TAYLOR v. LIBERTY MUTUAL INSURANCE (2025)

Plaintiffs, Paul and Tanya Taylor, appeal the trial court's denial of Plaintiffs’ third motion for a continuance of Defendant's, Liberty Personal Insurance Company,¹ summary judgment hearing and the dismissal of their suit for additional insurance proceeds against Defendant. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 9, 2020, Hurricane Delta struck Louisiana causing damage to Plaintiffs’ Lafayette home. Plaintiffs filed a claim for the damages they suffered with Defendant, their homeowner's insurer. As a result of the damage to Plaintiffs’ home, Defendant paid Plaintiffs $107,630.19. Dissatisfied with Defendant's handling of their claim, Plaintiffs filed suit on October 7, 2021, asserting that Defendant breached their contract of insurance by refusing to pay or being dilatory in the payment of Plaintiffs’ claim for repairs.

On March 21, 2022, Defendant forwarded its first set of discovery interrogatories. When Plaintiffs failed to respond, Defendant set a Rule 10.1 discovery conference for May 10, 2022. Plaintiffs’ attorney advised that he had undergone surgery and would be out of work until June or July and requested that the case be put on hold until August. Defendant agreed to the request.

On November 21, 2022, Plaintiffs asserted that Plaintiff, Mr. Taylor, suffered a heart attack because of the stress of the storm and the failure of Defendant to properly pay for Plaintiffs’ claims. On December 13, 2022, Defendant scheduled a second 10.1 discovery conference for December 20, 2022, regarding the outstanding discovery responses, and also served a second set of interrogatories regarding the allegation that Defendant bore some responsibility for Mr. Taylor's heart attack. Defendant received no response to either set of discovery requests. On February 2, 2023, Defendant conducted a final 10.1 conference with Plaintiffs’ counsel regarding the outstanding discovery request. On March 17, 2023, Defendant filed a Rule to Compel Plaintiffs’ responses to discovery.

The hearing on the rule to compel was held on May 15, 2023. During the hearing, Plaintiffs agreed to provide attachments to Defendant's first set of discovery by May 19, 2023, provide responses to Defendant's second set of discovery by May 26, 2023, and to appear for their depositions on July 10, 2023. A judgment setting forth these deadlines was signed by the court on May 30, 2023.

Defendant filed a second rule to compel on March 25, 2024, asserting that although Plaintiffs had supplied some documentation, the documentation provided was deficient and did not permit Defendant to determine the damages Plaintiffs sought. Specifically, Defendant indicated that Plaintiffs failed to provide information regarding sums that had been paid by Plaintiffs for repairs, estimates of what additional work was required, nor information regarding what upgrades were included in the estimates.

The depositions of the Plaintiffs provided Defendants with little information regarding the amounts in dispute. Mr. Taylor testified he would defer to his wife all questions regarding the handling of the claim and the payment of any costs of repairs. During her deposition, Ms. Taylor was not prepared to adequately discuss the claim. She was unable to disclose how much money Plaintiffs had spent in regard to their claim nor how much money Plaintiffs were owed by Defendant. Although Ms. Taylor indicated she had additional evidence to support Plaintiffs’ claims, it was never produced and all attempts to reschedule her deposition were unsuccessful.

On March 25, 2024, Defendant filed a motion for summary judgment asserting that Plaintiffs would be unable to meet their burden of proof at trial that Defendant owed them additional money and therefore their suit should be dismissed. The summary judgment hearing was set for May 13, 2024.

Plaintiffs did not file an opposition to the motion for summary judgment, but on May 2, 2024, filed a motion to continue the rule to compel and the summary judgment hearings because of Plaintiffs’ counsel's health. On May 10, 2024, the court conducted a telephone conference with the parties. As a result of this conference, a judgment was signed on May 22, 2024, that stated that Plaintiffs would provide all responsive discovery, including evidence of all amounts Plaintiffs asserted were owed to them by Defendant, within forty-five days of the signing of judgment. The motion for summary judgment hearing was reset for August 5, 2024.

