text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. William A. MONTELEONE, et al.
    No. 07-CA-459.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.
    Rehearing Denied March 3, 2008.

      Gregory G. D’Angelo, Wm. David Coffey, Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellee.
    Randall A. Smith, L. Tiffany Davis and James J. Coleman, Sr., Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ¡/The landowners of 153 acres of wetlands appeal a judgment in a suit for damages following the expropriation of the property by the State of Louisiana, Department of Transportation and Development (DOTD). We vacate the judgment and remand for a new trial.

The DOTD expropriated the land in 1987 for the construction of the 1-310 interchange. DOTD deposited $45,386 in the Court registry as just compensation. The landowners answered, demanding additional compensation, severance and property damages.

IsThe case was tried by a jury in March of 2006. The jury returned a verdict awarding the landowners $91,672 ($600 per acre) for the land expropriated, but nothing for property or severance damages.

In April of 2006, the landowners filed a motion for Judgment Notwithstanding the Verdict (JNOV), or for New Trial. A hearing was held in June of 2006. In the hearing, three jurors testified about the conduct of the jurors during the trial. The trial judge subsequently denied both motions.

On appeal, the landowners first assert that the trial judge erred in denying the JNOV or New Trial where the jury prematurely deliberated the case before closing argument in the presence of the alternate juror, and where the jury expressed in a written question to the trial judge its belief that DOTD should pay the costs of repairing the weirs it installed as mitigation, yet failed to award any damages for the repair or replacement of the weirs. The landowners further assert that the jury was presented with inadmissible evidence of a hold harmless agreement, including a highly prejudicial reference by DOTD to an inapplicable provision. Third, the landowners contend that the trial judge erred in failing to award expert costs for the landowners’ experts, Coastal Environments, Inc., George Castille, and Hans Van Beek.

The landowners assert three instances of juror misconduct. They assert first that two of the jurors misled counsel in voir dire when they failed to acknowledge previous experiences with the court system. Secondly, they assert that the jury improperly deliberated the case prior to closing arguments while viewing demonstrative evidence that would not later be allowed in the jury room |4during deliberations, and that the pre-closing discussion improperly included the alternate juror. Third, the landowners assert that the jury was improperly prejudiced by outside information, including other jurors’ statements that the property’s degradation was caused by sources other than the actions of the DOTD.

The day before the trial ended and before closing arguments, the six jurors and the alternate were permitted to view the documentary evidence (maps, etc.) in a separate room. The bailiff was not present. The landowners contend that, despite instructions by the judge to refrain from talking about the case, or forming any opinions before being released to deliberate, the jurors not only discussed the case, but also expressed opinions regarding damages. The landowners further assert that it was improper for the bailiff to leave the jury alone while the jury viewed the maps. This error is based on statements made by the foreman, Russell Prima, to William Monteleone, Jr., and counsel, Randall Smith, one month after the trial.

Mr. Monteleone set up a meeting with Mr. Prima, the jury foreman, after the trial, but prior to the hearing on the new trial motion. According to Mr. Montel-eone, Mr. Prima told him the jury reviewed the exhibits, and interpreted the evidence that had been introduced. He said they noted whether the photographs showed water in the marsh, or whether it was dry. He asserted that the jurors discussed the amount of land loss, compared the documents, discussed what impact was occurring, and determined at that time that the loss resulted from natural causes, not saltwater intrusion. Mr. Monteleone also claimed that Mr. Prima, who worked for Shell Oil at one time, said he talked to another juror about how oil pollution affects the trees.

| BPuring the hearing for the new trial, Mr. Prima testified that the jurors examined the maps and compared them. He admitted they spoke of some things, but denied they talked about the case or formed premature opinions.

The landowners also contend that they were prejudiced when two jurors gave misleading answers during voir dire, preventing counsel from examining them about the prejudicial effect their prior litigation experience might have on their objectivity.

In answer to the question of whether anyone had served on a jury before, Theresa McDonald said she had been on a jury in a criminal case. She denied that she had been in a lawsuit. In the hearing on the New Trial motion, Ms. McDonald admitted she had been involved in an insurance suit for a house fire, and in a repossession action. Ms. McDonald thought the question in voir dire meant whether she was involved as a juror.

Thomas Roche, the alternate juror, denied being involved in other court proceedings, but at the new trial hearing admitted he had litigated a car accident suit, been a defendant in a promissory suit action, and filed a suit for marital separation. He said he had forgotten most of the details of those events, although he did remember his divorce battle.

The landowners also allege they were prejudiced when the DOTD counsel made improper references to a hold harmless agreement that the trial judge had previously ruled inadmissible.

Peremptory grounds for granting a new trial in a civil action exist if it is shown that “the jury was bribed or behaved improperly so that impartial justice has not been done.” La.C.C.P. article 1972(3). The trial court is granted wide discretion in deciding whether a new trial should be granted where allegations of | (jury misconduct are made. La.C.C.P. article 1973; Wright v. Hirsch, 560 So.2d 835, 836 (La.1990). Improper behavior by a juror or jury is not defined and must be determined by the facts and circumstances of each particular case. Karagiannopoulos v. State Farm Fire & Cas. Co., 94-1048, p. 12 (La.App. 5 Cir. 11/10/99), 752 So .2d 202, writ denied, 99-2866 (La.12/10/99), 752 So.2d 165, reconsideration denied, 99-2866 (La.2/11/00), 754 So.2d 926, writ denied, 99-3474 (La.2/11/00), 754 So.2d 940; Uriegas v. Gainsco, 94-1400, p. 13 (La.App. 3 Cir. 9/13/95), 663 So.2d 162, 170, writ denied, 95-2485 (La.12/15/95), 664 So.2d 458.

The party alleging jury misconduct must prove that the level of behavior was of such a grievous nature as to preclude the impartial administration of justice. Uriegas, at p. 14, 663 So.2d at 170; Perkins v. Allstate Ins. Co., 05-2676, p. 7 (La.App. 1 Cir. 11/3/06), 950 So.2d 850, 854. The applicable standard of review in such matter is whether the trial court abused its discretion. Lawson v. Mitsubishi Motor Sales of America, 05-0257, p. 29 (La.9/6/06), 938 So.2d 35, 55.

After reviewing the testimony, we find that landowners’ allegation of prejudice is supported by the evidence. Considering the foreman’s testimony and Mr. Monteleone’s statement, we conclude that the jury acted improperly by discussing the case, and expressing opinions on the damages, prior to its deliberations. These jurors should not have been left unsupervised and the presence and participation of the alternate juror aggravates the situation. Furthermore, such misconduct is of such a “grievous nature as to preclude the impartial administration of justice.” See: Uriegas, at p. 14, 663 So.2d at 170. Thus, we find the trial judge abused his discretion in denying the motion for new trial.

When an appellate court finds legal error in a judgment and the record is complete, it usually conducts an independent review and judgment is rendered on j7the merits. But, when the weight of the evidence is so nearly equal that a firsthand view of witnesses is essential to a fair resolution of the issues, the appellate court must decide whether it can fairly find a preponderance of the evidence from the cold record. In cases where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial. Jones v. Black, 95-2530 (La.6/28/96), 676 So.2d 1067; Certified Capital Corp. v. Reis, 2003-2525, pp. 4-5 (La.App. 1 Cir. 10/29/04), 897 So.2d 128, 131, writ denied, 2004-2876 (La.1/28/05), 893 So.2d 79; Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707, 708 (La.1980); Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163, 165 (1975).

The liability evidence in this case was presented primarily by expert testimony. Several witnesses testified to reasons unrelated to the construction of the highway for the land erosion problem, and the death of the cypress trees. The Plaintiff produced witnesses that conclude the opposite.

The issue of damages to wetlands is complex. The determination involves the sciences of geology, wetlands biology, wetlands restoration and management. In addition, our review of the evidence indicates that the weight of the expert evidence here is so nearly equal, that a firsthand view of witnesses is essential to a fair resolution of the issues. Therefore, a remand for a new trial is warranted. See: Jones, 95-2530, 676 So.2d at 1067.

Accordingly, the judgment of the trial court is hereby vacated. The case is remanded for a new trial. Each party is to pay their own costs for the appeal.

JUDGMENT VACATED; CASE REMANDED FOR NEW TRIAL.

      . The landowners are: William A. Montel-eone, Ruth A. Leman Monteleone, David Gib-bens Monteleone Trust, Anne Hathaway Mon-teleone Trust, Frank Caffery Monteleone Trust, Christina Carol Monteleone Trust, The J. Edgar Monroe Foundation, Michael W. Burgess, William A. Monteleone, Jr., Dr. George E. Burgess, III, George Burgess, Jr. Trust No. 2, and George Burgess, Jr., Trust No. 4 (collectively referred to as the landowners).

      . See: La.R.S. 48:441 et seq.

