNSEL FOR DEFENDANT/APPELLANT:
Prime Insurance Company

Martin Edward Golden
Keogh, Cox & Wilson, Ltd.
Post Office Box 1151
Baton Rouge, LA 70821
(225) 383-3796
COUNSEL FOR INTERVENOR/APPELLEE:
Rescare, Inc.

John Craig Jones
Attorney at Law
131 Highway 165 South
Oakdale, LA 71463
(318) 335-1333
COUNSEL FOR PLAINTIFFS/APPELLEES:
Bradley Day
Tracey Day

Jennifer M. Ardoin
Katelyn E. Bayhi
Frank X. Neuner, Jr,
NeunerPate
1001 W. Pinhook Rd., Ste. 200
Lafayette, LA 70503
(337) 237-7000
COUNSEL FOR DEFENDANTS/APPELLANTS:
Terry Graham Trucking, Inc.
Elvis Dean Thompson

SAVOIE, Judge.

Defendants-Appellants, Terry Graham Trucking, Inc. and Elvis Thompson,

filed a Second Motion to Supplement the Record on Appeal, seeking to supplement

the record with the complete trial transcript, including but not limited to the

transcript from the oral motions made, argued, and decided on January 3, 2022,

and specifically Plaintiffs’-Appellees’ oral motion to excuse Plaintiff-Appellee

Tracey Day for the entire length of the trial. Plaintiffs-Appellees, Bradley Day and

Tracey Day, filed an opposition to Defendants’ motion, asserting that the

transcripts sought by Defendants are not material to this appeal. For the reasons

stated herein, we grant Defendants’ motion to supplement the appeal record.

The instant appeal was lodged with this court on May 15, 2023. After

reviewing the record, Defendants filed an Ex Parte Motion to Supplement Record

on Appeal. The motion was granted and the record was supplemented on August

23, 2023. Upon reviewing the supplemental record, it became evident to

Defendants that a number of oral motions were made, argued, and decided on the

morning of trial, January 3, 2022, and had not been transcribed and/or included in

the record. Defendants assert that the transcript on these oral motions, and

specifically, on Plaintiffs’ motion to excuse Plaintiff Tracey Day for the entire

length of trial, is critical to issues to be raised by Defendants and must be cited in

their brief. Without the transcript of this oral motion, objections, or the trial

court’s oral reasons, Defendants maintain they will not be able to properly brief the

issue. Defendants request that this court issue an order directing the Fourteenth

Judicial District Court Clerk of Court to supplement the appellate record with the

complete trial transcript, including but not limited to the transcript from the oral

motions made, argued, and decided on January 3, 2022, and specifically Plaintiffs’

oral motion to excuse Plaintiff Tracey Day for the entire length of trial.

In opposition to the motion to supplement, Plaintiffs argue that Defendants’

second motion to supplement the record should be denied as untimely and

unnecessary. Plaintiffs maintain that the transcripts sought by Defendants are not

material to this appeal as provided in La.Code Civ.P. art. 2132, and involve a

minor, discretionary decision by the trial judge that is adequately found in the

record. Article 2132 authorizes the correction of a record on appeal that omits a

material part of the trial record.

Next, Plaintiffs argue that a motion to supplement a transcript that “does not

state the nature of the trial judge’s error . . . standing alone, is insufficient to

warrant this court bringing about further delays by remanding the case for the

[supplemental] transcription of the proceedings.” Jackson v. Tri-State Elevator

Co., 398 So.2d 199, 200-201 (La.App. 3 Cir.), writ denied, 400 So.2d 905

(La.1981). Plaintiffs assert that Defendants’ motion to supplement does not show

how the addition of the record of a transcript of oral arguments of counsel

regarding whether to excuse Tracey Day from attending a week-long trial will

show the “nature of the trial judge’s error.” Plaintiffs complain that Defendants’

motion does not articulate error at all. Instead, Defendants seek to stay this case a

second time to supplement the record with a transcript of an oral argument not

made in front of the jury that contains no evidence. Plaintiffs contend that

argument by counsel, “is not evidence and cannot be considered as proof of fact

(citations omitted).” Ortega v. Cantu Servs., Inc., 17-1123, p. 4 (La.App. 3 Cir.

5/2/18), 246 So.3d 827, 830. Plaintiffs add that Defendants do not attempt to

articulate how the trial judge’s decision to excuse Tracey Day could have possibly

been an abuse of discretion. Plaintiffs also point out that the minutes from the first

morning of trial reflect that Plaintiffs’ counsel moved the court to excuse Tracey

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Day from attending trial, defense counsel objected, and the trial judge granted the

motion; thus, the essential facts of the ruling are found in the record.