On July 26, 2024, Plaintiffs filed a second motion to reset the summary judgment hearing because Plaintiffs’ attorney had undergone cervical surgery on May 22, 2024. On August 5, 2024, rather than having the hearings, the parties participated in a conference with the judge. During this conference, Plaintiffs were instructed by the judge to either respond to the discovery requests or obtain new counsel within thirty days. The summary judgment motion hearing date was reset for September 16, 2024.

Despite the trial court's warning, on Friday, September 13, 2024, at 3:52 p.m., Plaintiffs filed a motion to continue the Monday, September 16, 2024 summary judgment hearing. Plaintiffs asserted that “despite due diligence and effort” they had been unable to complete responses to Defendant's motions because of the continued medical issues of their attorney. The continuance motion included a physician's work restriction for Plaintiffs’ counsel until October 6, 2024.

The hearing on Defendant's motion for summary judgment was held as scheduled on September 16, 2024. The trial court and Defendant were apparently unaware of the filing of the latest continuance request by Plaintiffs.² No opposition was filed on behalf of Plaintiffs. During the hearing, Defendant pointed out that this litigation had been ongoing for multiple years, and yet Plaintiffs had failed to present any evidence to support their claim. The trial court noted there had been three prior continuances provided to Plaintiffs and yet they had still not provided the requested evidence. Therefore, the trial court granted the motion for summary judgment and dismissed Plaintiff's suit.

Plaintiffs now file this appeal asserting the following assignment of error:

The trial court abused its discretion and committed manifest error when it denied Appellants’ Motion to Continue Liberty Mutual Insurance Motion for Summary Judgment hearing and its grant of Liberty Mutual Insurance Motion for Summary Judgment. Appellants’ counsel had medical complications, a post-surgery setback, and his physician did not allow him to return to work until weeks after the September 16, 2024, Summary Judgment hearing.

OPINION

The District Court's denial of Plaintiffs’ motion to continue the September 16, 2024, summary judgment hearing.

Plaintiffs assert the trial court abused its discretion in failing to grant their motion to continue the September 16, 2024, summary judgment hearing because of the medical complications suffered by Plaintiffs’ counsel.

Louisiana Code of Civil Procedure Article 1601 sets out the discretionary grounds for a continuance and provides: “A continuance may be granted in any case if there is good ground therefor.”

Louisiana Code of Civil Procedure Article 1602 sets out the peremptory grounds for a continuance and provides:

A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

In discussing La.Code Civ.P. art. 1602, this court in Succession of Stark, 06-190, p. 5 (La.App. 3 Cir. 7/5/06), 934 So.2d 901, 905, stated:

If the requisite showing is made, the granting of a continuance is mandatory. However, each of the elements must be established before a continuance must be granted, including the “[m]ateriality of missing evidence․” Herb's Machine Shop, Inc. v. John Mecom Co., 426 So.2d 762, 765 (La.App. 3 Cir.), writ denied, 430 So.2d 98 (La. 1983) (citing Gallin v. Travelers Ins. Co., 323 So.2d 908 (La.App. 4 Cir. 1975), writ denied, 329 So.2d 452 (La. 1976)). Additionally, the burden is on the Appellants to prove that the motion for continuance comes within the parameters of the peremptory grounds set forth in La.Code Civ.P. art. 1602. Roberson v. Cities Service Co., 478 So.2d 211 (La.App. 3 Cir. 1985).

In Ardoin v. Bourgeois, 04-1663, pp. 2-3 (La.App. 3 Cir. 11/2/05), 916 So.2d 329, 332, this court explained:

“[A] continuance may be granted in any case if there is good ground therefor.” La.Code Civ.P. art. 1601. The trial court has great discretion in granting or denying a motion for a continuance, and denial of a continuance will not be disturbed on appeal unless the trial court is shown to have abused its discretion. Jackson v. Royal Ins. Co., 97-723 (La.App. 3 Cir. 12/17/97), 704 So.2d 424. Whether a trial court should grant or deny a continuance depends on the particular facts of each case. Some factors to consider are diligence, good faith, and reasonable grounds. Demopulos v. Jackson, 33,560 (La.App. 2 Cir. 6/21/00), 765 So.2d 480. Fairness to both parties and the need for orderly administration of justice are additional considerations in deciding whether to grant or deny a continuance. Gilcrease v. Bacarisse, 26,318 (La.App. 2 Cir. 12/7/94), 647 So.2d 1219, writ denied, 95-421 (La. 3/30/95), 651 So.2d 845.

