CHRISTOPHER CLEMENT SR AND SHERRY CLEMENT v. STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT PARISH OF LAFAYETTE AND CITY OF LAFAYETTE (2025)

The defendant-appellant, the Department of Transportation and Development of the State of Louisiana (DOTD), appeals the judgment of the trial court ordering DOTD to pay court costs incurred by the plaintiffs, Christopher L. Clement, Sr. and Sherry Clement,¹ and by another defendant, the City of Lafayette and the Parish of Lafayette (collectively the Lafayette City-Parish Consolidated Government).

FACTS

On January 25, 2013, Christopher Clement, Jr., struck the rear of a pick-up truck while riding his motorcycle southbound on Ambassador Caffery Parkway in Lafayette on the overpass near the intersection with Cameron Street. Christopher suffered fatal injuries and died at the scene of the crash. His parents sued DOTD, and the Lafayette City-Parish Consolidated Government (Lafayette), seeking damages for wrongful death. The Clements alleged that DOTD and Lafayette failed to adequately design, construct, inspect, and repair the section of the road on which the crash occurred. They further alleged the signage inadequately warned motorists of the dangers of the overpass and traffic signal.

DOTD and Lafayette argued that Christopher's negligence caused the crash. After jury selection on March 27, 2023, the matter proceeded to trial from March 28 through 31, 2023. A jury decided the claims against DOTD, while the trial court decided the claims against Lafayette. Following the trial, the jury found Christopher and DOTD negligent. The jury apportioned 95% of the fault to Christopher and 5% of the fault to DOTD. The jury awarded $25,000 in general damages and $2,200 in funeral costs to each of the Clements. The trial court found that Lafayette was not liable for Christopher's death.

The Clements filed a motion for JNOV, new trial, and/or additur seeking an increase in the allocation of fault to DOTD and an increase in general damages. The trial court did not disturb the allocation of fault but increased the general damage award to each parent to $300,000. In a judgment rendered on June 2, 2023, the trial court ordered DOTD to pay damages of $15,110 each to the Clements and dismissed the claims of the parents against Lafayette with prejudice. That judgment further decreed that costs would be fixed by a rule to establish and fix costs at a later date. No party appealed this judgment.

Lafayette filed a Motion to Tax Costs on December 18, 2023, asking the trial court to assess its costs in the amount of $6,955.32 to the Clements. The Clements filed an opposition to Lafayette's motion to tax them with court costs, alleging that they were the prevailing party in the litigation.

The next day, the Clements filed a Motion to Tax Costs, arguing DOTD and Lafayette should pay their costs. They sought expert witness fees for James Loumiet of $40,192.33 and for Fearless Eye, Inc. of $15,610.45. They also asked for $6,219.62 for Mr. Clement's costs incurred with the clerk's office and $1,427.76 for Ms. Clement's clerk costs. DOTD filed an opposition to the Clements’ motion to tax costs. DOTD argued that each party should bear its own costs. Alternatively, DOTD argued that it should only be required to pay 5% of the costs incurred by the Clements. Further, DOTD argued that some of the itemized costs sought for Loumiet and Fearless Eye, such as travel costs, are not recoverable. Finally, DOTD argued that Fearless Eye's costs should not be taxed as court costs or should be reduced, either because they are not recoverable under the law or because they were unnecessary.

After a hearing on February 14, 2024, the trial court granted the motion to tax costs filed by Lafayette and the motion to tax costs filed by the Clements. The trial court ordered DOTD to pay the court costs of Lafayette in the amount of $6,995.32, plus interest until paid. The trial court awarded Mr. Clement court costs of $6,219.50, correcting an error in the computation submitted in the motion for costs. The trial court awarded Ms. Clement $1,427.76, as prayed for in her motion. The trial court awarded $37,762.50 for Mr. Loumiet's expert witness fees after disallowing his travel expenses. Finally, the trial court awarded $7,418.75 for Fearless Eye's expert fees. The trial court ordered DOTD to pay total costs of $51,400.75 to Mr. Clement and $1,427.76 to Ms. Clement. The trial court entered written reasons for its ruling at the request of DOTD.

