author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Michael Edward DORSEY, Appellant.
    No. 41,418-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.

      Cary J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, Lea R. Hall, Jr., Brian H. Barber, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and PEATROSS, JJ.
   GASKINS, J.

hThe defendant, Michael Edward Dorsey, appeals as excessive his sentence to 45 years at hard labor without benefit of probation or suspension of sentence, following his conviction for aggravated burglary. For the following reasons, the conviction and sentence are affirmed.

FACTS

In the early morning hours of July 25, 2004, 14-year-old L.P. and her 11-year-old sister, B.P., were babysitting three younger cousins at their aunt’s residence in the Wilkerson Terrace Apartments. The aunt left L.P. in charge of the group while she went out for the evening. Around 1:00 or 2:00 a.m., the children heard banging on the front door of the apartment. The screen and front door of the apartment were closed, but unlocked. The defendant, known to L.P. and B.P. as “Mike D,” entered the apartment.

At the time, L.P. was upstairs listening to music and talking on the telephone. When she went downstairs, the defendant was standing in the apartment telling the youngsters that he liked little children and wanted to perform oral sex on them. L.P. repeatedly told the defendant to leave the apartment and he refused to comply. The defendant pushed L.P. against a corner wall while grabbing and squeezing her breasts. L.P. noted that the defendant smelled of alcohol, his speech was slurred, and he staggered when he walked.

Eventually, L.P. and the children were able to push the defendant out of the apartment through the back door. Unable to reach the aunt or their mother by telephone, the children locked the doors to the apartment and Lwent upstairs to await the return of their aunt. Several hours later, the aunt returned and was told of the incident.

The defendant was staying at his girlfriend’s apartment two doors down from the aunt. The aunt went to the apartment and knocked on the door, but received no response. The aunt then reported the incident at the police substation/security office located in the apartment complex. When the police arrived, they located the defendant in his girlfriend’s apartment and determined that the defendant was on a list of persons barred from the apartment complex. The defendant was arrested for trespassing, indecent behavior with a juvenile, and unauthorized entry.

After the investigation of the incident was complete, the defendant was charged with aggravated burglary. On June 24, 2005, he was found guilty as charged by a jury. On July 7, 2005, the defendant filed a motion for post verdict judgment of acquittal, arguing that there was insufficient evidence upon.which to base his conviction. He claimed that the evidence failed to show that he had specific intent to commit a felony when he entered the apartment.

The defendant was then adjudicated a third felony offender. He had prior felony convictions for distribution of a Schedule I controlled dangerous substance and for unauthorized entry of an inhabited dwelling. The defendant was sentenced on September 2, 2005, to serve 45 years at hard labor, with credit for time served. The defendant filed a motion to reconsider his sentence, claiming that it was excessive and unconstitutional. |3The motion was denied by the trial court. The defendant appealed his conviction and sentence, claiming that there was insufficient evidence upon which to base his conviction and that the sentence imposed is excessive.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the state failed to present sufficient evidence to support his conviction for aggravated burglary. He claims that the state failed to show that his entry into the apartment was unauthorized. He argues that one of the children under L.P.’s care could have let him in. He also claims that the evidence is insufficient to prove the specific intent to commit the felony of indecent behavior with a juvenile when he entered the apartment. He argues that any intent to commit this felony was formed after entering the apartment. These arguments are without merit.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate 1¿court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wilhite, 40,539 (La.App.2d Cir.12/30/05), 917 So.2d 1252.

Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Wilhite, supra. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. McCray, 621 So.2d 94 (La.App. 2d Cir.1993). The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982).

La. R.S. 14:60 states in part:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, ^vith the intent to commit a felony or any theft therein, if the offender,
|B(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place. [Emphasis supplied.]

In the bill of information, the felony alleged by the state was a violation of La. R.S. 14:81, indecent behavior with juveniles. La. R.S. 14:81 states, in pertinent part, indecent behavior with juveniles is the commission of any lewd or lascivious act upon the person or in the presence of any child under the age of 17, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child’s age shall not be a defense.

To find that the defendant committed the underlying felony, it was necessary for the state to prove that (1) there was an age difference of greater than two years between the accused and the victim, who was not yet 17; (2) the accused committed a lewd or lascivious act upon the person or in the presence of any child under the age of 17; and (3) the accused had the specific intent to arouse or gratify either his own or the victim’s sexual desires. State v. Sturdivant, 27,680 (La.App.2d Cir.2/28/96), 669 So.2d 654; State v. Bugbee, 34,524 (La.App.2d Cir.2/28/01), 781 So.2d 748.

The word “lewd” means lustful, indecent and signifies that form of immorality which relates to sexual impurity carried on in a wanton manner. The word “lascivious” means tending to incite lust, indecent, obscene and tending to deprave the morals in respect to sexual relations. Further, the word “lewd” is identified with obscenity and community norms for morality. Finding that an act is lewd or lascivious depends upon the time, the place | fiand all of the circumstances surrounding its commission, including the actual or implied intention of the actor. State v. Sturdivant, supra; State v. Bugbee, supra.

