
    Shawn JUNEAU v. Dianna B. RICHARD, et al., Plaintiff-In-Reconvention-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Louisiana Farm Bureau Mutual Insurance Company, Defendants-Appellees.
    No. 96-215.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 13, 1996.
    Writ Denied Jan. 31, 1997.
    
      David Kelly Balfour, Lafayette, Woodrow W. Wyatt, Baton Rouge, for Dianna B. Richard.
    Charles Collins Garrison, New Iberia, for Louisiana Farm Bureau Mutual Ins. Co.
    Leon Elzear Roy III, New Iberia, for State Farm Mutual Automobile Ins. Co.
    Before KNOLL, WOODARD and DECUIR, JJ.
   hDECUIR, Judge.

This case arises out of an automobile accident on December 4, 1992, between vehicles driven by Shawn Juneau and Dianna Richard. Both vehicles were traveling south in rural Iberia Parish when Richard began to make a left turn into a private driveway at the same time Juneau was attempting to pass Richard’s vehicle. Claims and counterclaims were filed; however, Richard’s suit against State Farm Mutual Automobile Insurance Company, the uninsured motorist carrier for the vehicle driven by Richard, and Louisiana Farm Bureau Mutual Insurance Company, Richard’s own uninsured motorist carrier, are the only claims at issue. All other claims were settled and dismissed prior to trial.

At the conclusion of plaintiff’s case, defendants moved to dismiss Richard’s suit claiming that Richard failed to prove that Shawn Juneau was an underinsured motorist pursuant to La.R.S. 22:1406 D. Richard moved for a continuance to reopen the 12evidence to attempt to prove Juneau’s insurance coverage. The trial court allowed Richard’s attorneys to search their files for the insurance information, to question representatives of State Farm and Farm Bureau and to file two additional exhibits. Richard’s attorneys did not have Juneau’s policy information in their files. Defendants’ representatives testified they had no knowledge of Juneau’s policy limits. The trial court performed an in camera review of defendants’ representatives’ files and determined the files did not contain insurance coverage information relating to Juneau. Richard’s attorneys then moved the trial court to hold the record open for additional evidence.

Dianna Richard appeals the judgment of the district court dismissing with prejudice Richard’s claims against State Farm and Louisiana Farm Bureau. Richard contends the trial court erred in granting defendants’ motion for involuntary dismissal and in denying Richard’s motion to hold the record open for the introduction of further evidence. Richard also contends that the trial record is complete and requests this court to render a judgment on the merits. We affirm.

Pursuant to La.Code Civ.P. art. 1601, a continuance is discretionary and may be granted where the court finds “good cause therefor.” La.Code Civ. P. art. 1602 provides the peremptory grounds for a continuance:

A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

As stated by this court in Valley v. American Ins. Co., 510 So.2d 449 (La.App. 3 Cir.1987), La.Code Civ.P. arts. 1631 and 1632 confer upon a trial judge broad powers to control trial proceedings. Whether to hold a case open for the production |3of additional evidence rests within the sound discretion of the trial judge, and his decision will not be disturbed on appeal unless it was clearly wrong. Id. at 457.

We conclude, as did the trial judge, that mandatory grounds for a continuance do not apply to this case. Nor do we find error in the trial judge’s denial of plaintiffs motion for continuance under La.Code Civ. P. art. 1601. Furthermore, we find no clear error in the trial judge’s decision not to hold the case open for additional evidence.

The trial judge in written reasons for judgment specifically set out the numerous opportunities plaintiff had both pre-trial and post-trial to introduce the necessary policy information as follows:

(1) The plaintiff never attempted to secure or introduce an affidavit from Juneau regarding his insurance coverage or lack thereof.
(2) The record does not contain written interrogatories or Request for Production of Juneau’s policy.
(3) Juneau’s deposition was never taken.
(4) Plaintiff did not subpoena Juneau’s policy for trial.
(5) An extensive pre-trial conference was held at which it was specifically discussed that all parties should exchange any and all insurance policy information. The pretrial conference was held while Mr. Juneau’s insurance carrier, Imperial Fire and Casualty Co., was still a party defendant. The Court filed the joint pre-trial stipulations into evidence at the trial on July 7 as Court Exhibit 1. The stipulation was prepared by the plaintiff and signed by all parties, but did not contain a stipulation as to insurance coverage.
(6) At the beginning of the trial, the Court took a fifteen minute recess and ordered the plaintiffs and defendants to pre-file and pre-mark all exhibits they intended to introduce into evidence. Plaintiff had yet another opportunity to introduce evidence of the Juneau policy, or obtain a stipulation as to insurance coverage, and failed to do so.
(7) After having been advised by one of the defendants that it had released Shawn Juneau from a subpoena for the day, the Court ordered defendant to have Mr. Juneau returned to Court for ^questioning. Mr. Juneau was placed on the stand by the defendants and cross-examined by the plaintiff. Plaintiff’s counsel failed to ask him any questions whatsoever concerning insurance coverage.

The trial judge correctly noted that including the steps taken after the conclusion of plaintiff’s case, plaintiff had at least ten opportunities to prove Juneau’s coverage. The numerous opportunities afforded the plaintiff to prove her case make it clearly distinguishable from the cases cited by plaintiff in support of her position.

The trial judge has the power to require that proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done. La.Code Civ.P. art. 1631 A. In written reasons for judgment, the trial court states:

This Court feels that the importance of preserving the sanctity of Court proceedings is extremely important to the administration of justice. A relaxation of the rules in this ease may do “substantial injustice” for Mrs. Richard, but will result in “substantial injustice” to the defendants who obeyed all of the Court’s pre-trial orders, the order of trial and who were present in Court and prepared. These defendants were entitled to have their case disposed of “on the basis of the law and evidence presented on July 7, 1995.” (Emphasis theirs.)

