Anderson v. Dean

346 So.3d 356

Nancy ANDERSON; Joy Manguno; Jayme Songy, as Curator for Malvina Songy; and Janice Verdin, as Responsible Party of Catherine Roussell; Individually and on Behalf of Others Similarly Situated

v.Bob DEAN, Jr.

NO. 22-C-233

Court of Appeal of Louisiana, Fifth Circuit.

July 25, 2022

COUNSEL FOR PLAINTIFF/RESPONDENT, NANCY ANDERSON, JOY MANGUNO, JAYME SONGY AS CURATOR FOR MALVINA SONGY, AND JANICE VERDIN AS REPRESENTATIVE OF CATHERINE ROUSSELL, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, Robert E. Couhig, Jr., Donald C. Massey, Jonathan P. Lemann, Jason A. Cavignac, Robert E. Couhig, III, New Orleans, Blair C. Constant, Robert T. Martin, II

COUNSEL FOR DEFENDANT/RELATOR, BOB DEAN, JR., H. Minor Pipes, III, Stephen L. Miles, Kelsey L. Meeks, New Orleans, Jennifer S. Martinez

Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

GRAVOIS, J.

Defendant/relator, Bob Dean, Jr., seeks this Court's supervisory review of the ad hoc judge's May 18, 2022 ruling which denied relator's Motion to Recuse the Hon. Donald "Chick" Foret as presiding judge over this matter. For the following reasons, we grant this writ application, reverse the ad hoc judge's ruling which denied relator's Motion to Recuse, grant the Motion to Recuse, and remand this matter to the trial court for further proceedings. Further, the stay issued by this Court in this matter on May 24, 2022 is hereby lifted.

FACTS AND PROCEDURAL BACKGROUND

This is a putative class action lawsuit for damages that was brought individually and in a representative capacity on behalf of residents of various nursing homes in the New Orleans area who were evacuated in the wake of Hurricane Ida to a warehouse in Independence, Louisiana. Defendant/relator, Mr. Dean, is alleged to be the owner of the subject nursing homes. The case was assigned to Judge Donald "Chick" Foret's division of the 24^th Judicial District Court.

A status conference was held in the matter before Judge Foret on May 4, 2022. Near the conclusion of the status conference, Judge Foret raised the issue of a conflict of interest with counsel present and asked Ms. Suzette Bagneris, an attorney involved in this case for several of the plaintiffs, about her affiliation with Jason Baer, an attorney who is not enrolled in this case. When Ms. Bagneris responded that she did indeed have a business affiliation with Mr. Baer, Judge Foret declared that he may need to recuse himself from this matter. Judge Foret then advised those present that Mr. Baer had been involved in an auto accident on his property. Judge Foret then made some very disparaging and derogatory comments about Mr. Baer, including the use of an expletive, in describing his feelings towards Mr. Baer. It was also revealed that Mr. Baer is represented by counsel for Mr. Dean, Stephen Miles, in a suit currently pending in the 24^th Judicial District Court as a result of said auto accident in which Judge Foret may be a witness.

A few days later, Mr. Dean filed a Motion to Recuse Judge Foret from this matter, asserting that based on Judge Foret's comments at the status conference about Mr. Baer, there is a substantial and objective basis to question whether he would be impartial in this case, given Mr. Baer's close working relationship in other matters with Ms. Bagneris, and Mr. Baer's being a current client of Mr. Dean's counsel in the other suit that involves the auto accident which occurred on Judge Foret's property. As such, the motion argued that there exists a substantial and objective basis that would reasonably be expected to prevent Judge Foret from conducting any aspect of this cause in a fair and impartial manner, and accordingly, justice required recusal. After Judge Foret declined to recuse himself from this matter, the Supreme Court appointed an ad hoc judge to hear the Motion to Recuse.¹

At the contradictory hearing on the Motion to Recuse conducted on May 18, 2022, the court heard testimony from three of the attorneys who were present at the status conference in question and who heard Judge Foret's statements about Mr. Baer.² Mr. Miles, counsel for Mr. Dean in this case and also defense counsel for Mr. Baer in the auto accident litigation, testified, as did Philip Watson, defense counsel for the various nursing home defendants in the case. Ms. Bagneris, counsel for a group of plaintiffs in this case, testified regarding her business relationship with Mr. Baer. Finally, Mr. Baer himself testified, part of which was proffered and part of which was before the ad hoc judge.