Discussion

In the present case, the state was required to prove that the defendant committed the unauthorized entry of an inhabited dwelling with the specific intent to commit the felony of indecent behavior with a juvenile and that the defendant committed a battery upon a person while in such place. The record shows that the state met its burden of establishing sufficient evidence to support the conviction.

The aunt, L.P., and B.P. testified that the defendant was not authorized to enter the apartment during this incident. L.P. and B.P. testified that the defendant was not let into the apartment voluntarily and that he refused to leave when asked to do so. He was pushed out of the apartment by the children.

Regarding the specific intent to commit the felony of indecent behavior with a juvenile, L.P. testified that on an earlier occasion, the defendant had approached her outside the aunt’s apartment and told her that he wanted to perform oral sex upon her. Upon éntering the apartment, the defendant told all the children his name, that he was 39 years old, and that he wanted to perform oral sex on the children. B.P. armed herself with a knife to defend against the defendant. L.P. encouraged B.P. to put the knife away and told the defendant to leave the apartment.

|7The defendant then advanced toward L.P., who was 14 years old at the time, and began touching and groping her breasts. As L.P. backed away from the defendant, he shoved her against a wall and continued to grope her breasts. L.P. testified as follows:

So he was all close up on me, and he started touching on my chest. And he was just talking to me, asking me what I be doing tomorrow, and when he got off work he want to come take me out and all this. I was like, you really need to leave.

During the investigation of this incident, L.P. and B.P. gave consistent statements to their aunt, the apartment complex manager, and the police. Their testimony remained consistent at the trial of this matter.

Under the facts of this case, a rational trier of fact could have found beyond a reasonable doubt that the evidence, when viewed in the light most favorable to the prosecution, established that the defendant entered the apartment without authorization and with the specific intent to perform or commit a lewd or lascivious act upon the children in the apartment and that after entering the apartment, he committed a battery on L.P. The defendant’s specific intent is evidenced by his sexually suggestive comments made to the young children upon entering the apartment and his prior conversation with L.P. regarding oral sex. Once inside the apartment, he carried out his intent by pushing L.P. against a wall and touching her breasts. The record also shows that the defendant was 39 years old and the victim was 14 years old at the time of the offense. The battery committed on L.P., whereby the defendant groped the child, meets the definition of a lewd or lascivious act. Based upon the facts in the record, a reasonable trier of fact could have found that the evidence, when viewed in the light most 18favorable to the prosecution, is sufficient to support the conviction for aggravated burglary.

EXCESSIVE SENTENCE

The defendant argues that his sentence to serve 45 years at hard labor, without benefit of probation or suspension of sentence, is excessive. He contends that the sentence is too severe, shocks the sense of justice, and is nothing more than the needless and purposeless imposition of pain and suffering. He urges that, at his age, the sentence is virtually a life sentence. These arguments are without merit.

Legal Principles

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 La. C. Cr. P. art. 894.1. 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.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

Second, whether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. 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.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

Discussion

The record shows that the trial court considered the factors for sentencing set forth in La. C. Cr. P. art. 894.1 and fully articulated well-considered reasons for the sentence imposed. The trial court referred to testimony from the defendant’s mother and a family friend presented at a sentencing hearing. The court noted that the defendant was raised in a good home, had been employed, and had the support of a family friend who testified on his behalf.

The court noted that the defendant had an extensive criminal history, having been arrested 14 times since 1983. The defendant was convicted in Louisiana of theft in 1983. In 1993, he was convicted of interfering with police officers. In 1995 and 1997, the defendant was arrested for remaining |inafter being forbidden. He was convicted in 1996 for remaining after being forbidden.

In 1998, the defendant had a felony conviction for distribution of a Schedule I controlled dangerous substance. He was sentenced to five years at hard labor, but the sentence was suspended and the defendant was placed on supervised probation for three years. His probation was eventually revoked in 2000.

In 1998, the defendant pled guilty to a reduced charge of unauthorized entry of an inhabited dwelling. The defendant had originally been charged with simple burglary and simple rape arising from an incident in which he entered a home through a window and raped an occupant of the house. The court noted that there was at least one child present in the house at the time of that offense.

The court noted that the defendant was then 40 years old and stated that it was very sad that the present offense involved a 14-year-old child. According to the court, the defendant had shown no remorse for the offense and had been a behavior problem while incarcerated on the present offense.

The court found that there was an undue risk that the defendant would commit another offense and that he was in need of correctional treatment best provided by incarceration. The court found that a lesser sentence than that actually imposed would deprecate the seriousness of the offense.

The court noted that the victim was vulnerable because of her youth and the defendant’s actions posed a risk of bodily harm to more than one person. The court considered the emotional damage inflicted on the 14-tyear-old-n victim and found that the defendant knew or should have known that his actions would cause such harm. The court stated that there was no strong provocation for this offense and that the victim did not facilitate the offense. The court noted that the defendant was voluntarily intoxicated at the time of the offense.

The record shows that the trial court adequately considered the factors listed in La. C. Cr. P. art. 894.1 in imposing this sentence. Further, the sentence imposed is not excessive. Following adjudication as a third felony offender, the sentencing range for aggravated burglary is not less than 20 years nor more than 60 years at hard labor, without benefit of probation or suspension of sentence. La. R.S. 15:529.1; La. R.S. 14:60. The trial court found that, under the facts presented in this case, a mid-range sentence was appropriate. Accordingly, the court ordered that the defendant serve 45 years at hard labor, without benefit of probation or suspension of sentence.