      . The 153 acres is part of a larger parcel of land, comprising over 14,000 acres.

      . The landowners asserted that the DOTD owed $222,332 for additional compensation for the land taken, and over $5,000,000 for damages to the remainder of the property.

      . A weir is a construction designed to prevent salt water from infiltrating the marsh.

      . In light of our finding, we pretermit the issues involving the hold harmless agreement or expert costs.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Trill Shamichael McKINNEY, Appellant.
    Nos. 43,060-KA, 43,061-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Edward K. Bauman, Lake Charles, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Edward C. Jacobs, Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   WILLIAMS, J.

k The defendant, Trill McKinney, was charged with first degree murder and possession of a firearm by a convicted felon. Pursuant to a plea bargain, the defendant pled guilty to amended charges of attempted second degree murder and felony theft; the state also agreed not to charge him as a multiple offender. For the attempted second degree murder conviction, the district court sentenced the defendant to serve 50 years at hard labor without benefit of parole, probation or suspension of sentence. For the felony theft conviction, the court sentenced the defendant to serve 10 years at hard labor, the sentence to run concurrently with the 50-year sentence. Defendant now appeals, asserting that his sentences are excessive. For the following reasons, we affirm.

FACTS

In December 2005, the defendant broke into the home of Betty Jean Sweet in Plain Dealing, Louisiana, with the intent to commit a theft. In the course of these actions, he stole her cell phone and shot her with a shotgun; she died as a result of her wounds. As noted above, defendant originally was charged with first degree murder and possession of a firearm by a convicted felon, but pled guilty to the reduced charges of attempted second degree murder and felony theft. He was sentenced to serve 50 years at hard labor without benefits and 10 years at hard labor, respectively, the sentences to run concurrently; the state also agreed not to charge him as a multiple offender.

At the sentencing hearing, the district court discussed the presentence investigation (“PSI”) report in detail with the defendant, | ¡.including the facts of the crime. The court noted that the report indicated the defendant told detectives that he went to Sweet’s home to rob her, that she panicked, and that he shot her with a shotgun. The court also noted that the report reflected the defendant had apologized to the family and that the defendant had written a letter to the court in which he also apologized to the community. The court went over the PSI information concerning the defendant’s criminal history which showed that the defendant, who was 32 years old, was a second felony offender. The court then adverted to the provisions of Article 894.1 of the Louisiana Code of Criminal Procedure and noted that the defendant was on probation at the time of the offense, that he was not eligible for a suspended sentence, and that he was in need of correctional treatment that could most effectively be provided by commitment to an institution.

The.district court concluded that a sentence less than the maximum of 50 years for the attempted second degree murder conviction would deprecate the seriousness of the offense, observing that the case could have been a death penalty case. The court also noted that the victim was particularly vulnerable, a theft occurred during the commission of the crime, a firearm was used and a death resulted.

DISCUSSION

By his sole assignment of error, the defendant contends his sentences are constitutionally excessive. In particular, he argues that the court failed to give adequate consideration to the fact that he had only an eighth-grade education; that his prior record includes convictions for carrying a ^prohibited weapon and disorderly conduct in 1997, a conviction for simple burglary of an inhabited dwelling in 1998, and another simple burglary of an inhabited dwelling in 1998; that the defendant stated he went to rob the victim’s home, she panicked, and he shot her; and that he expressed remorse and apologized to the family of the victim. Defendant asserts he is not the most egregious of offenders. He admits that he “committed a horrible crime,” but he asserts that he is in need of rehabilitation that can best be served in a non-custodial environment.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of LSA-C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital [¿status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Woods, 41,420 (La.App. 2d Cir.11/1/06), 942 So.2d 658; State v. Brisco, 33,179 (La.App. 2d Cir.4/5/00), 756 So.2d 644, writ denied, 2000-1478 (La.5/25/01), 792 So.2d. 749; State v. Grissom, 29,718 (La.App. 2d Cir.8/20/97), 700 So.2d 541. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Black, 28,100 (La.App. 2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

In the present case, the record shows that the trial court took cognizance of the criteria set forth in LSA-C. Cr. P. art. 894.1, and the record clearly shows an adequate factual basis for the sentence imposed. Furthermore, the imposition of the maximum sentences is in no way disproportionate to the severity of the offenses, nor shocks the sense of justice considering the great benefit this defendant received from his plea bargain. Not only did this second felony offender, who committed the crimes while on probation, get the benefit of concurrent sentences and no multiple offender bill, but more importantly, his sentencing exposure was reduced from a possible death sentence if he had been convicted of first degree murder as originally charged. Thus, the claim of constitutional excessiveness is meritless.

CONCLUSION

For the reasons set forth above, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


author: STEWART, J.

text:
    Nathaniel WALKER, Plaintiff-Respondent v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al., Defendants-Applicants.
    No. 42,913-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.
    Charles C. Foti, Jr., Attorney General, for Defendant-Applicant, State of LA, DOTD.

      Mary L. Doggett, Lewis 0. Lauve, Jr., Assistant Attorneys General, Robert L. Salim, Natchitoches, for Plaintiff-Respondent, Nathaniel Walker.
    Brittain & Sylvester, by Lala B. Sylvester, Natchitoches, for Plaintiff-Respondent, Allstate Ins. Co.
    Before STEWART, GASKINS and LOLLEY, JJ.
   STEWART, J.

I,The -State of Louisiana, through the Department of Transportation and Development (“DOTD”) appeals the trial court’s denial of its motion for summary judgment against Nathaniel Walker. For the reasons that follow, we reverse the trial court’s decision.

FACTS

Nathaniel Walker was a passenger in a vehicle being driven by Dannie Evans on June 16, 2000. As the vehicle was traveling on Louisiana Highway 71 in Winn Parish, a large oak tree fell on the vehicle, causing Walker to sustain permanent disabling injuries that resulted in quadriplegia.

On September 5, 2000, Walker filed suit against Dannie Evans, Allstate Insurance Company, and the State of Louisiana through DOTD. In his petition, Walker alleged that the oak tree that fell on the vehicle was on the highway right of way in violation of highway safety regulations, that DOTD had prior knowledge that the tree needed to be removed and that DOTD failed to inspect the right of way.

On February 5, 2007, DOTD filed a motion for summary judgment alleging that Walker will be unable to provide any facts in support of his allegation that DOTD “had prior knowledge that the tree needed to be removed.” In support of this motion, DOTD submitted the affidavit of Billy Ray Gorham, a DOTD maintenance superintendent who was alleged to have conducted an inspection of the area in question in the two weeks preceding the accident. DOTD also cited case law for the proposition that it owed no duty to motorists traveling on state highways to check all sides of trees which abut state roadways for damage.

ROn July 13, 2007, the trial court issued reasons for judgment denying DOTD’s motion for summary judgment. In its reasons the trial court summarized the circumstances as follows:

There is no genuine issue of material fact. A rottén tree in the state right of way fell across the roadway causing severe and permanent injury to plaintiff. Plaintiff has the burden of proof to prove actual or constructive notice of an unreasonable risk of harm, i.e. rotten tree. The tree which fell was rotten on the back side and its condition was not observable by an observation from the roadway looking on the right of way. It would only be observable from observation from the outside right of way line looking toward the roadway.

The trial court recognized this court’s holding in Caskey v. Merrick Const. Co., Inc., 41,662 (La.App. 2d Cir.1/24/07) 949 So.2d 560, at 563, that “[t]here is no duty requiring DOTD inspectors to walk around all sides of the tree and check it for damage, particularly when the tree is otherwise green and healthy.” However, the trial court then claimed a distinction existed between the present case and Caskey, supra, because the damage to the tree in the present case was a result of natural rot as opposed to. third-party operated construction equipment. The trial court stated that this distinction creates a greater duty on the part of DOTD and denied summary judgment on that basis.

DOTD subsequently filed an application for a supervisory writ on August 24, 2007, seeking a reversal and ruling in favor of DOTD granting DOTD’s motion for summary judgment and dismissing DOTD from Walker’s claims with prejudice. DOTD’s writ application was granted and docketed for oral arguments on September 27, 2007.

I,¿DISCUSSION

Appellate courts review summary judgments de novo using the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App. 2d Cir.1/25/06), 920 So.2d 355.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

L4In order to reverse the trial court’s decision, this court would have to find on de novo review that the record reveals no genuine issue of fact which precludes summary judgment as a matter of law.

To recover damages from DOTD, Walker must prove that (1) the public entity had ownership or control of the thing which caused damage; (2) the thing was defective in that it created an unreasonable risk of harm; (3) the public entity had actual or constructive knowledge of the defect and failed to take remedial procedures within a reasonable amount of time; and (4) causation. Sudduth v. State, Department of Transportation & Development, 619 So.2d 618 (La.App. 3 Cir.) writ denied, 629 So.2d 349 (La.1993); Valet v. City of Hammond, 577 So.2d 155 (La.App. 1 Cir.1991); La. R.S. 9:2800.