DOTD has appealed the judgment assessing the court costs of Lafayette and the Clements against it.²

ASSIGNMENT OF ERROR

DOTD asserts three assignments of error:

1. The Trial Court abused its discretion when it assessed 100% of Plaintiffs’ costs against DOTD when that assessment is grossly disproportionate to the jury's finding that DOTD was merely 5% at fault for this accident, meaning that DOTD prevailed on 95% of Plaintiffs’ claim, and the Trial Court offered no valid equitable reason for that assessment.

2. The Trial Court abused its discretion when it assessed LCG's costs against DOTD because LCG did not succeed against DOTD, as there was no claim between those parties, nor did LCG seek its costs against DOTD. Rather, LCG succeeded against Plaintiffs because LCG was not liable for Plaintiffs’ claim against it.

3. The Trial Court abused its discretion when it assessed Fearless Eye's costs for computer modeling against DOTD when that modeling was unnecessary, as Loumiet did not need to rely on that modeling.

DISCUSSION

Louisiana Code of Civil Procedure Article 1920 states:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.

Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

Additionally, when a state agency is condemned to pay costs, La.R.S. 13:5112 applies. “[T]he trial ․ court, after taking into account any equitable considerations under La.Code Civ.P. art. 1920 ․ may grant in favor of the successful party and against the state ․ against which judgment is rendered, an award of such successful party's costs[.]” La.R.S. 13:5112(A). Costs against the state must be expressed in a dollar amount. Id. A trial court has broad discretion to award court costs as it deems equitable under La.Code Civ.P. art. 1920. Boutte v. Nissan Motor Corp., 94-1470 (La.App. 3 Cir. 9/13/95), 663 So.2d 154. On appeal, the award of court costs will not be disturbed absent an abuse of the trial court's discretion. Farrar v. Whaley, 16-790 (La.App. 3 Cir. 2/1/17), 211 So.3d 449, writ denied, 17-409 (La. 4/13/17), 218 So.3d 626.

In its first assignment of error, DOTD argues the trial court abused its discretion by awarding 100% of the Clements’ court costs to DOTD given the allocation of only 5% fault to DOTD, citing Broussard v. Delchamps, Inc., 571 So.2d 855 (La.App. 3 Cir.1990), writ denied, 575 So.2d 370 (La.1991). In Broussard, this court found that an allocation of 100% of the court costs to the defendant was an abuse of the trial court's discretion when the plaintiff was assigned 85% of the fault and the defendant only 15% of the fault for the plaintiff's injuries. The court amended the allocation of court costs to mirror the allocation of fault on the main demand.

DOTD also cites Bellard v. South Central Bell Telephone Co., 96-1426 (La.App. 3 Cir. 8/27/97), 702 So.2d 695, writ denied, 97-2415 (La. 12/12/97), 704 So.2d 1202. In that case, Bellard's vehicle and a truck owned by South Central Bell collided on a rural road in Acadia Parish. Bellard, on his own behalf and as tutor of his minor child, a passenger in the car, and Bellard's wife, also a passenger in the car, sued South Central Bell and the Acadia Parish Police Jury for damages they sustained in the collision. The trial court found the Bellard, South Central Bell, and the Acadia Parish Police Jury each one-third at fault for the damages sustained by the plaintiffs in the accident. The trial court assessed the police jury with half of the plaintiffs’ court costs. The police jury appealed. On appeal, this court amended the fault allocation to 46 2/3% to Bellard, 33 1/3% to South Central Bell, and 20% to the police jury. This court also found the trial court abused its discretion by not apportioning a part of the court costs to Bellard. We amended the court costs, finding that a “more equitable assessment would be to cast each party with a percentage of cost equal to their fault.” Id. at 708.