Considering the law and the facts of this case, we conclude that the trial judge acted clearly within his discretion in granting defendants’ motion for dismissal.

Because of our ruling, we do not reach plaintiffs request to render judgment on the merits. Nevertheless, we note that the record is not complete as defendants’ motion for dismissal was made at the close of plaintiffs case and prior to presentation of defendants’ case.

Costs of appeal are assessed to plaintiff-appellee.

AFFIRMED.

KNOLL, J., concurs and assigns reasons.

WOODARD, J., dissents with reasons.

liKNOLL, Judge,

concurring.

The record shows the plaintiff woefully failed to prove at trial, after being given many opportunities to do so, the basic elements of a UM claim. Under these circumstances, we cannot say the trial judge abused his wide discretion in dismissing plaintiffs claim with prejudice.

j iWOODARD, Judge,

dissenting.

I respectfully disagree with an affirmation in this case, as it serves a grave injustice to a party, originally due, it appears, to counsel error, and the judge had the information in question in hand within a reasonable time period after he had agreed to hold the ease open. Further, the inclusion of such evidence would in no way have prejudiced defendants who had to be well aware of the evidence. Notwithstanding, my research indicates that in the vast number of similar cases, judges have permitted the inclusion of evidence.

Consider that the trial court allowed three exhibits to be introduced into evidence after the defendants moved for dismissal. The exhibits provided some evidence of Juneau’s liability coverage. At that time, Richard requested that the record be held open for seven days in order to provide the required statutory proof. The court took the request under advisement, allowing Richard, in the alternative, to offer a proffer within twenty-one days. Richard submitted a post-trial memorandum Land several documents as part of her proffer. One of those proffers, namely “G,” satisfies the statutory requirement for prime facie proof. According to Richard’s brief, Proffer “G,” the sworn affidavit of Juneau, stating that his liability policy limit was 10/20 and that he had no other coverage, was made available to the court within three days from the end of trial. Yet, the trial court refused to allow the proffers into evidence and did not consider them in rendering judgment.

Richard recognizes that she did not introduce the requisite evidence required by the statute to satisfy her burden of proof as to Juneau’s liability limits. However, Proffer “G,” Juneau’s sworn affidavit, would have satisfied the statutory requirement of prime facie proof and shifted the burden to the defendants. In addition, this Court has stated that the statute does not provide the exclusive methods of proof and that the plaintiffs burden may be satisfied by other evidence. Launey v. Thomas, 379 So.2d 27 (La.App. 3 Cir.1979). To that end, the post-trial evidence offered by Richard, which included the sworn testimony of the defendants, indicated that the extent of Juneau’s coverage was 10/20 and that his limits were exhausted.

In Thibodeaux v. Imperial Lloyds, 556 So.2d 1013 (La.App. 3 Cir.1990), this court allowed introduction of the evidence, even though it was one day past the time the court agreed to hold open the record, because there was ample time for the court to consider the evidence before rendering its decision. Similarly, in Dowden v. Miller, 425 So.2d 706 (La.1982), the Supreme Court held that a trial judge abused his discretion by failing to accept documentary evidence after the case had been submitted. More importantly, in Dowden, the ease had been under advisement for seven months, six months longer than in the case sub judice.

The trial judge attempts to justify his judgment to exclude the evidence and dismiss plaintiff’s claim by distinguishing the instant ease from the aforementioned cases on the basis of the number of opportunities the respective parties had to present the evidence, concluding that the plaintiff in the case at bar had so many more opportunities than those in previous eases. That, however, is speculation. Those prior cases cannot be so distinguished from the present one as we cannot discern how many opportunities the other parties had since that was not an issue discussed.

The fact remains that in the instant case, the judge had Proffer “G” in hand weeks before he rendered his judgment and well within the twenty-one day grace period he had afforded plaintiff, yet he chose to ignore it. Further, the court ^acknowledges that appellate courts are prone to consider “keeping evidence out” as an abuse of discretion, yet ignores such precedence, evidenced by his Written Reasons for Judgment, in which he cites case after case, followed by this proposition:

[I]t seems that when the Trial Judge let the evidence in, it was not an abuse of discretion. When the Judge kept the evidence out, it was an abuse of discretion. ... Nevertheless, this Court chooses to exercise its ‘vast discretion.’ Under the peculiar facts and circumstances of this case, this Court will “keep the evidence out.”

It is not clear to what “peculiar facts and circumstances” the court could be referring as the error in this case is not nearly as egregious as some of the transgressions in those cases cited by the trial judge in his reasons, and his conclusion after weighing the injustices seems to be misplaced:

This Court has carefully weighed and considered all of the factors involved in deciding this case and is persuaded that especially in light of the many opportunities afforded the plaintiff to prove coverage, that it would be a substantial injustice to the defendants to give plaintiff yet another chance. With reluctance, and sympathy for plaintiff’s predicament, the interests of justice in this case requires this Court to dismiss Richard’s claims and deny the Motion to Reopen the Evidence.

In essence, the court believes that it is less of an injustice to ignore prime facie evidence in his possession, weeks before rendering a decision, and to dismiss plaintiffs legitimate claim than to have the defendants experience a three-day delay in the proceedings. Based on the fact that the required evidence was provided a few days following close of Richard s ease and within the time period allowed by the court for the proffer and that defendants were in no way prejudiced by the inclusion of evidence of which they had knowledge, the circumstances would justify altering the order of trial in order for justice to be done.  