Arn Smith and Deidre Bell Smith v. City of Lake Charles Police Department

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-155

ARN SMITH AND DEIDRE BELL SMITH

VERSUS

CITY OF LAKE CHARLES POLICE
DEPARTMENT, ET AL.

**********
APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 00-C-3616-A
HONORABLE JAMES T. GENOVESE, DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Glenn B. Gremillion, and Elizabeth A.
Pickett, Judges.

WRIT GRANTED IN PART AND MADE
PEREMPTORY; DENIED IN PART AND
MATTER TRANSFERRED.

John Kevin Stockstill
600 Jefferson, Suite 1000-79
Lafayette, LA 70501
(337) 262-0203
Counsel for Plaintiffs/Applicants
Arn Smith
Deidre Bell Smith

Jerry Joseph Falgoust
Dauzat, Falgoust, Caviness & Bienvenu, L.L.P.
P. O. Box 1450
Opelousas, LA 70571
(337) 942-5811
Counsel for Defendants/Respondents
City of Opelousas Police Department
Sgt. Donald Thompson

Christopher E. John
Asst. City Attorney
P.O. Box 900
Lake Charles, LA 70602-0900
(337) 491-1523
Counsel for Defendants/Respondents
City of Lake Charles
Detective Billy Toten

Larry Allen Wallace, Jr.
345 Doucet Road, Ste 104-A
Lafayette, LA 70503
(337) 983-0170
Counsel for Defendants/Respondents
Hartford Insurance Company
City of Eunice Police Department
Sgt. Varden Guillory, Sr.
Sgt. Richard Daigle

GREMILLION, Judge.

The plaintiffs, Arn and Deidre Smith, seek supervisory writs on the trial

court’s denial of their request for a jury trial against the City of Eunice’s liability

insurer, Hartford Insurance Company, and its grant of a declinatory exception of

improper venue in favor of the defendants, the City of Lake Charles and Detective

Billy Toten. For the following reasons, the writ is granted in part and made

peremptory and denied in part and the Smiths’ claims against Lake Charles and Toten

is ordered transferred to the Fourteenth Judicial District Court.

FACTS

This matter stems from investigations arising from several scams to

defraud elderly women of money in the towns of Southhaven, Mississippi, and Lake

Charles, Eunice, and Opelousas, Louisiana. As a result of the investigations

conducted by the various police departments, Arn Smith (Smith) was arrested by the

Eunice and Opelousas Police Departments and was detained by the Southhaven Police

Department. Smith and his wife then filed suit in St. Landry Parish against various

defendants alleging false arrest, invasion of privacy, gross negligence, and /or

outrageous, reckless, willful, or flagrant misconduct. The defendants named in the

petition include those at issue here: the City of Eunice Police Department and

Sergeants Varden Guillory, Sr. and Donald Thompson; and the City of Lake Charles

Police Department and Detective Billy Toten.1 In their petition, the Smiths requested

that the matter be tried by a jury. In an amending petition, the Smiths added as

defendant Eunice’s liability insurer, Hartford.

1
The remaining defendants are: the City of Southhaven Police Department; and the City
of Opelousas Police Department and Sergeant Richard Daigle and Detective Don Hammons.

1

At issue in this writ application are two rulings by the trial court. In the

first, the trial court denied the Smiths’ request for a trial by jury against Hartford.

Next, the trial court granted Lake Charles and Toten’s declinatory exception of

improper venue and held that all claims against them should be filed in Calcasieu

Parish. The trial court granted the Smiths thirty days in which to re-file their lawsuit

against Lake Charles and Toten in the Fourteenth Judicial District. It is from these

two rulings that the Smiths sought supervisory writs from this court.

RIGHT TO JURY TRIAL

In their first assignment of error, the Smiths argue that the trial court

erred by denying them their right to a jury trial against Hartford. We agree.

Louisiana Revised Statutes 13:5105(A) provides that, “No suit against

a political subdivision of the state shall be tried by jury.” In this instance, the Smiths

are requesting a trial by jury against Hartford, Eunice’s liability insurer, not against

Eunice itself. In Jones v. City of Kenner, 338 So.2d 606 (La.1976), the supreme court

held that the prohibition of a jury trial against a political subdivision of the state did

not extend to the political subdivision’s liability insurer. In so holding, the supreme

court stated: “Therefore, as in Champagne [v. American Southern Insurance Co., 295

So.2d 437 (La.1974)], we hold that the plaintiffs cannot be deprived of their jury trial

against such non-governmental defendant because a governmental defendant is joined

as a party, despite any identity or substantial similarity of the issues against both.” Id.

at 607. That reasoning was recently applied with approval in Naquin v. Titan

Indemnity Co., 00-1585 (La. 2/21/01), 779 So.2d 704, in which the supreme court held

that the ninety day service rule provided to a governmental entity by La.R.S.