The sentence imposed for this third felony offender, with previous arrests for a sex offense and burglary, does not shock the sense of justice, is not grossly out of proportion to the seriousness of the offense, and does not needlessly inflict pain and suffering. The defendant had previously received leniency in his prior offenses and continued to commit crimes while on | ^probation and shortly after being released from prison. The sentence in this matter is tailored to both the offender and the offense.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Michael Edward Dorsey, for aggravated burglary.

AFFIRMED.

      . In accordance with La. R.S. 46:1844(W), the minor children will be referred to by their initials only.

      . At the time of the trial, the defendant had married his girlfriend, and she refused to testify, invoking the spousal privilege.

      . The defendant specifically chose to exclude the transcript of the sentencing hearing from the designation of the record to be considered on appeal.

      . Apparently the defendant had a criminal record in California. At the time of the sentencing hearing, the state did not have the ability to run interstate rap sheets due the damage caused by Hurricane Katrina. The state and the defendant agreed to ask the court not to consider those matters due to the inability to verify the information.

      . We note that the trial court did not specify that the sentence was to be imposed without benefit of probation, or suspension of sentence. However, La. R.S. 15:301.1 provides that this failure to specifically state that the sentence shall be served without benefits does not affect the statutory requirement that a sentence be served without benefits. The provision is self-activating. State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790. Therefore, the sentence is to be served without benefit of probation or suspension of sentence as specified by law.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Concursus Proceeding in the Matter of a Breach of Contract and Inequitable Attorneys Fee-Split Jo Ann P. LEVERT v. Gerald J. MARTINEZ, Manuel A. Fernandez, and Frederick Seemann, in the Medical Malpractice Action of Rosalie Russell and John Russell v. Chalmette Medical Hospital, et al, 69-917 Div. C, 34th J.D.C.
    Nos. 06-CA-11, 06-CA-154.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.
    Rehearing Denied Oct. 30, 2006.

      Christina B. Peck, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant, Christina B. Peck.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JAMES C. GULOTTA, Judge, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

| gIn this consolidated appeal, plaintiff, Jo Ann Levert, seeks review of: 1) the trial court’s July 27, 2005 judgment, which granted an Exception of Improper Venue filed by defendants, Manuel Fernandez, G. Frederick Seemann, and Fernandez and Seemann In Partnership (sometimes referred to as “the partnership”), and 2) the trial court’s April 13, 2005 judgment, which granted defendants’ request for sanctions against Ms. Levert and ordered her to pay $5,000 in attorney fees plus costs to defendants. For the reasons which follow, we affirm the judgments granting the Exception of Improper Venue and ordering Le-vert to pay sanctions to defendants. However, we amend the amount of sanctions and reduce them to $1,000.

FACTS AND PROCEDURAL HISTORY

This case involves a dispute over attorney fees arising from the settlement of a medical malpractice action filed in the 34th Judicial District Court in St. Bernard Parish, entitled Rosalie and John Russell v. Chalmette Medical Hospital, et al. (“Russell case”). Plaintiff asserts that Gerald Martinez was the original attorney 13handling the case on behalf of the Rus-sells, and he engaged the services of Le-vert in 1989 to assist with the case, because Levert is both an attorney and a nurse. Martinez and Levert apparently entered into a verbal contract providing for the division of attorney fees earned by Mr. Martinez on a contingency basis.

According to plaintiff, Martinez decided to retire his law practice while the Russell case was still pending, and he referred the matter to the partnership of Manuel Fernandez and G. Frederick Seemann for further handling of the case. Levert contends that she entered into an oral contract with Seemann which provided that she would receive one-half of the contingency fee received by the partnership, in addition to fees she would receive under her agreement with Martinez. Seemann asserts that neither he nor the partnership contracted with Levert and that she is only entitled to a percentage of the fees received by Martinez, as per her agreement with Martinez. He contends that, pursuant to their agreement with Martinez, Fernandez and Seemann are entitled to two-thirds of the entire contingency fee and Martinez is entitled to one-third of the contingency fee, subject to any other agreements entered into by Martinez.

The Russell case settled in 2001 for $850,000. Thereafter, this dispute over approximately $280,000 in attorney fees arose. According to plaintiff, one-half of the entire contingency fee was disbursed to Fernandez and Seemann, one-third of the entire contingency fee was split equally between Levert and Martinez, and the remaining funds were left in Fernandez and Seemann’s client account due to the dispute over the proper distribution of attorney fees. On May 7, 2003, plaintiff filed this lawsuit as a concursus proceeding against Martinez, Fernandez, Seemann, and the partnership.

On July 29, 2003, Fernandez and Seem-ann filed Exceptions of No Cause of Action, Improper Venue, Nonconformity of the Petition, and Vagueness, and a ^Motion for Sanctions against plaintiff. Plaintiff then filed an Amended Petition for Concursus on August 14, 2003. A hearing was held on September 16, 2003 and, on November 3, 2003, the trial judge signed a judgment denying defendants’ Motion for Sanctions and finding defendants’ exceptions to be moot.