The issues of whether DOTD had control over the rotten oak tree, whether the rotten oak tree was defective, or whether the rotten oak tree caused Walker’s quadriplegia are not contested. Instead, the primary issue is whether DOTD had actual or constructive knowledge of the rotten oak tree. Proof of either actual or constructive knowledge is an essential element of Walker’s claim. If Walker fails to produce any evidence in support of this element, a summary judgment is mandated.

In the present case, the trial court denied the motion for summary judgment after stating that there was no genuine issue of material fact that the tree that fell was rotten on the backside and its condition was not observable from the roadway. Attempting to distinguish the case from the jurisprudence suggesting that DOTD had not breached any duty in failing to | ¡^discover the defect, the court focused on the fact that the defect in the present case was the result of natural rot as opposed to third-party damage. In discussing its rationale, the trial court imposed a duty on the part of the DOTD to inspect the back side of trees for rot rather than knowingly opt not to do so on the basis that the risk of such localized rot is minimal.

The condition that caused the oak tree in question to fall was on the back side of the tree out of sight of DOTD. There is no genuine issue as to the location of the rotten area in question, or whether the rotten area in question was observable from the roadway. Additionally, the photographs taken at the accident scene reveal that the oak tree was otherwise healthy, containing a full canopy of green leaves.

The state’s duty to protect against the risk of a tree falling onto a highway or striking a passing vehicle was described in Thompson v. State, 97-0293 (La.10/31/97), 701 So.2d 952, as a duty to inspect “for dead trees and remove them within a reasonable time. The state is not required to inspect for all trees which could fall on the road and remove them simply because they have the potential to fall onto the road.”

Expanding upon that holding, this court in Caskey, supra, held that “there is no duty requiring DOTD inspectors to walk around all sides of the tree and check it for damage, particularly when the tree is otherwise green and healthy.” In Caskey, the plaintiff was injured when a tree damaged by construction work fell across the roadway.

Despite these clear statements of law regarding the State’s duty to inspect, the trial court in this matter imposed a more burdensome duty. This ^constitutes legal error. Jurisprudence has clearly established that there is no duty on the part of the DOTD to inspect all sides of a tree in search of defects which are not observable from the roadway. The trial court’s incorrect determination that a duty exists when the defect results from natural causes as opposed to artificial causes is a contradiction of the law on this issue.

CONCLUSION

Based on the above reasons, we reverse the trial court’s denial of DOTD’s motion for summary judgment. Summary judgment is granted in favor of DOTD, dismissing Walker’s claims against it. Costs assessed to Nathaniel Walker.

REVERSED.


author: GREMILLION, Judge.

text:
    Karen FRANCOIS v. ACADIANA SECURITY PLUS, INC., et al.
    No. 2007-1112.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 13, 2008.

      L. Clayton Burgess, Lauren K. Ledet, Lafayette, LA, for Plaintiff/Appellant, Karen Francois.
    Stephen J. Oats, Patrick B. Mclntire, George O. Luce, Oats & Hudson, Lafayette, LA, for Defendant/Appellee, Acadia-na Security Plus, Inc.
    Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   GREMILLION, Judge.

l iThe plaintiff, Karen Francois, appeals the trial court’s grant of summary judgment in favor of the defendant, Acadiana Security Plus, Inc., dismissing with prejudice her claims of racial discrimination based on a hostile work environment and constructive discharge. We affirm.

FACTS

Francois, who is African-American, worked part-time, one day a week, as a dispatcher for Acadiana Security. On January 16, 2005, two pages of racially offensive jokes aimed at African-Americans were left on the dispatcher desk which she used. Acadiana Security has a written policy against racial discrimination. Francois complained about the jokes to her supervisors, Paul Courts and Tim Beg-naud, and to owner, Larry Comeaux. The identity of the employee responsible for the jokes was determined, and that employee later apologized to Francois.

On January 13, 2006, Francois filed suit against Acadiana Security seeking damages for racial discrimination/harassment and intentional/negligent infliction of emotional distress. In her petition, she relied on not only the racially-oriented jokes, but also statements made by Begnaud in which he stated, “Hey my n-.” As of that date, Francois was still employed by Aca-diana Security. She resigned in March 2006, after she was contacted by Courts about dropping her lawsuit.

In response to her suit, Acadiana Security filed an answer and a motion for summary judgment arguing that Francois would be unable to prove essential elements of her claims for racial discrimination based on a hostile workplace, | ¡¡.constructive discharge, and intentional/negligent infliction of emotional distress. Following a hearing, the trial court granted summary judgment in favor of Acadia-na Security and dismissed Francois’ claims with prejudice. This appeal by Francois followed.

ISSUES

On appeal, Francois argues that the trial court erred in granting summary judgment in favor of Acadiana Security and dismissing her claims for racial discrimination based on hostile work environment and constructive discharge. She does not appeal the trial court’s ruling with regard to her claims for intentional/negligent infliction of emotional distress.

SUMMARY JUDGMENT

The standard of review in summary judgment cases is well settled. La.Code Civ.P. art. 966. Pursuant to Article 966(C)(2), if the mover will not bear the burden of proof at trial, then he is only required to “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Upon this showing, the burden then shifts to the adverse party to produce evidence establishing “that he will be able to satisfy his evidentiary burden of proof at trial.” Id. The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-0050 (La.3/13/98), 712 So.2d 882.

RACIAL DISCRIMINATION

In her two assignments of error, Francois argues that the trial court erred |sm finding that she would be unable to prove essential elements in her racial discrimination claims based on hostile work environment and constructive discharge.

In addition to the two pages consisting of eighteen racial jokes, Francois complains about statements made by Begnaud and another employee. Begnaud’s statement, “Hey my n-,” was directed to Melanie Citizen, another African-American employee of Acadiana Security. Citizen related the statement to Francois after Francois complained about the racial jokes left on her desk. The other alleged racially discriminatory comment was made by Thelma, another co-worker, to Begnaud in Francois’ presence. Thelma stated that she passed a Shone/s Restaurant that morning and noted that there were a hundred black people and two cop cars present. Francois stated that she thought Thelma made the comment in order to show her support for Acadiana Security.

Louisiana Revised Statutes 23:332(A) provides that it shall be unlawful for an employer to:

(1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin.
(2) Intentionally limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee, because of the individual’s race, color, religion, sex, or national origin.

As this statute is similar to Title VII of the Civil Rights Act of 1964, Louisiana courts have availed themselves of decisions found in federal jurisprudence when interpreting claims pursuant to Section 332. Hicks v. Cent. La. Elec. Co., Inc., 97-1232 (La.App. 1 Cir. 5/15/98), 712 So.2d 656. This includes cases dealing with sexual harassment, which are reviewed under the same standard as those pertaining to racial harassment. Chaney v. Home Depot, USA, Inc., 05-1484 (La.App. 4 Cir. 8/16/06), 940 So.2d 18, writ denied, 06-2286 (La.11/22/06), 942 So.2d 559.

In order to prevail on her hostile work environment claim, Francois must prove five elements: 1) she belonged to a protected group; 2) that she was subjected to harassment; 3) that the harassment was motivated by discriminatory animus (race); 4) that the harassment affected a term, condition, or privilege of employment; and 5) that the employer knew or should have known of the harassment and failed to take proper remedial action. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337 (5th Cir.2007); Chaney, 940 So.2d 18. “A hostile work environment is one that does not affect an employee’s economic benefits, but instead creates a hostile or offensive working environment.” Hicks, 712 So.2d at 658.

In Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 2283-84, 141 L.Ed.2d 662 (1998) (citations omitted), the Supreme Court explained:

[I]n order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. We directed courts to determine whether an environment is sufficiently hostile or abusive by “looking at all the circumstances,” including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Most recently, we explained that Title VII does not prohibit “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” A recurring point in these opinions is that “simple teasing,” offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the “terms and conditions of employment.”
| ¡¿These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a “general civility code.” Properly applied, they ■will filter out complaints attacking “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment and the Courts of Appeals have heeded this view.

In order to prevail on her constructive discharge claim, Francois must also prove that the working conditions were so intolerable that a reasonable person would have felt compelled to resign. Penn. State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).

While we do not condone what occurred in this instance, we find the conduct of which Francois complains insufficient to constitute a hostile work environment. Although she argues that she found the list of racially-oriented jokes and the statement by her co-worker offensive, we find that these alone are insufficient to be considered objectively offensive. Mindful of the analysis laid out by the Supreme Court, we find that these isolated incidents in the approximate six years that she worked for Acadiana Security insufficiently severe, physically threatening, or humiliating enough to unreasonably interfere with an employee’s work performance such that it alters the terms and conditions of her employment. We find this especially true as Francois continued in her employment for approximately fourteen months after she found the jokes. We further find that the statement, “Hey, my n-” does not constitute racially discriminatory conduct toward Francois as it was neither directed at her nor was she present when it was uttered.