Lastly, Plaintiffs argue that Defendants previously attempted to designate a

limited record on appeal and did not designate the transcript of the discussion of

counsel to excuse Tracey Day on January 3, 2022, as a necessary part of the record.

Plaintiffs urge that Defendants should not be allowed to delay this appeal a second

time because they changed their minds. Plaintiffs point out that Appellant-

Defendant Prime Insurance Company filed a motion and order to designate the

record for appeal and did not designate the transcript of the January 3, 2022

discussion of counsel and motion to excuse Tracey Day as part of the appeal

record.1 Defendants then filed their own motion to designate the record, seeking to

limit the appeal record to “only those documents previously identified by Prime

Insurance Company’s timely motion to designate.” Plaintiffs note that Defendants

designated two additional documents but did not designate the transcript of the

argument of counsel on the morning of January 3, 2022.

Further, Plaintiffs complain that when the record was lodged with this court

on May 15, 2023, and it was apparent that the transcription of the discussion of

counsel on January 3, 2022, was not in the record, Defendants only specifically

mentioned the need for the voir dire transcript. Plaintiffs maintain that if the

January 3, 2022 argument of counsel was truly important to Defendants’ appeal,

they would have designated it as part of the record last year, and at the very least,

would have specifically requested the transcript after the record was lodged.

Plaintiffs conclude that “Justice delayed is Justice denied.” Hamilton Med.

Grp. V. Ochsner Health Plan, 550 So.2d 290, 292 (La.App. 3 Cir. 1989). Plaintiffs

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The appeals of Prime Insurance Company, Terry Graham Trucking, and Elvis Dean
Thompson were consolidated on September 13, 2022.
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complain that their appeal has been pending for over one year and that Defendants

have already asked for and obtained a stay of briefing deadline to supplement the

record with the voir dire transcript. Defendants now ask for a second indefinite

delay to obtain a transcript that contains no evidence and involves a purely

discretionary decision. Plaintiffs urge that this is not a material omission

contemplated by La.Code Civ.P. art. 2132, but is an afterthought by Defendants.

As such, Plaintiffs urge that there is no just reason to delay this appeal any further.

In reply to Plaintiffs’ opposition, Defendants assert that they did attempt to

designate the transcript of the January 3, 2022 trial proceedings as part of the

record on appeal. Defendants’ state that Prime Insurance Company designated all

trial transcripts from the trial held on January 3-7, 2022, which included the

transcript of the oral motions made, argued, and decided after the case was called

for trial on the morning of January 3, 2022. Thereafter, Defendants filed their own

motion to designate the record, seeking to limit the record to “those documents

previously identified in Prime Insurance Company’s timely motion to designate,”

plus two additional documents. Defendants conclude that this evidences their

attempt to designate the transcript from the oral motion that Plaintiffs made on the

morning of January 3, 2022. Moreover, Defendants point out that Plaintiffs

opposed the limited designation, and the trial court ordered that the entire record be

designated, including a transcript of all proceedings.

Lastly, Defendants argue that the transcript of the oral motion, argument,

and order allowing Tracey Day to only appear at trial during her testimony is

critical to the issues to be raised on appeal. Defendants claim that the motion for

Tracey Day to only appear during her testimony due to alleged medical issues was

the first notice Defendants received of Tracey Day’s intent to miss trial.

Defendants assert that it was this argument—that Tracey Day was in too much pain
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to sit through trial—which necessitated the immediate surveillance obtained by

Defendants during trial to determine the credibility of Tracey Day’s representation

to the trial court. When Defendants attempted to use the surveillance video as

impeachment evidence during trial, the trial court precluded the introduction of the

video as well as the testimony of the private investigator who obtained the

surveillance footage, finding that discovery had been closed. Defendants conclude

that the crux of the appeal is the trial court’s error in precluding impeachment

evidence at trial. Defendants contend that representations made concerning Tracey

Day’s condition, such as the length of time she can sit or stand or the activities in

which she can partake, is extremely relevant and material to the instant appeal.

Considering the fact that Defendants attempted to designate the transcript of

the January 3, 2022 trial proceedings, the fact that the entire record was designated

by the trial court, and Defendants’ assertion regarding the relevance of the desired

transcript, we grant Defendants’ motion to supplement the record. We hereby

order that the Fourteenth Judicial District Court Clerk of Court supplement the

record of the appeal pending in the Third Circuit Court of Appeal, Docket No. 23-

301, to include the complete trial transcript, including, but not limited to, the

transcript from the oral motions made, argued, and decided on January 3, 2022,

and specifically, Plaintiffs’ oral motion to excuse Plaintiff Tracey Day for the

entire length of trial. Briefing is suspended pending receipt of the supplemental

record in this court.

SECOND MOTION TO SUPPLEMENT APPEAL RECORD GRANTED.

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

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