On October 2, 2003, plaintiff filed a Supplemental and Second Amended Petition in which she sought a declaratory judgment in addition to the relief sought in her prior petitions. On October 6, 2003, defendants filed Exceptions of No Cause of Action, No Right of Action for Concursus, Improper Use of Concursus, and Improper Venue, and a Motion for Sanctions against plaintiff, and they filed a supplemental memorandum on December 10, 2003. Plaintiff filed an opposition to defendants’ exceptions, asserting that some of defendants’ exceptions were waived by their appearance at the September 16, 2003 hearing seeking sanctions against plaintiff. On January 30, 2004, plaintiff filed a “Motion and Order for Concursus, Alternative Declaratory Relief.” On February 3, 2004, defendant Martinez filed exceptions seeking the same relief as that requested in Fernandez and Seemann’s exceptions, including sanctions.

A hearing was held on March 2, 2004 and the trial court signed a judgment with reasons on April 30, 2004, granting defendants’ Exceptions of No Cause of Action, No Right of Action, and Improper Use of Concursus, denying defendants’ Exception of Vagueness, and denying plaintiffs Motion and Order for Concursus, Alternative Declaratory Relief. In his reasons for judgment, the trial judge stated:

... we do not find that a cause of action or right of action exist [sic]. Since we have made a determination on these exceptions, it is not necessary to determine the question of venue since the nature of the claim bears upon a determination of venue.

On May 13, 2004, plaintiff filed a Motion and Order for Rehearing and Clarification of the April 30, 2004 judgment, in which she also requested that |sthe trial court designate the April 30, 2004 judgment as final for purposes of appeal. A hearing was held on August 5, 2004 at the end of which the parties were granted additional time to file post-hearing memoranda and to obtain a transcript of the March 2, 2004 hearing. On October 6, 2004, the trial court rendered a judgment, denying plaintiffs Motion and Order for Rehearing and Clarification of Judgment based on a finding that the April 80, 2004 judgment was “clear in its findings, intent and orders.” However, noting that the April 30, 2004 judgment did not allow plaintiff time to amend her pleadings, the trial judge granted plaintiff “thirty (30) days after the notice of signing of this judgment by which to amend her petition to state a cause of action herein.” In this judgment, the trial judge also denied plaintiffs request to have the April 30, 2004 judgment certified as a final judgment, setting forth his reasons as follows:

Plaintiff has requested that we designate the judgment signed on April 30, 2004 as a final judgment for purpose of appeal. Since we have now allowed Plaintiff a delay by which to amend her pleadings, we decline to grant such relief. On the other hand, should Plaintiff notify the Court in writing of her desire to not amend as permitted, we will grant her request to so designate the judgment.

On October 18, 2004, plaintiff filed a “Notice of Intent to Apply for Supervisory, Remedial and/or Certiorari Writ of Review, and/or Suspensive Appeal of Judgments dated 4/30/04 and 10/06/04,” which was granted by the trial judge on October 18, 2004. Thereafter, plaintiff filed an appeal with this Court and, on February 16, 2005, defendants filed a Motion to Dismiss Appeal based on the fact that the April 30, 2004 judgment had not been certified as final. A panel of this Court dismissed plaintiffs appeal on February 24, 2005.

On January 14, 2005, defendants, Fernandez, Seemann, and the partnership again filed Exceptions of Improper Venue, Nonconformity of the Petition, and Vagueness, along with a Motion to Strike, and a Motion for Sanctions. These | (¡matters came for hearing on February 22, 2005. At this hearing, defendants told the trial judge that plaintiff had improperly sought an appeal of the April 30, 2004 judgment after the trial judge had specifically denied plaintiffs request to certify the judgment as final for appeal. The trial judge questioned Levert on this claim and the matter was discussed. It was also discussed that after the April 30, 2004 judgment was rendered, plaintiff filed another lawsuit regarding this attorney fee dispute, and it was assigned to another division of the 24th Judicial District Court and later dismissed on an Exception of Lis Pendens. At the end of the hearing, the trial judge gave the parties additional time to file post-hearing memoranda on the issue of sanctions, and defendants’ pending exceptions were again reset.

After plaintiff and defendants filed their post-hearing memoranda, the trial judge rendered a judgment with reasons on April 13, 2005, finding that sanctions against plaintiff were warranted for Levert’s disregard of the court’s order denying her request to certify the April 30, 2004 judgment as final for appeal purposes. The trial judge ordered plaintiff to pay $5,000 in attorney fees plus all costs to defendants, Fernandez, Seemann, and the partnership. This judgment is the first judgment at issue in this appeal.

On June 2, 2005, Fernandez and Seem-ann’s Exception of Improper Venue was heard by the court. Seemann and Levert testified at the hearing. At the conclusion of the hearing, the trial court granted defendants’ Exception of Improper Venue, finding that Jefferson Parish was an improper venue as to Fernandez, Seemann, and the partnership. On July 27, 2005, the trial judge signed a judgment granting defendants’ Exception of Improper Venue and dismissing |7Fernandez, Seemann, and the partnership from this lawsuit. This is the second judgment at issue in this appeal.