“[T]he abuse of discretion standard is highly deferential to the trial court unless the court exercised its discretion based upon an erroneous view of the law or a clearly erroneous view of the facts.” Tran v. Collins, 20-246, p. 5 (La.App. 4 Cir. 8/20/21), 326 So.3d 1274, 1279 (citing Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church, 14-843, p. 2 (La.App. 4 Cir. 12/17/14), 156 So.3d 1234, 1237).

In explaining what constitutes an abuse of discretion, the court in Torrance v. Caddo Par. Police Jury, 119 So.2d 617, 619 (La.App. 2 Cir. 1960), stated:

Generally an abuse of discretion results from a conclusion reached carpiciously [sic] or in an arbitrary manner. ‘Capriciously’ has been defined such as ‘a conclusion of a commission when the conclusion is announced with no substantial evidence to support it to a conclusion contrary to substantiated competent evidence.’ 12 C.J.S. verbo Capriciously, p. 1137. The word ‘arbitrary’ implies ‘a disregard of evidence or of the proper weight thereof’ 6 C.J.S. verbo Arbitrary, p. 145.

Here, Plaintiffs’ lawsuit was filed on October 7, 2021, and dismissed on September 16, 2024, a period of almost three years. During this time, Plaintiffs failed to adequately respond to discovery requests despite multiple assurances to the court and Defendant that they would do so. Defendant's motion for summary judgment was filed on March 25, 2024, and originally set for hearing on May 13, 2024. Plaintiffs were granted a continuance for this hearing date, and it was reset for August 5, 2024. Plaintiffs filed a second motion for continuance on July 26, 2024, for the August 5, 2024 hearing. The motion indicated the Plaintiffs’ counsel had undergone surgery and requested a thirty to forty-five day delay. During the conference for this continuance, the trial judge cautioned Plaintiffs’ counsel to either respond to the discovery request or get a new attorney to take over the case. According to Defendant, during this conference the trial court also advised Plaintiffs that no further continuances would be granted. The summary judgment hearing was reset for September 16, 2024.

Plaintiffs’ third motion for a continuance of the summary judgment hearing was not filed until late in the afternoon of the Friday before the Monday, September 16, 2024 hearing. The trial court was not aware of the last minute continuance request and granted Defendant's summary judgment motion, dismissing Plaintiffs’ lawsuit.

In Daigle v. City of Shreveport, 46,429 (La.App. 2 Cir. 10/5/11), 78 So.3d 753, writ denied, 11-2472 (La. 2/3/12), 79 So.3d 1027, the defendant requested a continuance of a March 10, 2010 trial in order to obtain an Independent Medical Examination (“IME”) of the plaintiff. The defendant was granted the continuance, and the trial was rescheduled for September 2, 2010. On August 15, 2010, the defendant again attempted to continue the trial asserting it had been unable to secure the IME until after the trial date. After a hearing on the motion to continue, the trial court denied the continuance request. In upholding the trial court's denial of the second continuation request, the appellate court stated:

Another part of this issue is whether the trial court erred in denying the motion for continuance. Louisiana C.C.P. art. 1601 on continuances is discretionary and provides, “A continuance may be granted in any case if there is good ground therefor.” Additionally, La. C.C.P. art. 1602 governs instances when a continuance is mandatory. It provides:

A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

Here, the trial court did not err under either article.

Under art. 1601, the trial court did not find that good ground existed for a continuance in light of the length of time the trial had been before the court, the six month continuance that had recently been granted, and the availability of Daigle's treating physician to testify regarding the same issue.