Francois’ failure to prove that she was subjected to a hostile work environment further necessitates a finding that she has failed to satisfy her burden of 1 (¡proof in her claim of constructive discharge as a finding of a hostile work environment is a precursor to such a finding. Accordingly, the judgment of the trial court is affirmed on both accounts.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the plaintiff-appellant, Karen Francois.

AFFIRMED.


author: SAUNDERS, Judge.

text:
    Roy PETERS, et al. v. AMERICAN ALTERNATIVE INSURANCE CO., et al.
    No. CA 07-972.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 13, 2008.

      Michael Thomas Johnson, Donna M. Johnson, Johnson & Siebeneicher, Alexandria, LA, for Defendants/Appellants, Rap-ides Parish School Board, American Alternative Insurance Co.
    Thomas D. Davenport, Jr., The Davenport Firm, Alexandria, LA, for Plaintiffs/Appellees, Jasmine Williams, Roy Peters, Jamaka Williams, Jaterries Williams, Jalen Peters.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

_LjThis is an automobile accident case. The accident took place between a vehicle allegedly stopped at an intersection and a school bus making a left turn from the intersecting lane onto the street occupied by the first vehicle. There were no witnesses to the accident other than the driver and occupants in the first vehicle and the school bus driver. Both vehicles were moved prior to the investigating officer’s arrival.

The plaintiffs were granted a Partial Summary Judgment on the issue of liability. The defendant insurance company appealed alleging, inter alia, that the trial court erred in stating that liability had been stipulated to by the parties and erred in granting the plaintiffs’ Motion for Partial Summary Judgment because there were genuine issues of material fact in relation to liability.

We find that it is clear from the record that the parties did not stipulate to liability. We also reverse the trial court’s ruling that granted the plaintiffs’ Motion for Partial Summary Judgment on the issue of liability and remand the case for further proceedings not inconsistent with this opinion. All other assignments raised by the defendant insurance company are pre-termitted.

FACTS AND PROCEDURAL HISTORY:

On November 3, 2004, Sylvester Dotson (hereinafter “Dotson”), a school bus driver employed by the Rapides Parish School Board, was in an automobile accident with a vehicle driven by Mrs. Jamaka Williams (hereinafter- “Williams”). Dotson’s school bus was insured by American Alternative Insurance Company (hereinafter “American Alternative”). Dotson was attempting to make a left turn from Lee Street onto Felker Street. The Williams vehicle was located at or near a stop sign on Felker Street facing the opposite direction that Dotson’s bus would have been traveling, had he made a left turn.

| ¡Williams, Roy Peters, the owner of the vehicle driven by Williams, and the occupants of the Williams driven vehicle, Jat-teries Williams, Jasmine Williams, and Jalen Peters (hereinafter collectively “the plaintiffs”), claimed that as Dotson was making the left turn onto Felker Street, he crossed the center of the street and impacted the plaintiffs’ vehicle. Dotson and American Alternative contend that Dotson properly executed his left turn and at all times remained to the right of the center of Felker Street. At the time of the accident, Felker Street had no painted center line.

Prior to trial, plaintiffs filed a Motion for Partial Summary Judgment on the issue of liability. At the initial hearing on April 2, 2007, plaintiffs introduced as evidence American Alternative and Dotson’s discovery responses. These responses included photographs and information from the adjuster who went to the scene of the accident, Stephen Evans. To counter this evidence, American Alternative submitted an affidavit signed by Dotson wherein he stated, in essence, that he did nothing to cause the accident. At that time, the trial court indicated that additional information was needed in order to fully adjudicate the motion. The trial court continued the hearing and directed the plaintiffs to take the deposition of the adjuster that took the pictures contained in American Alternative and Dotson’s discovery responses.

On May 7, 2007, at the second hearing on plaintiffs’ motion, the depositions of the adjuster, Evans, and the officer who investigated the accident, Officer Len Hall, were introduced as evidence by the plaintiffs. The trial court then granted the Motion for Partial Summary Judgment. American Alternative suspensively appealed this ruling.

While American Alternative’s appeal was pending, a trial on the damages was | sheld on May 22, 2007. During oral reasons for judgment rendered on the day of trial, the court noted that liability was stipulated to by the parties. The trial resulted in a judgment awarding the plaintiffs, in addition to legal interest from the date of judgment and costs associated with the proceedings, the following amounts for general and special damages:

Jamaka Williams, general damages of $45,000.00 and special damages of $8,902.13;
Jatteries Williams, general damages of $8,500.00 and special damages of $1,060.00;
Jasmine Williams, general damages of $4,500.00 and special damages of $458.00;
Jalen Peters, general damages of $6,500.00 and special damages of $570.00; and
Roy Peters, automobile repairs and rental $2,500.00.

American Alternative appealed, alleging that the trial court’s statement regarding stipulation to damages was incorrect. It also appealed the damages awarded in the judgment reached after the damages trial. American Alternative’s appeal of the Partial Summary Judgment and its appeal of the damages awarded in judgment after trial were combined into one appeal before this court. In that combined appeal, American Alternative alleges five assignments of error.

In its first assignment of error, American Alternative alleges that the trial court erred in stating that stipulation was made by the parties regarding liability. In its second assignment of error American Alternative alleges that the trial court erred in granting the Motion for Partial Summary Judgment on the issue of liability as it alleges that genuine issues of material fact exist that would make such a judgment improper.

ASSIGNMENTS OF ERROR:

1. Did the trial court err in finding that the parties stipulated to liability?

|42. Did the trial court err in granting the Motion for Partial Summary Judgment on the issue of liability as genuine issues of material fact existed?

3. Did the trial court err in continuing the Motion for Summary Judgment heard on April 2, 2007, and requesting additional evidence regarding the summary judgment?

4. Did the trial court err in awarding excessive general damages to the plaintiffs?

5. Did the trial court err in awarding damages to plaintiff, Roy Peters, as the damages awarded related to property damage which were predicated on the finding of liability against the defendants/ appellants?

ASSIGNMENT OF ERROR # 1:

American Alternative contends that the trial court erred in finding that the parties stipulated to liability. We agree.

In the trial court’s oral reasons for judgment rendered on the day of the damages trial on May 22, 2007, the court noted that liability was stipulated to by the parties. This statement is not supported by the record. Liability was determined by the court on summary judgment by oral ruling on May 7, 2007. A written judgment was signed by the court on May 11, 2007, and a suspensive appeal was filed by American Alternative alleging that ruling was improper. The stipulation entered into by the parties regarding liability was that Dotson was in the course and scope of his employment with the Rapides Parish School Board at the time of the accident, not that Dotson was in any way liable for the accident.

While this is likely a misstatement made by the court, we note that the record is clear that the parties did not stipulate liability in the case at bar. Moreover, the trial court had already ruled on liability in the Motion for Partial Summary Judgment filed by the plaintiffs and that ruling had been properly appealed. Therefore, at the time of the judgment on the trial regarding damages, the issue of liability for the occurrence of the accident was no longer before the trial court and was within the purview of this | ^appellate court. As such, any such misstatement regarding liability was irrelevant.

ASSIGNMENT OF ERROR # 2:

American Alternative contends that the trial court erred in granting the plaintiffs’ Motion for Partial Summary Judgment on the issue of liability as there were genuine issues of material fact that still existed. We agree.

In Palma, Inc., v. Crane Servs. Inc., 03-614, p. 3 (La.App. 3 Cir. 11/5/03), 858 So.2d 772, 774 quoting Shelton v. Standard 700/Associates, 01-587, p. 5 (La.10/16/01), 798 So.2d 60, 64-65, this court stated the following regarding how appellate courts are to conduct a de novo review of rulings on motions for summary judgment:

It is well established that a summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.

Article 966 was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La. Code Civ.P. art. 966(A)(2).

In 1997, the legislature enacted La.Code Civ.P. art 966(C)(2) which further clarified the burden of proof in summary judgment proceedings as follows:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

_J£‘Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted.” Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La.4/11/94), 634 So.2d 1180, 1183.

The Louisiana Supreme Court in Hutchinson v. Knights of Columbus, No. 574.7, 03-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234, stated the following:

A trial judge cannot make credibility determinations on a motion for summary judgment. A party seeking a summary judgment is entitled to a favorable judgment only if “there is no genuine issue as to a material fact” and, thus, the “mover is entitled to judgment as a matter of law.” The credibility of a witness is a question of fact. In deciding a motion for summary judgment, the court must assume that all of the affi-ants are credible. The sworn affidavits of the plaintiff and her husband cannot be evaluated to determine whether they are credible at the motion for summary judgment stage.
(Emphasis added.) (Citations omitted.)

