Michel Jackson Miller, Individually and as Natural Tutrix of her minor son v. The State of Louisiana Department of Corrections, Rodney Strain, Sheriff of the Parish of St. Tammany, Northshore Workforce, L.L.C., Victory Bible Church, A Louisiana Religious Corporation ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
MICHEL JACKSON MILLER, NO. 2020 CW 0772
INDIVIDUALLY, AND AS NATURAL PAGE 1 OF 2
TUTRIX OF HER MINOR SON
VERSUS
THE STATE OF LOUISIANA
DEPARTMENT OF CORRECTIONS,
RODNEY STRAIN, SHERIFF OF
THE PARISH OF ST. TAMMANY,
OCTOBER 26, 2020
NORTHSHORE WORKFORCE,
L. L. C., VICTORY BIBLE
CHURCH, A LOUISIANA
RELIGIOUS CORPORATION
In Re: Northshore Workforce, L. L. C., applying for supervisory
writs, 22nd Judicial District Court, Parish of St.
Tammany, No. 201511850.
BEFORE: WHIPPLE, C. J., WELCH AND CHUTZ, JJ.
WRIT DENIED.
VGW
WRC
Welch, J., dissents and would grant the writ. I find the
trial court abused its discretion by granting the motion for new
trial filed by plaintiff, Michel Jackson Miller, individually
and as natural tutrix of her minor son. The plaintiff filed a
motion for new trial pursuant to La. Code Civ. P. art. 1972( 1)
and ( 2) after the trial court granted the motion for summary
judgment filed by relator, Northshore Workforce, L. L. C. First,
the plaintiff asserted that " key witnesses" were located after
the hearing on Northshore' s motion such that a new trial was
warranted per Article 1972( 2). I disagree. Plaintiff' s efforts
to locate these witnesses prior to the hearing minimally
included unsuccessful internet searches and mail sent to one
witness that was returned " undeliverable." There is no
indication the plaintiff moved for a continuance of the hearing
on Northshore' s motion to enable her to locate these witnesses.
I find the plaintiff failed to establish that she exercised the
requisite due diligence in attempting to timely locate these
witnesses. See Beverly Construction L. L. C. v. Wadsworth Estates,
L. L. C., 2019- 0911 ( La. App. 1st Cir. 2/ 26/ 20) , 300 So - 3d 1, 8- 9
Due diligence requires that a party do all that is reasonable
to lead to the discovery of the evidence.) Next, the plaintiff
moved for new trial pursuant to Article 1972( 1) and asserted
that the testimony from the new " key witnesses" will establish
that the judgment granting Northshore' s motion was clearly
contrary to the law and evidence. This argument fails. When a
motion for new trial is based on the contention that the
judgment is clearly contrary to the law and evidence, no
additional evidence
may be presented at the hearing on the
motion. See Rivet v. State, Department of Transportation &
Development, 2001- 0961 ( La. 11/ 28/ 01), 800 So. 2d 777, 781.
Finally, to the extent the trial court relied on argument of
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
NO. 2020 CW 0772
PAGE 2 OF 2
plaintiff' s counsel to find error in the judgment granting
Northshore' s motion for summary judgment, I likewise find this
was an abuse of discretion pursuant to La. Code Civ. P. art.
1973. Argument of counsel, no matter how artful, is not
evidence. Tour Holdings, L. L. C. v. Larre, 2018- 0503 ( La. App.
1st Cir. 12/ 6/ 18), 267 So. 3d 735, 738. Consequently, I would
reverse the trial court' s judgment granting the plaintiff' s
motion for new trial.
COURT OF APPEAL, FIRST CIRCUIT
DEPUTY CL RK O COURT
FOR THE COURT