Nor did the trial court err in denying the motion for continuance under art. 1602. In light of the six-month continuance that had expired without an IME having been done, the City did not show it had put forth the requisite “due diligence” mandated by art. 1602 to have the IME performed․

Additionally, trial courts are vested with great discretion in determining the manner in which they handle their dockets. Appellate courts interfere in trial court matters such as control of a docket, case management, and determination of whether a continuance should be granted, only with reluctance and in extreme cases. Thinkstream, Inc. v. Rubin, 2006-1595 (La.App. 1st Cir. 09/26/07), 971 So.2d 1092,1102, writ denied, 2007-2113 (La. 1/7/08), 973 So.2d 730. The trial court here had the right to deny the motion to continue that, if granted, would set the trial date back an additional four months. Considering the facts of this particular case, we cannot conclude that the trial court abused its discretion in going forward with trial and denying the City's motion to continue.

Id. at 762-763.

We find no abuse of discretion in the trial court's refusal to grant Plaintiffs another continuance under either La.Code Civ. P. art. 1601 or La.Code Civ. P. art. 1602. First, the court was not even aware of the last minute filing of the continuance request by Plaintiffs on the Friday afternoon before the Monday hearing. The court had granted two previous continuances to Plaintiffs and had cautioned them that another one would not be granted. Secondly, although we sympathize with Plaintiffs’ counsel's heath situation, Plaintiffs never showed the requisite due diligence in responding to Defendant's discovery requests, in submitting any evidence to support their claim, or in providing any opposition to Defendant's motion for summary judgment. Plaintiffs failed to show due diligence in obtaining another attorney to handle the case since Plaintiffs’ attorney was physically unable to handle the suit. Finally, the court noted that it would have been unfair to continue Defendant's motion any further.

Based on the above considerations, we find the trial court was correct in its denial of Plaintiffs’ last request for a continuance.

The trial court's grant of summary judgment in favor of Defendant.

Initially, it should be pointed out that although Plaintiffs mentioned that the trial court committed manifest error in granting Defendant's motion for summary judgment, they did not brief the issue. Uniform Rules—Courts of Appeal, Rule 2-12.4(B)(4) provides, “The court may deem as abandoned any assignment of error or issue which has not been briefed.” In discussing the requirements for briefing assignments of error, this court in McCorvey v. McCorvey, 05-174, p. 6 (La.App. 3 Cir. 11/2/05), 916 So.2d 357, 363, writ denied, 05-2577 (La. 5/5/06), 927 So.2d 300, instructed:

Ms. McCorvey argues that the assignment of error on venue should be deemed abandoned where Defendant failed to brief the issue pursuant to Uniform Rules, Court of Appeal Rule 2–12–4. This rule provides in pertinent part that Defendant's brief must contain an argument confined strictly to the issues of the case, free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited. Also, the argument must include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error. Otherwise, the court may consider as abandoned any specification or assignment of error which has not been briefed. See Hansel v. Holyfield, 00-62 (La.App. 4 Cir. 12/27/00), 779 So.2d 939, writs denied, 01-276, 01-279 (La.4/12/01), 789 So.2d 591.

In Chaumont v. City of New Orleans, 20-17, p. 4 (La.App. 4 Cir. 6/3/20), 302 So.3d 39, 45, the court stated:

Appellant mentions the first two assignments of error in his appellate brief, but fails to fully argue the merits thereof. Pursuant to Rule 2–12.4 of the Uniform Rules, Courts of Appeal, all specifications or assignments of error must be briefed, and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. Further, Rule 2-12.13 of the Uniform Rules, Courts of Appeal addresses non-compliant briefs and provides that “[b]riefs not in compliance with these Rules may be stricken in whole or in part by the court, and the delinquent party or counsel of record may be ordered to file a new or amended brief.” Thus, the sanction to be imposed for a non-conforming brief is left to the discretion of the court. Cangelosi v. Treasure Chest Casino, L.L.C., 18-72, p. 3 (La. App. 5 Cir. 7/31/18), 252 So.3d 559, 562, writ denied, 2018-1446 (La. 11/20/18), 256 So.3d 997. Accordingly, this Court may decline to consider the first and second assignments of error on these grounds. State v. Anderson, 97-2587, pp. 9-10 (La. App. 4 Cir. 11/18/98), 728 So.2d 14, 20 (stating that “any specification or assignment of error not briefed is considered abandoned”).