In the case before us, American Alternative claims that there is conflicting evidence of which driver was at fault for the accident. As such, it argues that reasonable minds could differ as to what allocation of fault should be made to each driver in the accident and; therefore, summary judgment on liability should be precluded.

The plaintiffs submitted the depositions of Stephen Evans and Officer Len Hall to support their position that Sylvester Dotson was solely at fault for the accident. Stephen Evans was an adjuster for Crawford and Company who adjusted the claim submitted by the plaintiffs. Crawford and Company was the third party adjuster for American Alternative at the time of the accident. Evans took pictures of the vehicles after the accident. In those pictures, the vehicle driven by Williams seemed to be in her lane of travel, although the center line on Felker Street was not painted. [^Moreover, the school bus driven by Dotson was depicted in those pictures as stopped in what seemed to be Williams’ lane of travel. Further, while working the accident, Evans drew a diagram of the accident scene and in that diagram, the school bus was over the center line, had there been one painted, of Felker Street. While the pictures that Evans took and the diagram he drew seem to support the plaintiffs’ position, in his deposition, the following exchange took place between Evans and counsel for American Alternative:

Q The photographs that you testified from today,—
A Yeah.
Q —those were taken when you arrived upon the scene?
A Correct.
Q And you have no personal knowledge of where the vehicles were or had been before you arrived upon the scene?
A No, I do not.
Q Okay. And you have no personal knowledge of the movement of those vehicles prior to your arrival on the scene?
A No, I have no — no information as to what happened to the vehicles prior to my arrival.

Officer Len Hall, the investigating officer of the accident, prepared a police report in conjunction with the accident and in that report the diagram of the accident indicated that the school bus driven by Dotson crossed the center line and struck the vehicle driven by Williams. Again, while Officer Hall’s diagram seems to support the plaintiffs’ position, in his deposition, Officer Hall indicated that both vehicles were moved prior to his arrival on the accident scene as his police report narrative stated, “Note: Unable to determine fault of drivers due to vehicles being moved and no witnesses.” Further, Officer Hall did not issue any citations in the accident to either Williams or Dotson.

American Alternative submitted the affidavit of Sylvester Dotson that | Rcontained, in pertinent part, the following:

7.
At all times, while making the left turn, he [Dotson] maneuvered the bus to the right of the center of Felker Street.
8.
He did not enter the oncoming lane of travel on Felker Street in executing the left turn.
9.
From his observance, Ms. Williams’ vehicle, which was on Felker Street, was over the center line (which was unmarked) and into the oncoming lane of traffic.
10.
Mr. Dotson attempted to move as far to the right as possible to avoid Ms. Williams’ vehicle, but Ms. Williams’ vehicle struck the bus.
11.
From his own personal knowledge, information and belief, Mr. Dotson did not violate any state statutes or city ordinances in the manner in which he make his left turn.

We find that this conflicting evidence in the record clearly indicates that a genuine issue of material fact exists on the issue of liability. If we are to find Dotson credible, as we are directed in Hutchinson, 866 So.2d 228, then we cannot say that “reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law.” Reynolds, 634 So.2d 1183. Moreover, while the depositions cited by the plaintiffs do serve them in their theory that Williams was completely free from fault, nevertheless, there are statements contained in those depositions that make the issue of liability contestable. Accordingly, we reverse the trial court’s judgment granting the plaintiffs’ Partial Motion for Summary Judgment on the issue of liability and remand the case for further proceedings not inconsistent with this opinion.

The remaining assignments of error raised by American Alternative are preter-mitted.

CONCLUSION:

|flWe find that the trial court incorrectly stated that liability had been stipulated to by the parties and also that the trial court improperly granted the plaintiffs’ Partial Motion for Summary Judgment based upon liability. As such, we reverse the trial court’s judgment and remand the case for further proceedings not inconsistent with this opinion. All costs associated with this appeal are to be paid by the plaintiffs.

REVERSED AND REMANDED.


author: THOMAS F. DALEY, Judge.

text:
    Byron THOMAS and Stacy Watler v. Sharon LABICHE and State Farm Mutual Automobile Insurance Company.
    No. 07-CA-719.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 19, 2008.
    Rehearing Denied March 26, 2008.
    Rodney Kelp Littlefield, New Orleans, LA, for Plaintiff/Appellant.
    David V. Batt, James J. Young, IV, Lob-man, Carnahan, Batt, Angelle & Nader, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

| ¡¿Plaintiffs, Byron Thomas and Stacy Watler, appeal the trial court’s judgment dismissing defendant, Sharon Labiche, with prejudice. They argue that the trial court’s judgment, rendered as a result of plaintiffs’ Motion to Dismiss Without Prejudice under La. C.C.P. art. 1672(C), should have been without prejudice.

The record reveals that an auto accident occurred on or about July 7, 2003, wherein plaintiffs alleged that defendant, Labiche, who was insured by defendant, State Farm Mutual Automobile Insurance Company (State Farm), rear ended them with her vehicle, causing them various personal injuries and damages. They filed suit on February 20, 2004 against Labiche and State Farm. However, Labiche was never served; the address provided by plaintiffs was incorrect. The record fails to show any further attempts at service on La-biche. On March 10, 2004, defendants, State Farm and Labiche, filed an Exception of Insufficiency of Citation, Insufficiency of Service of Process, arguing that the exceptors had not been served in accordance with the Louisiana Code of Civil Procedure in that service had not been personal or domiciliary. The record does not show that this Exception was Lever served upon plaintiffs or set for hearing; no judgment was rendered upon it. State Farm, however, answered the Petition for Damages.

The matter went to trial on May 16, 2006. After plaintiff rested, State Farm introduced a “note of evidence” wherein it represented that its insured, defendant Labiche, had never been served; hence, State Farm moved for dismissal of the case against it pursuant to the Louisiana Direct Action statute, LSA-R.S. 22:655(B)(1). State Farm argued that plaintiffs had not, and could not, sustain their burden of proof under that statute to show good cause why they had failed to serve Labiche. The trial court took the matter under advisement, and on June 28, 2006, rendered judgment in favor of State Farm, dismissing plaintiffs’ suit against it without prejudice.

State Farm filed a Motion for New Trial, arguing that the dismissal should have been with prejudice under LSA-C.C.P. art. 1672(B), since the plaintiffs had put on their entire case and had rested. After opposition and a hearing, the trial court agreed, granting State Farm’s Motion for New Trial and rendering judgment dismissing them from the suit with prejudice on October 31, 2006. Plaintiffs appealed this judgment; however, the appeal was dismissed on grounds of abandonment on March 19, 2007.

Meanwhile, on December 7, 2006, plaintiffs filed a Motion for Dismissal of Sharon Labiche without prejudice under LSA-C.C.P. art. 1672(C), arguing that such dismissal should be made because proper service had not been requested for Labiche under LSA-C.C.P. art. 1201(C). Labiche filed an Opposition to the Motion, arguing that such dismissal should be with prejudice, arguing that even though LSA-C.C.P. art. 1672(C) is silent as to when in the proceedings it should be filed, this section could not apply to allow a “without prejudice” dismissal post-trial. Labiche argued that a post-trial dismissal without prejudice would allow the Lplaintiffs to file another suit alleging the same facts, and have another trial on the merits on the same issues. Additionally, Labiche urged an Exception of Prescription, arguing that since plaintiffs’ suit against State Farm had concluded with State Farm being dismissed with prejudice after trial on the merits without plaintiffs ever serving her (i.e. the failure to prosecute the suit against her, as per LSA-C.C. art. 3464), prescription was not interrupted against her by the filing of the instant lawsuit on February 20, 2004.

Following hearings on both the Motion to Dismiss and the Exception of Prescription, the trial court rendered judgment on April 23, 2007, denying the Motion to Dismiss without prejudice and instead dismissing Labiche with prejudice. Further, defendant’s Exception of Prescription was found moot. Plaintiffs have appealed.

On appeal, plaintiffs argue that the language of LSA-C.C.P. art. 672(C) is clear that such a dismissal must be without prejudice, and therefore the trial court clearly erred in rendering the dismissal with prejudice. Defendant argues that LSA-C.C.P. art. 1672(C) clearly applies to a motion filed pre-trial, and moreover, that the legislature could not have intended that article to allow a plaintiff to re-file suit against defendants so situated and get to try their case a second time.

At the time suit was filed, LSA-C.C.P. art. 1672(C) stated:

C. A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court’s own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time. (Emphasis added)

Paragraph C is silent regarding a time frame for the filing of a motion under that section. Plaintiffs rely upon Filson v. Windsor Court Hotel, 04-2893 (La.6/29/05), 907 So.2d 723.

1 Jn Filson, the Supreme Court granted writs to decide whether the filing of an answer and discovery requests by a defendant upon whom service was not requested within 90 days of the commencement of the action as required by LSAC.C.P. art. 1201(C) constituted a waiver of that requirement. The Supreme Court held that it did not. In that case, the defendant was actually served, though service was not requested within the 90 days required by LSA-C.C.P. art. 1201(C). Both parties argue the application of this case to determine whether a LSA-C.C.P. 1672(C) motion may be made before or after trial.