DISCUSSION

In her first assignment of error, plaintiff contends that:

The trial court erred in awarding sanctions against Levert for filing an appeal of the trial court’s April 30, 2004 Judgment with Reasons, where the Judgment granted exceptions of no cause of action, no right of action and improper use of concursus as to all defendants and could be deemed a final judgment under Code of Civil Procedure Art.1915.

Plaintiff asserts that the April 30, 2004 judgment granted Exceptions of No Cause of Action, No Right of Action, and Improper Use of Concursus as to all defendants, even though Martinez’s exceptions were not served and the trial judge had indicated that they were not being considered due to lack of service. Levert states that she believed the April 30, 2004 judgment was a final judgment, so she filed a Motion and Order for Rehearing and Clarification of Judgment, in which she also asked the trial judge to certify the judgment as final under LSA-C.C.P. art. 1915(B). Levert argues that after the trial judge denied her Motion for Rehearing and Clarification and her request to designate the April 30, 2004 judgment as final, she believed that the trial court’s grant of the exceptions was a final judgment, so she filed a Notice of Intent to File a Writ and/or Suspensive Appeal in order to prevent the April 30, 2004 judgment from “acquiring the authority of the thing adjudged” and becoming non-appealable. She argues that if the April 30, 2004 judgment dismissed the con-cursus proceeding as to all defendants, then it was a final judgment under LSA-C.C.P. art. 1915A(1), and it was not necessary to have the judgment certified as final by the trial court. She further argues that, even if lathe April 30, 2004 judgment was interlocutory and not final, it was appealable because it caused irreparable harm and a judgment causing irreparable harm is not required to be designated as final.

LSA-C.C.P. art.1915 provides in pertinent part:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.

Despite Levert’s assertions, the April 30, 2004 judgment is not a final judgment under LSA-C.C.P. art. 1915A(1). We note that the April 30, 2004 judgment does not indicate that any defendants were dismissed from this lawsuit. In her brief, plaintiff states, “the April 30, 2004 Judgments [sic] with reasons did not actually dismiss any of the defendants from Le-vert’s lawsuit,” but she adds, “it did resolve the concursus proceeding between Levert and all defendants.” Plaintiff asserts that she filed an appeal of the April 30, 2004 judgment to prevent it from becoming final. However, in his October 6, 2004 judgment, the trial judge specifically indicated that the judgment was not final, but that plaintiff could amend her petition or simply notify the Court in writing of her desire to not amend and then, the trial judge would certify the April 30, 2004 judgment as final. After a certification, Levert could have properly appealed the judgment and protected her right to keep the April 30, 2004 judgment from becoming final.

Considering the evidence before us and the applicable law, particularly LSA-C.C.P. art.1915, we find that the April 30, 2004 judgment was not final and could not have been appealed without being designated as final by the trial court. Accordingly, plaintiffs first assignment of error is without merit.

In her second assignment of error, plaintiff asserts that:

|nThe trial court erred in awarding sanctions against Levert for filing an appeal of the trial court’s April 30, 2004 Judgment with Reasons where the Notice of Intent to File Supervisory, Remedial and/or Certiorari Writ of Review and/or Suspensive Appeal of Judgments dated 4/30/05 [sic] and 10/06/04 was not misleading and clearly identified that one of the remedies being sought was an appeal of the April 30, 2004 Judgment with Reasons and the October 6, 2004 Judgment refusing to certify the April 30, 2004 Judgment as final, and copies of the April 30, 2004 Judgment with Reasons and the October 6, 2004 Judgment were attached to the Notice and were provided to the trial judge at the time the Notice of Intent was presented to the trial judge for signing.

She asserts that the pleadings do not reveal any intent by Levert to mislead the court because the caption of her Notice of Intent clearly sets forth that plaintiff was seeking a suspensive appeal of the April 30, 2004 and October 6, 2004 judgments as alternative relief, and she attached copies of these judgments with her Notice of Intent. She further argues that, given the ambiguity of the April 30, 2004 judgment and the possible harm to her by dismissal of the concursus proceeding as to all defendants, she had no choice but to appeal the April 30, 2004 judgment. Accordingly, she asserts that the trial judge’s order of sanctions against her should be reversed.

LSA-C.C.P. art. 863 provides that the signature of an attorney on a pleading constitutes a certification that she had read the pleading, that it is well grounded in fact to the best of her knowledge after reasonable inquiry, that it is warranted by existing law or good faith argument, and that it is not interposed for any improper purpose. Accordingly, under LSA-C.C.P. art. 863, there is an affirmative duty imposed on attorneys and litigants to make an objectively reasonable inquiry into the facts and the law. Alombro v. Alfortish, 02-1081 (La.App. 5 Cir. 4/29/03), 845 So.2d 1162, 1168, writ denied, 03-1947 (La.10/31/03), 857 So.2d 486. In determining whether an attorney has breached that affirmative duty, the trial court should test the signer’s conduct by inquiring what was 11nreasonable to believe at the time the pleading, motion or other paper was submitted. Sternberg v. Sternberg, 97-101 (La.App. 5 Cir. 5/28/97), 695 So.2d 1068, 1071, writ denied, 97-1737 (La.10/13/97), 703 So.2d 618. If the court determines that a certification has been made in violation of art. 863, the court shall impose upon the person who made the certification an appropriate sanction which may include an amount of reasonable attorney fees. LSA-C.C.P. art. 863(D); Id.