DOTD further cites Donavan v. Jones, 26,883 (La.App. 2 Cir. 6/21/95), 658 So.2d 755, writs denied, 95-1786, 95-1891 (La. 11/3/95), 661 So.2d 1379. There, the second circuit found that the trial court erred in ordering the defendants, Riverwood and DOTD, to each pay half the plaintiff's court costs, when the plaintiff was found partially at fault for the occurrence of the accident which caused his injuries. The court of appeal stated, “The trial court provided no explanation for assessing costs disproportionately to the allocation of fault.” Id. at 768. Citing Broussard, 571 So.2d 855, the court amended the allocation of the plaintiff's costs to the same as the allocation of fault.

Finally, DOTD cites Sallinger v. Robichaux, 98-2160 (La.App. 1 Cir. 6/23/00), 762 So.2d 761, vacated in part, 00-2269 (La. 1/5/01), 775 So.2d 437. The supreme court had remanded this case to the first circuit to consider two issues, one of which was the allocation of court costs. Sallinger v. Robichaux, 99-3305 (La.2/4/00), 758 So.2d 115. The trial court had assessed the plaintiff with all court costs, despite the jury's finding that the defendant was 33% at fault and the plaintiff 67% at fault. On remand, the first circuit found that the trial court abused its discretion because the record did not support a finding that the plaintiff “pointlessly incurred or engaged in other conduct that justify a realignment of court costs.” Id. at 765. The court of appeal amended the award of costs to apportion costs according to the apportionment of fault.

The Clements cite two more recent cases to support their argument that the trial court did not abuse its discretion in assessing all their court costs against DOTD. In Renfro v. Burlington Northern Santa Fe Railway Co., 15-372 (La.App. 3 Cir. 5/11/16), 193 So.3d 1192, this court affirmed a judgment of the lower court which assessed all court costs to DOTD even though the jury found DOTD 29% at fault for the damages suffered by the plaintiff. In affirming the judgment of the trial court, this court stated:

“Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” La.Code Civ.P. art.1920. This article “has been liberally interpreted as granting the trial court broad discretion in apportioning costs as it deems equitable.” Boutte v. Nissan Motor Corp., 94–1470, p. 13 (La.App. 3 Cir. 9/13/95), 663 So.2d 154, 162 (citation omitted). Assessing a negligent party with all court costs when other parties are jointly liable is not a per se abuse of the trial court's discretion. Id. DOTD does not explain how the trial court's assessment is otherwise an abuse of its discretion, and we can find no abuse of discretion in the record.

Id.at 1210-11.

In Roach v. State, through the Department of Transportation & Development, 20-211, 20-212 (La.App. 3 Cir. 9/22/21), 329 So.3d 974, writ denied, 21-1527 (La. 1/12/22), 330 So.3d 621, this court found that it was not an abuse of discretion for the trial court to assess all of the plaintiffs’ court costs against DOTD even though DOTD was found only 20% at fault for the damages. In Roach, Mr. Adams, who was intoxicated, lost control of the vehicle he was driving, veered off the roadway, and struck a pole. One of his passengers, Hannah McVey, died as a result of the injuries she sustained in the crash. The other passenger, Victoria Roach, sustained serious injuries. Hannah's parents filed suit against Mr. Adams, several insurers, and DOTD for wrongful death, and Ms. Roach separately filed suit against DOTD. The matters were consolidated for trial. After all but one defendant in the McVey case settled or were dismissed, a jury trial was held against DOTD. The jury found Mr. Adams 80% at fault for the damages sustained by the McVeys and Ms. Roach and DOTD 20% at fault. The plaintiffs in both suits filed motions to assess court costs against DOTD. DOTD filed a motion to assess court costs against the liability auto insurer of Mr. Adams and the liability insurer of the car driven by Mr. Adams at the time of the accident. The trial court assessed all court costs of the McVeys and Ms. Roach against DOTD.

On appeal, DOTD argued that it was an abuse of discretion for the trial court to assess all court costs of the plaintiffs against DOTD. In the case of Ms. Roach, this court held that because DOTD was the only defendant in her suit, it was the only party which could be cast with costs. Thus, the trial court did not abuse its discretion in refusing to apportion court costs. This court also found that in the case of the McVeys, the only other defendant remaining at the time of the trial was Mr. Adams, as a nominal defendant. This court found that the trial court did not abuse its discretion in refusing to assess court costs against dismissed defendants.