In Barnett v. Louisiana State University Medical Center-Shreveport, 02-2576, p. 2 (La.02/0703), 841 So.2d 725, 726 the Louisiana Supreme Court addressed the applicability of LSA-C.C.P. art. 1672 when service was requested on the wrong agent for service of process. The Supreme Court ruled that:

The requirement that service upon defendant be requested within the 90-day period should reasonably be read to require an accurate request of service upon the proper agent for defendant.

This Court has also addressed the applicability of LSA-C.C.P. art. 1672 when service was requested, but not completed. In Yates v. State Farm Mutual Automobile Insurance Company, 04-1028 (La App. 5 Cir. 1/25/05), 894 So.2d 1157, this Court found that a request for service within 90 days met the requirements of LSA-C.C.P. art 1672(C) and therefore, the trial court erred in granting defendant’s Motion for Involuntary Dismissal. In that case, the plaintiffs filed their petition via fax, and in submitting the filing fee within the mandatory five (5) days after the fax filing, omitted to pay the service fees. This Court found that the filing of the fax petition and the paying of court costs were sufficient to interfere with the tolling of prescription and that absent clear statutory language requiring the filing of a service fee, the court gave full force and effect to the interruption of prescription by the fax filing.

| Jn this case we do not have to determine whether or not requesting service on a bad address tolls the prescriptive period because the Exception of Prescription was not ruled upon by the Court. However, the language of LSA-C.C.P. art. 1672(C) provides that any dismissal pursuant to that provision will be “without prejudice.” We, therefore, find that the trial court erred.in granting the dismissal with prejudice pursuant to LSA-C.C.P. art. 1672.

Accordingly, we reverse the trial court’s judgment of April 23, 2007, and remand for further proceedings.

REVERSED AND REMANDED.

      . We are not called upon and make no ruling regarding the effect, if any, of the plaintiffs failure to timely serve the defendant, Sharon Labiche, prior to trial and its effect, if any, on LSA-C.C. 3463's application for failure to prosecute suit at trial since plaintiffs Motion to Dismiss was based solely on LSA-C.C.P. art. 1672.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Kimberly M. SCALLION.
    No. 07-966.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 20, 2008.

      Van Hardin Kyzar, District Attorney, Natchitoches, LA, for Appellee: State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant-Appellant: Kimberly M. Scallion.
    Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

L1On or about August 3, 2005, at approximately 3:30 p.m., Charles Donald Turnage, III, a state trooper assigned to Troop E in Alexandria, was advised by his supervisor, Sergeant J.D. Aliphant, that their office had been contacted by a narcotics officer with Louisiana State Police Troop G in Shreveport. According to the Shreveport officers, Kevin Bounds had been stopped for a traffic violation in Homer, Louisiana. Mr. Bounds had in his possession sixty Sudafed tablets and other precursors used to cook methamphetamine. According to Mr. Bounds, he was supposed to deliver these items to Eddie Wayne Scallion and in return he would receive the finished product (methamphetamine) as payment. Mr. Bounds told the troopers he had prior transactions with Kenneth Scallion and had been present when Kenneth Scallion was cooking methamphetamine. Trooper Turnage was advised that Mr. Bounds was willing to cooperate in making a controlled delivery of these items to the Scallion residence.

The agents from Troop E, including Trooper Turnage and Sgt. Aliphant, met with the agents from Troop G and Mr. Bounds in DeSoto Parish, Louisiana. It was decided that Mr. Bounds and Trooper Jason Parker, acting in an undercover capacity, would make a controlled delivery of the Sudafed and precursors to the Scallion residence. Trooper Parker was wired with an audio listening device such that the other officers could hear what was being said. Mr. Bounds was not wired with an audio listening device. The group traveled from DeSoto Parish to the staging area, a church parking lot a few miles from the Scallion residence. Mr. Bounds attempted to contact Eddie Wayne Scallion by telephone but was unsuccessful. Although Mr. Bounds was told that Eddie Wayne Scallion was not home, he told the officers that phe in fact believed Mr. Scallion was home because he was expecting Mr. Bounds, and in the past he had been told Mr. Scallion wasn’t home when in fact he was.

Mr. Bounds and Trooper Parker proceeded to the Scallion residence in Mr. Bounds’ vehicle. Mr. Bounds went into the Scallion residence. Trooper Parker never entered the residence. The two subsequently met up with Trooper Tur-nage at the church. According to Mr. Bounds, delivery of the Sudafed was made to Eddie Wayne Scallion. Although he was supposed to have delivered two precursors, for reasons that are unexplained in the record, the precursors were left in the vehicle and never delivered by Mr. Bounds to the residence. According to Mr. Bounds, he was told to come back in a few hours to pick up the finished product as payment for the Sudafed tablets. Because Trooper Parker, who was wearing the wire, did not go into the residence, there is no corroborating evidence of this conversation. Mr. Bounds also told the officers that while he was in the residence he observed what he believed to be pill wash in Mason jars in one of the bedrooms. Pill wash was described as a white substance created by adding certain chemicals to Sudafed to break down the Su-dafed and prepare it for the cooking process.

A discussion was held between the troopers at the staging area. Trooper Turnage testified at the suppression hearing that this group included Trooper Tur-nage, Sgt. Aliphant, Trooper Jay Perry, Officer Greg Dunn of the Natchitoches Parish Drug Task Force, and several other agents. According to Trooper Turnage, Trooper Perry was of the opinion that if there was already pill wash at the Scallion residence, it would not be long before a hazardous situation existed in the cooking process. Ultimately it was decided that rather than risk entering the residence in the middle of a “cook,” they would conduct a ‘knock and talk’ and interrupt the cooking process. Trooper Turnage testified that Officer Dunn contacted the Natehi-toches |sParish Sheriffs Office and asked for a marked unit to accompany Trooper Turnage to the residence.

Officer Dunn testified at the suppression hearing. According to Officer Dunn, he was contacted by Sgt. Aliphant and asked to assist in this investigation. He and another officer met the troopers at the church where they were staging at the intersection of La.Hwy. 9 and La.Hwy. 2153. He testified that it took approximately fifteen to eighteen minutes to drive from Natchitoches to that location. According to Officer Dunn, they were notified upon arriving at the church that they were going to the Scallion residence. Officer Dunn testified that the decision to go to the house had been made before he arrived at the scene. He testified that:

by the time we got our vests and stuff thrown on, they said let’s ride. We jumped in the vehicle. As we was driving down the road they said they were going to this house, we’ll take the back door. They had already assigned the people to the front. Everybody had been assigned their jobs. Myself and Sergeant Henson were the last two people to arrive. And everything moved quickly.

This clearly contradicts Trooper Turnage’s testimony that Officer Dunn was in the area when the controlled delivery was made and that Officer Dunn was present when a ‘plan of action’ was discussed.

Trooper Turnage testified that he, along with other officers, approached the house to do the ‘knock and talk’ at approximately 11:40 p.m. They knocked on the door, announced they were the police, and could see two silhouettes through the door. The texture of the glass in the door prevented him from determining who the people were or what they were doing. He testified that instead of coming to the door, however, they started moving back and forth through the house quickly, in what he described as a ‘panic type’ movement. Trooper Turnage further testified that, as he was unsure of what was going on in the house, whether the individuals were arming Rthemselves or destroying evidence, he and the other officers forced entry into the house at that time.

Four individuals were in the home and were identified as Eddie Wayne Scallion, Todd Smith, Edward Marion Scallion, and the defendant herein, Kimberly Scallion. The officers entered each and every room in the house, secured the above named individuals, handcuffed them, and brought them all into the living room and sat them on the couch and the chair.

After entering the Scallion residence, the officers saw, in the process of securing the premises, several Mason jars containing a white substance mixed with a liquid substance, several open bottles of Heet, several open bottles of hydrogen peroxide, used coffee filters with a white substance on them, and an open bottle of Red Devil lye. All these substances, according to Trooper Turnage, are used in manufacturing methamphetamine.

Trooper Turnage testified that, subsequently, he, Sgt. Aliphant, Officer Dunn, and Richard Horton typed up a search warrant on his laptop computer and called the judge. Specifically, although Trooper Turnage signed as affiant on the affidavit ultimately filed in the record, Officer Dunn called the judge. This phone call took place at approximately 11:50 p.m.

