The Constitutional Authority Giving Our Appellate Courts Jurisdiction of Fact Should Be Repealed

Author:William E. Crawford
Position:Professor of Law
The Constitutional Authority Giving Our Appellate
Courts Jurisdiction of Fact Should Be Repealed
William E. Crawford
The Louisiana Constitution of 1974, Article V, Section 5(C)
provides that “[e]xcept as otherwise provided by this constitution,
the jurisdiction of the supreme court in civil cases extends to both
law and facts.”1 The courts of appeal are given the same appellate
jurisdiction of fact.
The right to civil trial by jury in Louisiana is found in
Louisiana Code of Civil Procedure article 1731(A): “Except as
limited by article 1732, the right of trial by jury is recognized.”2
In our federal system, the right to civil trial by jury is found in
the Seventh Amendment: “In Suits at common law, where the
value and controversy shall exceed twenty dollars, the right of trial
by jury shall be preserved, and no fact tried by jury, shall be
otherwise reexamined in any Court of the United States, than
according to the rules of the common law.”3
For states other than Louisiana, their constitutions contain
provisions to the effect that the right to civil trial by jury, as known
at the common law, “shall remain inviolate.”4 In those states and in
the federal system, courts may review the record of the jury trial,
and if the verdict was reached on insufficient evidence or on
improper instructions, the case may be remanded for further trial.
Nevertheless, the reviewing court has no authority to issue its own
positive judgment in place of that rendered by the court on the
verdict rendered by the jury.
In Louisiana, however, the grant of jurisdiction of fact to our
appellate courts enables them to review the record of a civil jury
trial, to find that on the facts the jury verdict was wrong, and then
to issue its own judgment contrary to the verdict of the jury.
Copyright 2013, by WILLIAM E. CRAWFORD.
James J. Bailey Professor of Law, Paul M. Hebert Law Center, Louisiana
State University; Director, Louisiana State Law Institute.
1. LA. CONST. art. V, § 5(c).
2. LA. CODE CIV. PROC. art. 1731(A) (2012).
3. U.S. CONST. amend. VII (emphasis added).
4. See, e.g., ALA. CONST. art I, § 11; MISS. CONST. art. III, § 31; OKLA.
CONST. art. II, § 19; S.C. CONST. art I, § 14; TENN. CONST. art. I, § 6.
In the case of Brewer v. J.B. Hunt Transport, Inc., the plaintiff
filed suit for personal injuries sustained when he rear-ended an 18-
wheel tractor-trailer owned by J.B. Hunt.5 “Following a two-week
trial, the jury returned a verdict in favor of the defendants, finding
Brewer 100 percent at fault for the collision.”6 The court of appeal
reversed the jury’s allocation of 100% fault to Brewer and found
the defendants 60% at fault for the accident, assessing plaintiff
Brewer with only 40% of the fault.7 The court of appeal awarded
special damages in the amount of $10,677,634.93 and general
damages in the amount of $2,500,000, subject to reduction by
Brewer’s degree of fault.8 That was a judgment rendered by the
court of appeal.
The supreme court granted certiorari and, after reviewing the
record, found that the defendants were 30% at fault and that
Brewer was 70% at fault.9 “In all other respects, the judgment of
the court of appeal [was] affirmed.”10 Thus, the court of appeal
exercised its jurisdiction of fact only to be partially overruled by
the supreme court’s exercise of jurisdiction of fact, while the jury
found Brewer to be 100% at fault. Therefore, even though the
appellate courts were exercising their constitutional authority, it
appears that the jury verdict was meaningless.
In another case, Menard v. Lafayette Insurance Company,
“[f]inding manifest error in the jury’s award for future medical
expenses, the appellate court increased the award to $1,413,508.75.”11
The supreme court granted certiorari and concluded: “[W]e reverse
the Court of Appeal’s judgment and reinstate the jury’s verdict.”12
Had the supreme court not granted certiorari, the court of appeal’s
dramatic change of the jury’s verdict would have stood as the law in
that case.
In Fontenot v. Patterson, the jury entered a verdict assigning
90% fault to the defendant driver, 10% fault to the plaintiff driver,
and 0% fault to the Louisiana Department of Transportation and
5. 35 So. 3d 230, 233 (La. 2010).
6. Id.
7. Id.
8. Id.
9. Id.
10. Id.
11. 31 So. 3d 996, 999 (La. 2010). The jury rendered judgment in the
plaintiff’s favor: $88,373.73 for future medical expenses.
12. Id. at 1000.
Development (DOTD).13 The trial judge granted a judgment
notwithstanding the verdict (JNOV) and awarded additional
damages in the amount of $500,000 to the plaintiff.14 The court of
appeal reduced the defendant’s 90% liability to 50% and allocated
50% to the DOTD.15 After certiorari review by the supreme court,
the case was remanded to the court of appeal “to review only the
jury’s verdict and to utilize the manifest error standard.”16 The
court of appeal then changed the allocation of fault accordingly to
60% to the defendant and 40% to the DOTD.17 On certiorari, the
supreme court “reverse[d] the court of appeal’s judgment as to the
allocation of liability and assessment of damages and cost and
reinstate[d] the jury’s verdict.”18
The Appendix below shows the same exercise of jurisdiction of
fact to reverse a jury’s verdict and to render a contrary judgment. It
is not a plaintiff-versus-defendant issue because there are opinions
reversing jury verdicts for plaintiffs and defendants alike.19
Similarly, in Fauria v. Doe, the plaintiffs’ $50,000 jury award
was reversed by the appellate court with judgment rendered to the
contrary.20 Also in McLean v. Hunter, the jury found for the
defendant doctor, but the supreme court reversed and remanded to
the court of appeal.21 The court of appeal, however, tried the case
again on the record and likewise rendered judgment for the
defendant.22 In Whittle v. Miller Electric Manufacturing Company,
the supreme court went on to say that “the jury clearly erred when
it accepted the testimony of [the plaintiff’s expert witness] over
that of all other[s].”23 The verdict in favor of the plaintiff was
reversed and judgment was rendered for the defendant.24
13 . 23 So. 3d. 259, 265 (La. 2009). This was an intersectional collision
involving two drivers and an allegation against DOTD for allowing an obstruction
prohibiting proper outlook for traffic.
14. Id. at 266.
15. Id.
16. Id.
17. Id.
18. Id. at 275.
19. E.g., Thames v. Zerangue, 411 So. 2d 17, 18 (La. 1982). The jury found
in favor of the following motorists, but the supreme court reversed and rendered
for the defendant preceding motorist.
20. 483 So. 2d 148, 149 (La. Ct. App. 4th 1985).
21. 495 So. 2d 1298, 1299–1300 (La. 1986) (a dental malpractice action).
22. McLean v. Hunter, 510 So. 2d 771, 778 (La. Ct. App. 1st 1987).
23. 507 So. 2d 266, 272 (La. Ct. App. 3d 1987). The jury found in favor of
the plaintiff for $563,000, and the appellate court reversed, stating that “the only
evidence supporting the jury’s conclusion is the opinion testimony [of the
plaintiff’s expert witness].” Id. at 271.
24. Id. at 272.

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