Accordingly, Plaintiffs’ assignment of error regarding the granting of Defendant's motion for summary judgment is considered as abandoned for failure to brief any issue related thereto and for non-compliance with the Uniform Rules—Courts of Appeal.

Even if we were to decide Plaintiffs’ assignment of error regarding the grant of the summary judgment was not abandoned, Plaintiffs failed to submit any opposition to Defendant's evidence.

In Reed obo Cope v. Black Star Energy Servs., LLC, 23-148, pp. 3-4 (La.App. 3 Cir. 11/22/23), 374 So.3d 419, 422, this court addressed appellate review of summary judgments by stating:

Appellate courts review summary judgments de novo under the same criteria that governed the trial court's consideration of whether or not summary judgment was appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La. 1991). Summary judgment is proper if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(A)(3).

Louisiana Code of Civil Procedure Article 966 charges the moving party with the burden of proving that summary judgment is appropriate. In doing so, the moving party's supporting documentation must be sufficient to establish that no genuine issue of material fact remains at stake. Townley v. City of Iowa, 97-493 (La. App. 3 Cir. 10/29/97), 702 So.2d 323. Once the mover makes a prima facie showing that there is no genuine issue as to a material fact and that summary judgment should be granted, the burden shifts to the non-mover. Id.

The threshold question in reviewing a trial court's grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La. 3/13/98), 712 So.2d 882. We must then determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Id. Thus, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole issue remaining is the conclusion to be drawn from the relevant facts. Id. If the mover's supporting documentation is sufficient to establish that no genuine issue of material fact exists, the burden of proving the existence of a genuine issue of material fact shifts to the nonmoving party. To satisfy her burden of proof, the nonmoving party must not rely on the mere allegations or denials of her pleadings, but her response must set forth specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art. 967.

In Arceneaux v. Lafayette Gen. Med. Center, 17-516, p. 5 (La.App. 3 Cir. 7/26/17), 248 So.3d 342, 346, this court also explained:

“Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Samaha v. Rau, 07-1726, p. 5 (La. 2/26/08), 977 So.2d 880, 883 (citing Wright v. La. Power & Light, 06-1181, p. 16 (La. 3/9/07), 951 So.2d 1058, 1070).

In support of their motion for summary judgment, Defendant submitted evidence to establish the amounts they paid to Plaintiffs for their claim were correct through the use of affidavits, payment records, depositions and repair estimates. Defendants also utilized the depositions of Plaintiffs and discovery responses to establish that Plaintiffs could not satisfy their burden of proving entitlement to additional damages. The Plaintiffs failed to submit any evidence to establish that Defendant was not entitled to summary judgment. The trial court held Defendant satisfied its burden of proof and granted Defendant's motion for summary judgment. The trial court's grant of summary judgment in favor of Defendant was amply supported by the record and therefore the dismissal of Plaintiffs’ suit was proper.

DECREE

For the foregoing reasons, the judgment of the trial court granting Defendant's motion for summary judgment and dismissing Plaintiffs’ case is affirmed. All costs of this appeal are assessed to Plaintiffs, Paul and Tanya Taylor.

AFFIRMED.

FOOTNOTES

1.   Defendant is incorrectly listed as Liberty Mutual Insurance Company in Plaintiffs’ petition.

2.   Defendant asserts it was not served with Plaintiffs’ motion prior to the hearing although the Plaintiffs’ attorney certificate indicated a fax copy of the motion was sent to Defendant's attorney. The trial judge referenced that Plaintiffs’ counsel was not present at the hearing and no request for a continuance had been filed. The trial judge stated, “We had lengthy discussions [sic] to do on this. And I just don't think it's fair for the defendant that I continue to kick this down the road. So we're going to proceed with it.” The Plaintiffs’ September 13, 2024 continuance request was denied by the trial court by order dated September 18, 2024.

KYZAR, J.