In this case, in the trial judge’s reasons for judgment, he stated in part:

Ms. Levert is an officer of the Court licensed to practice in the State of Louisiana. She acts herein as her own legal representative. In such capacity, she is not released from the obligations imposed upon her by the Rules of Professional Conduct promulgated by the Louisiana State Bar Association. Rule 3.3 of said rules, styled “Candor Toward the Tribunal”, provide [sic] in part as follows:
(a) A lawyer shall not knowingly:
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by apposing [sic] counsel;
We believe that Ms. Levert’s failure to point out to the Court that she included in her order a matter which was a specific contradiction and reversal of the judgment at issue, violates this rule of conduct. We conclude that her failure to so disclose was intentional and with malice on her part, specifically because the denial of the right to appeal was a material issue relating to the October 6th judgment. Simply put, this right to appeal was not a minor matter which could be overlooked or confused in some fashion. Additionally, in reviewing the pleadings before us, we do not find that Ms. Levert ever indicates that this was an oversight on her part or expresses regrets [sic] for her conduct, but she attempts to minimize her acts by suggesting that she had a constitutional or lawful right to do that which she did. We perceive this to mean that Counsel has determined for herself what the applicable law is and whether right or wrong, she will disregard a valid judgment of the tribunal and mislead the Court to accomplish her purpose. This is dangerous and reprehensible.
Orders and pleadings submitted to the Court are not to be presented on a “Judge Beware” approach. The Trial Judge must exercise due diligence in the signing of any orders presented before him, but he is not expected to return to the file and closely scrutinize the record before him in search of honesty. To do so would result in undue delay and loss of valuable time and effort in Inthe administration of justice. Indeed, the Court is required to rely upon the certification by Counsel as expressed in LSA-C.C.P. art. 863. Rule 3.3 seeks to compel therefore, that Counsel will notify the Court in advance, when he or she had taken an action adverse to some established rule of law. There can be no greater rule of law than a valid judgment of the Court.
It is obvious to the least of all, that this Court would not take an action by judgment on one day and reverse that judgment by an order twelve days later. That reversal occurred, solely by the deceptive devices and practices of Ms. Le-vert who failed in her duty as an officer of the Court. We thus find that Defendants request for sanctions pursuant to Louisiana C.C.P. art. 863 to have merit.

The trial judge specifically denied plaintiffs request to designate the April 30, 2004 judgment as final. Thereafter, plaintiff did not file a “Motion for Appeal;” rather, she filed a Notice of Intent with a lengthy title, seeking to file a writ application and/or appeal. The trial judge could have reasonably believed that this was done in an effort to mislead him into granting her request for an appeal. After all, the trial judge had just denied her request to designate the April 30, 2004 judgment as final on October 6, 2004 and she filed her Notice of Intent on October 18, 2004. As stated above, if plaintiff believed that April 30, 2004 judgment was final and wished to appeal it, the trial judge specifically indicated that she could notify the court of her desire not to amend and he would certify the judgment as final so that she could go forward with an appeal. However, no such written notification was provided to the trial court.

In reviewing a trial court’s factual, finding that LSA-C.C.P. art. 863 was violated, appellate courts use the manifest error or clearly wrong standard. Alombro v. Alfortish, supra at 1168. Considering the evidence before us and applying the applicable principles of law, we cannot say that the trial judge’s decision to impose sanctions against Levert was manifestly erroneous dr clearly wrong.

|19Once a violation of LSA-C.C.P. art. 863 has been found and sanctions are imposed, the amount of sanctions are reviewed under the abuse of discretion standard. Butler v. Reeder, 98-484 (La.App. 5 Cir. 12/29/98), 728 So.2d 888, 894, writs denied, 99-1026, 99-1035 (La.5/28/99), 743 So.2d 673, 674. The trial court must consider four factors to determine whether or not the amount of sanctions awarded was appropriate: 1) the conduct that is being punished or is sought to be deterred; 2) the expenses or costs caused by the violation of LSA-C.C.P. art. 863; 3) whether the costs or expenses were reasonable; and 4) whether the sanction was the least severe to achieve the purpose of LSA-C.C.P. art. 863. Thibodeaux v. Billiott, 04-1308 (La.App. 5 Cir. 3/1/05), 900 So.2d 110, 115.

Applying these factors to the case before us, we find that the trial judge abused his discretion in awarding sanctions of $5,000 plus costs against Levert, because this amount is excessive and not the least severe to achieve the purpose of LSA-C.C.P. art. 863. Accordingly, we amend the sanction award and reduce it to $1,000, which is an appropriate amount of sanctions for Levert’s conduct in this case.

In her third assignment of error, plaintiff argues that:

The trial court erred in granting the exception of improper venue as to Fernandez, Seemann and the Partnership, where the cause of action being asserted by Levert against these defendants involves a[sic] attorneys fee contingency dispute, which requires the joinder of all attorneys involved as parties necessary to a just adjudication under Saucier v. Hayes, 373 So.2d 102 (La.1979) and it progeny, where one of the defendants is a resident and domiciliary of Jefferson Parish, the parish in which suit was filed, and the defendants objecting to venue admitted that work on the case which resulted in the contingency fee took place in Jefferson Parish.