Stephen Miles testified first. He stated that he has been very active in this case since earlier in the year when the cases were remanded from federal court. He explained that he had participated in several status conferences with Judge Foret, which were usually "very long," taking hours to conduct and covering many different topics. Near the end of the subject status conference, which had already lasted over three hours, Judge Foret "brought up an issue related to a conflict that he perceived he may have." Mr. Miles explained that while the first three hours of the status conference, which included agenda items, were on the record with a court reporter, at some point the court reporter left to deal with childcare issues. It was after the court reporter left that Judge Foret brought up the issue of his potential conflict.

Mr. Miles testified that Judge Foret raised the issue of his potential conflict himself, saying that he had "heard from someone" that Ms. Bagneris was a "partner" with Mr. Baer, and he thought that he may have to recuse himself as a result of that relationship. Mr. Miles testified that before this revelation, he was unaware of any issue between Judge Foret and Mr. Baer.

At this point, Mr. Miles testified, Judge Foret told those present that Mr. Baer had threatened physical violence against him and that he (Judge Foret) had reported it to the FBI. Mr. Miles testified that Judge Foret's comments "indicated that he didn't think he could be fair with respect to - - because [ ] Ms. Bagneris and Mr. Baer had a relationship." Mr. Miles recalled that Judge Foret then "used an expletive to describe Mr. Baer,"³ which "shocked" Mr. Miles, as he had "never seen that before." Judge Foret then continued to disclose his dislike of Mr. Baer. Mr. Miles testified that he then felt compelled to immediately disclose to Judge Foret that he had been hired by USAA Insurance, Mr. Baer's automobile liability carrier, to defend Mr. Baer in the auto accident suit. Because Judge Foret's comments directed at Ms. Bagneris were so strong, Mr. Miles felt that Judge Foret should also know of his connection to Mr. Baer. At this point, Judge Foret asked if this was the suit involving Mr. Baer's sister (who was a guest passenger with Mr. Baer). When Mr. Miles confirmed that it was, Judge Foret told them that Mr. Baer had hit his tree in his yard. Judge Foret then pulled out his cell phone and showed a video of the accident in his front yard with Mr. Baer's vehicle hitting his tree.

Mr. Miles testified that his impression of the comments by Judge Foret "[a]bsolutely" indicated that Judge Foret would have a problem being fair with anyone who had a relationship with Mr. Baer. Mr. Miles explained that the auto accident suit had since reached an agreement in principle to settle around May 13, 2022 (about a week after the status conference, but before the recusal hearing on May 18, 2022), but that the funding had not yet happened and settlement documents had not yet been signed.⁴ Mr. Miles was unsure if Judge Foret's claims that Mr. Baer had threatened him with violence were related to that suit, but felt it likely, and was unsure whether Judge Foret might assert a property damage claim regarding the accident on his property in the future.

Mr. Miles repeated that Judge Foret brought up the matter of his animus towards Mr. Baer on his own, and that it was his impression that no one at the status conference knew that he would react in this way regarding Mr. Baer. Mr. Miles testified that at the status conference, after all of these revelations, he told Judge Foret that he would have to look into whether it was appropriate to file a motion to recuse.

On cross-examination, Mr. Miles confirmed that he first looked into the recusal issue before talking to Mr. Baer. He confirmed that he did not bring the motion on behalf of Mr. Baer, who was not enrolled in this suit or otherwise involved as a witness in this suit. Mr. Miles testified that he brought the Motion to Recuse because the judge was "very clear" by his words and actions that "it mattered" to him that there was a connection between a lawyer in this case and Mr. Baer, and Judge Foret's use of an expletive to describe Mr. Baer and his comments made it clear to him that he could not be fair to anyone who had a connection with Mr. Baer.

On redirect examination, Mr. Miles "absolutely" denied that filing of the Motion to Recuse was a delay tactic. He felt that Judge Foret's comments at the status conference created a real issue that resulted in an appearance of impropriety and actual bias such that neither side could get a fair hearing. He felt that Judge Foret's comments were so strong against Mr. Baer, words that he had never heard from a judge before, that even the ending of his and Ms. Bagneris's relationships with Mr. Baer would not change Judge Foret's inability to be fair to both sides. In Mr. Miles's words, "you can't undo it; You can't unring the bell." He also stated that he expected that Judge Foret could potentially be a witness in the auto accident suit, and further that he himself or other people at the recusal hearing could potentially be witnesses, too, in other possible litigation arising from the events of the status conference.

Attorney Philip Watson testified next. Mr. Watson represents corporate defendants in this case, which are several LLCs and corporations that run the nursing homes owned by...