The Contemporaneous Objection Requirement in Louisiana — Preserving Error for Appeal

Louisiana Code of Civil Procedure article 1793(C) states, “A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict, or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection.” As one court of appeal has stated, “The proper and efficient administration of civil jury trials demands that a trial judge be given an adequate opportunity to recognize and correct errors he may have committed in his instructions before submitting the case to the jury.” Watts v. Aetna Cas. & Sur. Co., 309 So.2d 402, 405 (La. App. 2d Cir.), writs denied, 313 So.2d 601 (La. 1975). The supreme court recently held that an appellate court erred in considering the propriety of jury instructions in the absence of any objection by the parties. Guidry v. Dwight Manuel, Inc., 04-C-2031 (La. 11/17/04) 887 So.2d 456 (per curiam).

The contemporaneous objection rule has two requirements. The first, and most familiar, is the temporal requirement — the objection must be made either before or immediately after the jury retires. Thus in Sledge v. Continental Cas. Co., 25,770 (La. App. 2 Cir. 6/24/94), 639 So.2d 805, the court held that an objection made twenty minutes after the jury retired, and after the jury had returned with a question, was too late to preserve any error for appeal.

The second requirement is that of specificity as to both the objectionable matter and the basis for the objection. An objection that is general as to the instructions, or that fails to state the grounds for the objection, does not preserve error for review. Thus, where the record shows an objection, but the grounds are not stated, the objection is deemed waived. See, e.g., Etcher v. Neumann, 00-2282 (La. App. 1 Cir. 12/28/01), 806 So.2d 826, writ denied, 02-0904 (La. 5/31/02), 817 So.2d 105; Sanders v. Bain, 31,362 (La. App. 2 Cir. 12/9/98), 722 So.2d 386; Dehart v. Burlington N. & S.F. R. Co., 03-279 (La. App. 5 Cir. 10/28/03), 860 So.2d 248, writ denied, 03-3251 (La. 26/04), 865 So.2d 732. It is the objecting party’s responsibility to ensure that both the objection and its asserted basis appear in the record. Menzie Tile Co. v. Professional Centre, 594 So.2d 410 (La. App. 1st Cir. 1991), writ denied, 600 So.2d 610 (La. 1992).

Despite the requirements of article 1793(C), some Louisiana courts have recognized an exception to the contemporaneous objection requirement in cases of “plain and fundamental error.”

In Berg v. Zummo, 786 So.2d 708, 716 n.5 (La. 2001), the lower courts, on the basis of a jury verdict, awarded exemplary damages under La. C.C. article 2315.4 against a server of alcoholic beverages. The plaintiff argued that the defendants had not objected to the pertinent jury instructions, but the supreme court rejected that argument, stating that “the jury instructions and interrogatories . . . misstated the law and thus contained a ‘plain and fundamental’ error which leads us to relax the contemporaneous objection requirement.” But the court did not use this to justify a de novo fact review, but only to justify reviewing the legal correctness of the unobjected-to instructions and interrogatories. At least two intermediate appellate court cases have reviewed jury instructions in the absence of an objection in cases of “plain” or “clear” error. Jones v. Peyton Place, Inc., 95-0574 (La. App. 4 Cir. 5/22/96), 675 So.2d 754, 760-61 (failure to instruct the jury on the plaintiff’s alternative theory of strict liability under former La. C.C. art. 2317 held to have interdicted fact finding and thus justified de novo review); Guidry v. Bank of LaPlace, 94-1758 (La. App. 4 Cir. 9/15/95), 661 So.2d 1052, 1057 & n.10, writs denied, 95-2477, 95-2490, 95- 2498 (La. 1/5/96), 666 So.2d 295, 296 (erroneous creation of an independent cause of action for aiding and abetting fraud tainted the verdict and thus required de novo review). Several other cases have referred to the doctrine in dicta, while not finding plain or fundamental error present.

Despite these cases, there remain indications that the doctrine may not be wholly embraced by the Louisiana Supreme Court. In State v. Thomas, 427 So.2d 428 (La. 1983), the court rejected a “plain error” exception in Louisiana criminal cases, because (as here) the Louisiana code article was silent, while the analogous federal rule, Fed. R. Cr. P. 52(b), explicitly recognized such an exception. And in Nicholas v. Allstate Ins. Co., 99-2522 (La. 8/31/00), 765 So.2d 1017, 1023 n.7, the court reviewed instructions that had not been assigned as error on appeal, but explicitly stated that it “in no way abrogate[d] that body of jurisprudence which requires that a party must assert an objection in the trial court in order for an appellate court to reach the issue.” In light of these cases, and the further uncertainty concerning whether a given error will be deemed sufficiently “fundamental,” the cautious practitioner will continue to make the objection in accordance with article 1793(C).

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