The Russell case, which was the litigation that originally associated the parties in the instant litigation, was filed in St. Bernard Parish. It is undisputed that neither Fernandez nor Seemann is domiciled in Jefferson Parish. However, Levert ^j^asserts that venue in Jefferson Parish is proper as to all defendants, because one of the defendants, Martinez, is domiciled in Jefferson Parish. Plaintiff asserts that Martinez was domiciled in Jefferson Parish when the fee sharing arrangement with Levert took place, when Martinez associated Fernandez and Seemann as co-counsel in the Russell case, when the case settled, and when the attorney contingency fee was distributed. She also asserts that venue is proper in Jefferson Parish pursuant to LSA-C.C.P. art. 76.1, because some work on the Russell case was done in Jefferson Parish, and the settlement conference which Seemann attended was held in Jefferson Parish.

Venue is a question of law, which is reviewed de novo by the appellate court. Boes Iron Works, Inc. v. Travelers Cas. and Sur. Co. of America, 05-782 (La.App. 5 Cir. 3/28/06), 927 So.2d 553, 555; Nitro Gaming, Inc. v. D.I. Foods, Inc., 34,301 (La.App. 2 Cir. 11/1/00), 779 So.2d 817, 820. The general rules of venue are set forth in LSA-C.C.P. art. 42, but they are subject to certain exceptions and alternatives. LSA-C.C.P. art. 43. These alternative statutory venue provisions are an extension, supplement, and legal part of the general venue provisions, rather than exceptions requiring strict construction. Elliott v. Amato and Creely, 05-376 (La.App. 1 Cir. 3/29/06), 934 So.2d 779.

At the hearing on the Exception on Improper Venue, Seemann testified that neither he nor the partnership entered into any agreement with Levert individually, but they allowed her to participate in some of the proceedings because she told them she wanted to protect her interest in the Russell case. He testified that Fernandez and Seemann did no work on the case in Jefferson Parish |uand did not enter into any agreement in Jefferson Parish regarding the Russell case. He further stated that the meetings he had with Martinez were held in New Orleans and neither he nor Fernandez is domiciled or has an office in Jefferson Parish.

Levert testified that she entered into a fee arrangement with Martinez in Jefferson Parish and did some work on the Russell case at Martinez’s office in Jefferson Parish. She further testified that Martinez received medical records pertaining to the case while in Jefferson Parish. She admitted that she never met with Fernandez or Seemann in Jefferson Parish, but she met with Seemann numerous times in Lafayette.

There are several alleged contracts involved in the history of this case, but not all of them are at issue in this litigation. Plaintiff asserts that this litigation involves an oral contract between her and Martinez whereby she would receive one-third of the attorney contingency fees received by Martinez in the Russell case. However, plaintiff admits that she received one-half of the fees received by Mr. Martinez, which she agrees may be an overpayment. Accordingly, Levert does not contend that Martinez did not comply with the provisions of this oral contract. Further, plaintiff does not dispute the contract between Martinez and the Russells. Rather, she argues that she had an oral contract with Fernandez and Seemann, which they deny, and she contests the terms of the agreement between Martinez and Fernandez and Seemann, to which she was not a party.

The instant lawsuit focuses on an alleged oral contract between Levert and Fernandez and Seemann, whereby Levert alleges that she was to receive one-half of the attorney contingency fees received by Fernandez and Seemann. Levert asserts that venue in Jefferson Parish is proper under LSA-C.C.P. art. 76.1, because Seemann attended a settlement conference regarding the Russell case in Jefferson [ 1KParish and therefore, “work” on the contract at issue was performed in Jefferson Parish. LSA-C.C.P. art. 76.1 provides:

An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.

Although plaintiff contends that “work or services” on the contract at issue were performed when Seemann attended the settlement conference in Jefferson Parish, we disagree. The settlement conference was “work or services” that took place regarding the Russell case and involved the parties to the Russell litigation, and possibly any contract between the Russells and their attorneys. The record does not indicate that the conference pertained in any way to the alleged oral contract between Levert and Fernandez and Seem-ann, and this conference cannot be considered “work or services” pertaining to that alleged contract. Accordingly, we find that plaintiff has not shown that venue is proper in Jefferson Parish pursuant to LSA-C.C.P. art. 76.1.

After performing a de novo review of the record and considering Louisiana law on venue, we find no error in the trial court judgment granting defendants’ exception of improper venue and dismissing plaintiffs claims against them.

DECREE

For the reasons set forth above, we amend the sanction award imposed against Levert and reduce it to $1,000. In all other respects, we affirm the trial court’s April 13, 2005 and July 27, 2005 judgments.

AFFIRMED AS AMENDED.

      . We note that defendants filed an Answer to Appeal on July 28, 2005. However, they did not file a brief with this Court in response to plaintiff's appeal or in support of the issue in their Answer to Appeal, i.e. the issue of attorney fees/sanctions for filing a "frivolous appeal.” Further, based on our review of the record, we find that defendants are not entitled to the relief sought in their Answer to Appeal.