2

13:5107(D) did not extend to the governmental entity’s insurer, a non-governmental

entity. Thus, we find that the trial court erred in denying the Smiths their right to a

jury trial against Hartford, even though it is the liability insurer of a political

subdivision. The Smiths’ writ on this issue is granted and made peremptory.

IMPROPER VENUE

In their second assignment of error, the Smiths argue that the trial court

erred in finding that Calcasieu Parish was the proper venue for their claims against

Lake Charles and Toten. However, we agree with the trial court’s finding and affirm

its ruling.

Louisiana Revised Statute 13:5104(B) provides:

All suits filed against a political subdivision of the state or against
an officer or employee of a political subdivision for conduct arising our
of the discharge of his official duties or within the course and scope of
his employment shall be instituted before the district court of the judicial
district in which the political subdivision is located or in the district court
having jurisdiction in the parish in which the cause of action arises.

With regard to Lake Charles and Toten, the Smiths alleged in their

petition that:

Upon information and belief, between the time period February
17, 1999 to October 19, 1999, the Defendants performed and/or
participated in an investigation of Plaintiff, ARN SMITH. Plaintiff was
investigated regarding his alleged role in numerous thefts and/or
attempted thefts and/or schemes to defraud involving elderly women in
Southhaven, Mississippi, Lake Charles, Louisiana, Eunice, Louisiana
and Opelousas, Louisiana.

In their amending petition, they alleged, “The CITY OF LAKE CHARLES POLICE

DEPARTMENT’S AND DETECTIVE BILL TOTEN’s conduct enumerated in

Paragraph VI and VII of Plaintiffs’ Petition For Damages and the investigations

performed and/or participated in by them occurred in Calcasieu Parish.” Paragraphs

3

“VI” and “VII” provide:

VI.

During the course of the investigations by Defendants, Defendants
knew, or in the exercise of minimal diligence should have known, that
the charges against Plaintiff were not well founded.

VII.

In addition, the Defendants failed to interview witnesses which
would have eliminated Plaintiff as a suspect, failed to investigate the
possibility that the Plaintiff was misidentified and/or obtained
identification evidence that was so suggestive and improperly obtained
as to render it highly unreliable.

The doctrine of ancillary jurisdiction was adopted, if not wholeheartedly,

by the supreme court in Underwood v. Lane Memorial Hospital, 97-1997 (La. 7/8/98),

714 So.2d 715. There, the court explained: “Ancillary venue applies when separate

claims involving common or identical questions of fact share no common venue. The

concept of ancillary venue allows such claims to be tried together for reasons of

judicial economy and efficiency, even though venue is not proper technically for one

claim or one part.” Id. at 719. The test in such instances is whether the incidents

giving rise to the claims against the political subdivisions arose out of the same

transaction or occurrence. Id.

In this instance, although the Smiths are asserting the same causes of

action against the various defendants, we find that the claims are based on different

factual circumstances, i.e., the individual investigations conducted by each police

department leading up to their arrest/detention of Smith. Although Lake Charles did

not arrest or detain Smith as a result of its investigation, the Smiths admitted in their

petition that the conduct complained of by them occurred in Calcasieu Parish, while

4

all other complained of conduct occurred in St. Landry Parish. Since the Smiths’

claim against Lake Charles and Toten did not arise from the same transaction or

occurrence as the other claims, we find that venue against them would be improper in

St. Landry Parish, since all of the parties associated with this claim are located in Lake

Charles, even the Smiths. Accordingly, we find that the trial court correctly granted

Lake Charles and Toten’s declinatory exception of improper venue and ordered that

any action against them should be brought in the Fourteenth Judicial District in

Calcasieu Parish. The Smiths’ claim against Lake Charles and Toten is ordered

transferred to the Fourteenth Judicial District Court.

CONCLUSION

For the foregoing reasons, the writ is granted in part and made

peremptory, finding that the trial court improperly denied the Smiths their right to a

jury trial against Hartford Insurance Company. However, the writ is denied on the

issue of whether the trial court correctly granted the declinatory exception of improper

venue in favor of the City of Lake Charles Police Department and Detective Billy

Toten. The Smiths’ claim against these defendants is ordered transferred to the

Fourteenth Judicial District Court. The costs of this writ are assessed half to the

Smiths and half to the City of Eunice in the amount of $754.50 each.

WRIT GRANTED IN PART AND MADE PEREMPTORY;

DENIED IN PART AND MATTER TRANSFERRED.

5