Officer Dunn testified that he was approached by Trooper Turnage and asked if he knew how to get in touch with any one of the judges. He responded affirmatively and called the judge at her residence. Officer Dunn testified that he was not with Trooper Turnage when he sat down and wrote or typed up the affidavit. He never actually saw the affidavit until a day or so after the search. Officer Dunn stated that Trooper Turnage relayed information to him, and he relayed it to the judge over the telephone. Officer Dunn specifically testified that Trooper Turnage “had facts |Bof the case that I didn’t know because it was not my case. I was just relaying the info.” The judge asked Officer Dunn a few questions. The record is, however, silent as to what the questions were. Officer Dunn testified that the affidavit ultimately submitted to the judge and filed in this record was not completed when he called her. Trooper Turnage testified that Officer Dunn read the affidavit over the phone. Neither Officer Dunn nor Trooper Turnage were sworn prior to giving the judge the information. Trooper Turnage never spoke to the judge although he was the affiant. The judge gave verbal consent to conduct the search to Officer Dunn over the phone with instructions to bring the paperwork to her office early the next morning to be signed. There is nothing in the record to establish that a search warrant was prepared at the time Officer Dunn called the judge or that a search warrant was read to her over the phone. Trooper Turnage testified that he believed he had a valid search warrant that allowed him to search the residence, the curtilage of the residence, and any vehicles and allowed him to search for narcotics and paraphernalia. The record, however, is void of any testimony that the search warrant or any of the information contained in the search warrant was ever either relayed to or read to the judge. The record reflects testimony from the officers that the judge gave them verbal permission to search the residence, but there is no evidence that the residence she authorized them to search was described with any particularity or that any parameters for the search were established. Officer Dunn’s direct testimony was that he did not see ‘the document,’ meaning the affidavit, that night. There is no testimony as to the existence of the search warrant that night.

Pursuant to the judge’s verbal authorization, the residence was searched and a number of items seized. Later that morning, Trooper Turnage took a prepared affidavit and search warrant to the judge’s office where they were signed.

IfiThe defendant, Kimberly M. Scallion, was charged by bill of information filed on May 23, 2006, with one count of possession of diphenoxylate with intent to distribute, in violation of La.R.S. 40:970, and one count of possession of oxycodone, in violation of La.R.S. 40:967. The defendant entered a plea of not guilty to all charges on May 24, 2006. A motion to suppress evidence was filed on November 3, 2006. The trial court held a suppression hearing on January 30, 2007. The motion was denied, with written reasons, on April 18, 2007.

On April 30, 2007, the defendant entered a guilty plea, pursuant to State v. Crosby, 338 So.2d 584 (La.1976), to possession of oxycodone, and reserved her right to appeal the trial court’s denial of her motion to suppress. The remaining charge was dismissed. The defendant was subsequently sentenced to serve five years at hard labor, all of which were suspended, and she was placed on five years supervised probation. The defendant was further ordered to pay certain fines and costs.

The defendant timely filed a motion for appeal. The defendant is now before this court asserting one assignment of error, wherein she contends the trial court erred in denying her motion to suppress.

DISCUSSION

In her sole assignment of error, the defendant argues the trial court erred in failing to grant her Motion to Suppress Evidence.

The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and unreasonable seizures of items located in a person’s home. Further, Article 1, Section 5 of the Louisiana Constitution of 1974 provides as follows:

§ 5. Right to Privacy

Section 5. Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable ^searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

WARRANTLESS ENTRY INTO THE HOME

There is no question that the initial entry into the Scallion residence was without a warrant. The officers involved in this investigation decided to approach the residence at issue and conduct a ‘knock and talk.’ ‘Knock and talk’ is a law enforcement tactic where police officers, who possess some information that they believe warrants further investigation but is insufficient to constitute probable cause for a search warrant, approach the person suspected of engaging in illegal activity at the person’s residence, knock on the front door, identify themselves as police officers, and request consent to search for the suspected illegality or illicit items. State v. Warren, 05-2248 (La.2/22/07), 949 So.2d 1215.

Louisiana jurisprudence allows the ‘knock and talk’ approach of police. See State v. Green, 598 So.2d 624 (La.App. 3 Cir.1992). Knocking on a person’s door violates no right of privacy. State v. Sanders, 374 So.2d 1186 (La.1979). Knocking on one’s door is “an age old request for permission to speak to the occupant.” Id. at 1188. We find, therefore, no impropriety in the officers knocking at the door of the Scallion residence.

We now must determine whether the officers were justified in the forced entry into the Scallion home. When the officers knocked on the door, the occupants of the house began to move back and forth quickly within the residence. The state maintains that because of this, and because the officers did not know whether the Isoccupants were arming themselves or destroying evidence, exigent circumstances existed that justified the warrantless, forced entry into the home.

Searches and seizures inside a residence without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). There are exceptions to the warrant requirement, one being that exigent circumstances exist that justify the warrantless entry. Id. The Louisiana Supreme Court recently discussed the exigent circumstance exception, noting as follows:

Police generally need a warrant to enter a home, but “warrantless searches will be allowed when police have a reasonable belief that exigent circumstances require immediate action and there is no time to secure a warrant.” United States v. Lenoir, 318 F.3d 725, 730 (7th Cir.2003); United States v. Marshall, 157 F.3d 477, 481-82 (7th Cir. 1998); United States v. Radka, 904 F.2d 357, 361 (6th Cir.1990).To justify a warrantless entry, the exigent circumstances must be known to the officers “at the time of the warrantless entry” and cannot be based on evidence discovered during the search. United States v. Rivera, 248 F.3d 677, 680-81 (7th Cir.), cert. denied, 534 U.S. 923, 122 S.Ct. 277, 151 L.Ed.2d 203 (2001); accord United States v. Arch, 7 F.3d 1300, 1304 (7th Cir.1993).
In order to justify a warrantless entry based on exigent circumstances, there must also be probable cause to enter the residence. United States v. Johnson, 9 F.3d 506, 509 (6th Cir.1993) (citing United States v. Sangineto-Miranda, 859 F.2d 1501, 1511 n. 6 (6th Cir.1988)); Steagald v. United States, 451 U.S. 204, 211, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); see also United States v. Rubin, 474 F.2d 262, 268 (3d Cir.1973) [ ]. Probable cause is defined as “reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.” United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990). This determination must be made from the totality of the circumstances, based on the objective facts known to the officer at the time. United States v. Ferguson, 8 F.3d 385, 391-92 (6th Cir.1993). In determining whether sufficient exigent circumstances exist to justify the warrantless entry and search or seizure, the court must “consider the totality of the circumstances and the ‘inherent necessities of the situation at the time.’ ” [United States v.] Rohrig, 98 F.3d 1506 at 1511 [ (6th Cir.1996) ] (quoting Johnson, 9 F.3d at 508) (internal quotation marks omitted). Further, the scope of the intrusion must be circumscribed by the exigencies that justified the warrant-less search. Mincey v. Arizona, [437 U.S. 385, 394, 98 S.Ct. 2408,(1978) ].
lain U.S. v. Coles, 437 F.3d 361(3rd Cir.2006), the Federal United States Appellate Court noted examples of exigent circumstances that included, but were not limited to hot pursuit of a suspected felon, the possibility that evidence may be removed or destroyed, and danger to the lives of officers or others. United States v. Rohrig, 98 F.3d 1506, 1515 (6th Cir.1996); U.S. v. Richard, 994 F.2d 244, 247-48 (5th Cir.1993); Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); see also Rubin, 474 F.2d at 268-69. In these limited situations, the need for effective law enforcement trumps the right of privacy and the requirement, of a search warrant, thereby excusing an otherwise unconstitutional intrusion. Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Exigent circumstances, however, do not meet Fourth Amendment standards if the government deliberately creates them. United States v. Acosta, 965 F.2d 1248, 1254(3d Cir.1992); United States v. Duchi, 906 F.2d 1278, 1284-85 (8th Cir. 1990); United States v. Timberlake, 896 F.2d 592, 597 (D.C.Cir.1990); United States v. Thompson, 700 F.2d 944, 950 (5th Cir.1983).
Exigent circumstances justify a war-rantless entry, search, or seizure when “police officers, acting on probable cause and in good faith, reasonably believe from the totality of the circumstances that (a) evidence or contraband will imminently be destroyed or (b) the nature of the crime or character of the suspects) pose a risk of danger to the arresting officers or third persons.” United States v. Kunkler, 679 F.2d 187, 191-192 (9th Cir.1982) (footnote omitted). The government bears the burden of showing specific and articulable facts to justify the finding of exigent circumstances. LaLonde v. County of Riverside, 204 F.3d 947, 957 (9th Cir.2000) (citing United States v. Shephard, 21 F.3d 933, 938 (9th Cir.1994)) (quoting United States v. Driver, 776 F.2d 807, 810 (9th Cir.1985)).

Warren, 949 So.2d at 1224-1225.