DOTD claims that the trial court's stated reasons for assessing all costs against DOTD do not provide an equitable basis for its decision. At the close of the hearing, the trial court stated:

I've read the briefs, I understand ya'll [sic] arguments[.] I understand what it [sic] is equitable but, Mr. Phillips [attorney for DOTD] if you have to file the law suit [sic] in the first place you have to incur expenses I understand that. So for me to say that when you file a law suit [sic] you maybe, even if you win something you maybe [sic] subjective [sic] to paying the majority of those costs I don't think equity comes in their [sic], you know. I think equity is what is fair in the big picture, not in the little picture.

In its written reasons, the trial court explained its decision further, stating:

The State prevailed only partially at trial after having filed and lost three pretrial motions for summary judgment on the issue of liability. Moreover, although the jury assessed only 5% fault to the State, the evidence presented at trial could have supported a greater assessment of fault without rendering the jury's verdict manifestly erroneous. The Court considered the law and cases cited by all parties and found, under the circumstances of the case, the most equitable result was to tax the costs against the State, without taking into account the allocation of fault.

DOTD argues the jury could have found DOTD was not liable at all, so the trial court's reasoning is misplaced. As neither party appealed the underlying judgment, the allocation of fault is not properly before this court for review.

Much of DOTD's argument is premised on the assumption that it should be considered the prevailing party. We reject that contention. While the Clements did not fully succeed on their claims against DOTD, they did prove to a jury that DOTD was at fault, at least partially, for the death of Christopher. DOTD states in its brief that “Plaintiffs lost far more than they won in the matter.” The trial court correctly noted, though, that in order to recover any damages from DOTD, the Clements had to file this lawsuit and incur costs in its pursuit. Finally, we note that DOTD filed three different motions for summary judgment, each of which the trial court rejected. These motions protracted the litigation and increased the plaintiffs’ costs (including expert fees) in opposing summary judgment.

We find no abuse of discretion in the trial court's assessment of 100% of the Clements’ court costs against DOTD.

In its second assignment of error, DOTD argues the trial court erred in ordering DOTD to pay the court costs incurred by Lafayette. We can find no authority, and Lafayette supplies none in its brief to this court, why DOTD should be condemned to pay Lafayette's court costs when Lafayette's rule to tax costs did not seek costs from DOTD, but only from the Clements. Lafayette prevailed on the claims filed against it by the Clements, not DOTD. The trial court abused its discretion in casting Lafayette's costs against DOTD, and that portion of the judgment is reversed.

Finally, DOTD argues that the trial court erred in awarding expert fees for Fearless Eye. DOTD claims the data provided by Fearless Eye was not necessary for the trial of this case, citing La.R.S. 14:4533 and Barre-Williams v. Ware, 20-665 (La.App. 4 Cir. 4/28/21), 365 So.3d 760. We find that the trial court was in the best position to consider the costs submitted for Fearless Eye's work product used in the course of the trial. The trial court obviously determined that some of the expenses submitted by Fearless Eye were not recoverable, as evidenced by the trial court's determination that DOTD only had to pay $7,410.75 of the $15,610.45 originally sought by the Clements. We find no abuse of discretion in the trial court's award of a portion of Fearless Eye's costs.

CONCLUSION

The judgment of the trial court ordering DOTD to pay Lafayette's court costs in the amount of $6,995.32 is reversed. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal in the amount of $12,148.75 are assessed to DOTD.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

FOOTNOTES

1.   While the Clements were married at the time of Christopher's death in 2013 and when this suit was filed in 2014, they divorced before the trial began in 2023.

2.   In an unpublished opinion, this court granted DOTD's motion to supplement the record to include the transcript of the jury trial and to suspend briefing delays pending the receipt of the supplemental record. Clement v. State, through the Dep't of Trans. & Dev., 24-256 (7/17/24).

ELIZABETH A. PICKETT CHIEF JUDGE

PICKETT, Chief Judge.