We must examine the facts known to law enforcement at the time the officers knocked on the door at the Scallion residence to determine whether, under the totality of the circumstances and acting on probable cause, the officers reasonably believed that evidence was at risk of being immediately destroyed or there was a risk of danger to the officers.

|inAt the time of the ‘knock and talk,’ the officers had information from Mr. Bounds that he was supposed to deliver Sudafed and precursors used in the manufacturing of methamphetamine to Eddie Wayne Scallion in Natchitoches Parish. Mr. Bounds had been stopped for a traffic violation in Homer, Louisiana, and these items were found in his possession. The officers had no previous knowledge of Mr. Bounds. They knew nothing of his background and, not only had the police never used him in the past as an informant, they had never had any contact with him until , that day. Based on the information he gave them, they targeted the Scallion residence as the possible location of a methamphetamine lab. Although an officer accompanied Mr. Bounds to the Scallion residence, only Mr. Bounds actually went inside the house. Only the Su-dafed was taken into the residence. The precursors were not. The law enforcement officers had no prior knowledge of any drug-related activities at the Scallion residence. Mr. Bounds told them who was in the house. Mr. Bounds told them that he had seen pill wash in one of the bedrooms. Mr. Bounds told them that he was to be back in a few hours to receive the finished product. All the information the officers had available to them came from Mr. Bounds with whom they first had contact less than nine hours earlier during a traffic stop. They had no information that would establish Mr. Bounds as a reliable informant. They had no prior knowledge of drug activity at the Scallion residence. They had no corroborating information from any other source. The only objective fact known to law enforcement was that Mr. Bounds dropped sixty Sudafed tablets at the Scallion residence. Any other information the police had was the product of the uncorroborated statements of Mr. Bounds.

Inin State v. Killian, 95-826 (La.App. 3 Cir. 5/8/96), 677 So.2d 487, writ denied, 96-1461 (La.11/8/96), 683 So.2d 266, this court upheld the validity of a warrantless entry into a home where the police officers could see into the residence and observe both drugs in plain view and the panicked movement of the occupants. In the instant case, Trooper Turnage could not see into the Scallion residence because of the texture of the glass. The officers could only see the forms of individuals moving back and forth in what was described as panicked movements. Based on the totality of the actual information available to them at that time, we do not find that law enforcement officers could reasonably conclude that the reason for the movement was the destruction of evidence or arming of the occupants. Because we find the officers lacked probable cause to believe the destruction of evidence was imminent, or their safety was at risk, we find there were no exigent circumstances that justified the forced entry into the Scallion residence. Any evidence discovered by law enforcement as a result of the warrantless entry, therefore, cannot be considered in determining whether there was probable cause for a search warrant to be issued and cannot be admitted into evidence under the ‘plain view doctrine.

SEARCH WARRANT

The law enforcement officers contacted the judge by telephone and sought to obtain a telephonic search warrant. Trooper Turnage testified that he believed he had a valid search warrant. The trial court, in its reasons for ruling, found the officers to be in good faith and refused to suppress the evidence seized pursuant to the warrant, relying on State v. Guidry, 03-625 (La.App. 5 Cir. 1/27/04), 866 So.2d 944 and United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We disagree that the exceptions set forth in Leon and Guidry apply to the matter before us.

li?The officers sought to obtain a telephonic search warrant. Telephonic search warrants are authorized in Louisiana pursuant to La.Code Crim.P. art. 162.1, which provides in pertinent part as follows:

A. In addition to the provisions of Article 162, a search warrant may issue only upon probable cause established to the satisfaction of the judge by the sworn oral testimony of a credible person reciting facts establishing the cause for issuance of the warrant.
B. The sworn oral testimony may be communicated to the judge, and the oath may be administered by the judge, by telephone, radio, or such other electronic method of communication deemed appropriate by the judge. If the judge determines that the warrant should issue, he shall order the applicant to affix a facsimile of his signature to the warrant which the applicant has prepared and to note thereon the date and time of the determination. The sworn oral testimony, the contents of the warrant issued, the order to affix the signature facsimile, and the date and time of the determination shall be electronically recorded by the judge, who shall cause the recording to be transcribed and fixed in the record within seven days. The judge shall certify the accuracy of the transcription.
C.A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.

In Leon, 468 U.S. 897, 104 S.Ct. 3405, a facially valid search warrant was issued by a state court judge. Certain evidence was seized pursuant to that warrant, and ultimately the defendants were indicted on several criminal counts based on the evidence seized. At a subsequent suppression hearing, the evidence was suppressed. The trial court concluded that the affidavit was insufficient to support the issuance of the warrant. The Court of Appeal affirmed the trial court’s ruling. United States v. Leon, 701 F.2d 187 (1983). The Supreme Court ultimately held that the Fourth Amendment exclusionary rule should not be applied to suppress the use of evidence in the prosecution of a defendant where the police obtained the evidence pursuant to a search warrant issued by a neutral magistrate where the warrant is ultimately found 11sto be invalid. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. The Supreme Court in Leon noted that the purpose of the exclusionary rule is “to deter police misconduct rather than to punish the errors of judges and magistrates.” Id. at 916, 104 S.Ct. 3405. The Court declined to exclude evidence seized pursuant to a warrant executed by an officer who acted in good faith under the belief he had a valid warrant and who acted within its scope. The court specified four situations, however, where the suppression of evidence would be appropriate: (1) If the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) The issuing magistrate wholly abandons his detached and neutral judicial role; (3) When the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) When a warrant is so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.

In Guidry, 866 So.2d 944, the court, upon remand from the Louisiana Supreme Court, addressed the issue of whether evidence must be suppressed when the mandatory provisions of La.Code Crim.P. art. 162.1(D), pertaining to facsimile-issued search warrants, are not met. In Guidry, the affidavit and search warrant were faxed to the issuing judge. The officer who submitted the affidavit was not certain he signed it before it was submitted. The judge failed to certify the date and time of the administration of the oath as required by Article 162.1(D). According to the officer, the judge never administered the oath. The court found that “the executing officers reasonably presumed the warrant to be valid given the fact that the judge signed the warrant acknowledging that [the officer] presented an affidavit to him and [14that he was satisfied probable cause existed.” Id. at 948. Relying on the good faith exception set forth in Leon, the court determined that the deficiencies did not require suppression.

The facts in Guidry are clearly distinguishable from those before us in this matter. Article 162.1 allows the affiant to read the affidavit, under oath, to the judge by telephone or other electronic means. The statute clearly requires that the warrant also be read, which includes the required description of the place to be searched, the reason for the search, and the things to be seized, since it mandates that both the affidavit and warrant be electronically recorded by the judge. Further, the statute directs that the judge authorize a facsimile of her signature be affixed to the warrant the officer has prepared. The electronic recording, which is then transcribed within the prescribed time and filed with the clerk, assures that what was presented to the judge over the telephone, and what the judge authorized as to the search warrant, did in fact meet the requirements of law as to establishing probable cause for the issuance of the warrant and the actual contents of the warrant authorized by the court.

In the matter before us, there was total noncompliance with the mandated provisions of Article 162.1(A)(B) and (C). There is no clear evidence that either an affidavit or a warrant actually existed at the time the judge was contacted by the officers. The judge never spoke to the affiant, only to an officer relaying information to the judge from the affiant. There is no testimony that the warrant, describing the place to be searched, the things to be seized, and the lawful purpose for the search, was ever read to the judge. There is no evidence that either the affidavit or warrant had been prepared prior to the phone call to the judge. In fact, the officer who spoke to the judge, Officer Dunn, specifically testified that he was not with the affiant when |1Rhe sat down and wrote up the affidavit. Officer Dunn testified he never saw the affidavit until a day or so after the search and that the affidavit was not completed when he talked to the judge. As there was no electronic recording, as required by the statute, it is not possible to determine if the affidavit and warrant presented the following morning contained the same information as given over the telephone the night before.

Both Trooper Turnage and Officer Dunn testified that they believed they had a valid search warrant. Officer Dunn said that the judge gave them a Verbal warrant.’ Article 162.1 does not contemplate the issuance of a ‘verbal warrant.’ It clearly requires that the affidavit and warrant are prepared, read to the judge, and the contents electronically recorded. There is no evidence that either an affidavit had been prepared or that a search warrant actually existed prior to the search of the Scallion residence.

Leon clearly states that the suppression of evidence is appropriate when either the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence unreasonable or when a warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. As there is no evidence that either an affidavit or a warrant were actually drawn up until after the search, we find the officers could not reasonably rely on a verbal authorization from the judge. This is not a case where there was simply an error by the issuing magistrate. We find the trial court erred, therefore, in denying the defendant’s motion to suppress evidence.

I ir,conclusion

There were no exigent circumstances that justified the warrantless entry into the Scallion residence. Further, considering the totality of the evidence presented, there was no facially valid warrant upon which law enforcement could reasonably rely in conducting the search of the Scallion residence. The trial court’s ruling on the motion to suppress is reversed. The defendant’s conviction is reversed and set aside.

CONVICTION REVERSED AND SET ASIDE.