      . Plaintiff has also argued that defendants waived their venue exception, because they appeared at the hearing on sanctions prior to the hearing of the venue exception. However, when a declinatory exception of improper venue is timely filed before the answer, a subsequent general appearance before trial of the declinatory exception does not constitute waiver of the pending exception. See Bickham v. Sub Sea International, Inc., 93-0541 (La.4/30/93), 617 So.2d 483, 484.


author: GENOVESE, Judge.

text:
    Jane FOSTER v. Barbara HENSHAW and Barbara Henshaw Roberts.
    No. 06-414.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Terrell D. Fowler, Terrell D. Fowler, A P.L.C., Lake Charles, LA, for PlaintiffAp-pellant, Jane Foster.
    Christopher P. Ieyoub, Law Offices of Plauché, Smith & Nieset, A P.L.C. Lake Charles, LA, for Defendant/Appellee, Barbara Henshaw Roberts, in her capacity as independent executor of the succession of Defendant, Barbara Henshaw, now deceased.
    Joel M. Lutz, Stutes, Fontenot, LaV-ergne & Lutz, L.L.C., Lake Charles, LA, for Defendant/Appellee, Barbara Henshaw Roberts.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this slip-and-fall case, Plaintiff, Jane Foster (Foster), appeals the trial court’s granting of summary judgment in favor of Defendant, Barbara Henshaw (Henshaw), on the issue of premises liability, thereby dismissing Plaintiffs lawsuit. For the following reasons, we affirm.

FACTS

In her lawsuit, Foster claims that she was injured when she slipped and fell on leaves which were on the concrete floor at the Henshaw residence. Foster was employed as a domestic sitter for Henshaw, an eighty-eight-year-old Alzheimer’s patient, and Henshaw’s daughter, Francis Gill, also an Alzheimer’s patient. Foster alleges that on November 9, 2002, while attempting to retrieve the newspaper for Henshaw, she slipped and fell on damp leaves and debris on the concrete floor in Henshaw’s carport. Henshaw’s ownership of the residence is not in dispute.

In her deposition testimony, Foster describes her fall as follows:

I fell when I went — I went look for the paper, but it wasn’t there. And then I heard this noise and then this automobile coming up the driveway, and it came up fast and it scared me, so I started to run in to get inside before it got to me and I fell on my way in some leaves. They had a bunch of leaves I fell on. I slipped.

Further, Foster also admits in her deposition that she was aware that leaves often accumulated in this area of Henshaw’s carport. However, Foster did not testify that she told Henshaw about the leaves, or that she knew that Henshaw had knowledge of the existence of the leaves.

Foster filed suit on December 18, 2003. Also named as a defendant in Foster’s original petition was Henshaw’s daughter, Barbara Henshaw Roberts (Roberts), who was later dismissed as a defendant. However, due to Henshaw’s death on January 30, | ;>2005, Roberts remained a party in her capacity as the independent executor of her mother’s estate.

A motion for summary judgment was filed by Henshaw asserting that there are no genuine issues of material fact and, as a matter of law, that Foster is unable to prove certain essential allegations in her petition, i.e., (1) that damp leaves on the concrete carport created an unreasonably dangerous condition; and/or (2) that Hen-shaw had actual or constructive notice or knowledge of the defect. Following a hearing, the trial court granted Henshaw’s motion for summary judgment. The trial court found that leaves on the ground in the garage, as described by Foster, did not create an unreasonable risk of harm and that Foster could not prove that Henshaw had knowledge of the alleged defect based on her medical condition. Foster appeals.

ISSUE

The sole issue raised by Foster on appeal is whether the trial court erred in granting summary judgment in favor of Henshaw, thereby dismissing Foster’s lawsuit.

LAW AND DISCUSSION

“Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Richard v. Hall, 03-1488, p. 4 (La.4/23/04), 874 So.2d 131, 137; Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783. The appellate court must determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as |3a matter of law.” See La.Code Civ.P. art. 966(B). Despite the legislative mandate favoring summary judgments found in La.Code Civ.P. art. 966(A)(2), “factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor.” Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050; Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

Additionally, as we explained in LaRocca v. Bailey, 01-618, pp. 5-6 (La.App. 3 Cir. 11/7/01), 799 So.2d 1263, 1267:

Because this is a summary judgment case to which La.Code Civ.P. art. 966 et seq. is applicable, it is necessary to first determine who will bear the burden of proof at trial. Subpart (C)(2) of La.Code Civ.P. art. 966 explains that[:]
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 bé able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In the instant case, Foster bears the burden of proof at trial. This court reviewed the jurisprudence pertaining to slip-and-fall cases in LeJeune v. Riviana Foods, 97-1091, pp. 2-4 (La.App. 3 Cir. 2/18/98), 707 So.2d 1038, 1039-40, writ denied, 98-749 (La.5/1/98), 718 So.2d 418, wherein we stated:

When an individual is injured as a result of an unreasonably dangerous condition existing on a landowner’s property, he can recover damages relying on either La.Civ.Code art. 2315, which is the basis of general negligence liability, or La.Civ.Code art. 2317, which provides for a strict liability theory of recovery. Owners and occupiers of land have a duty to discover any unreasonably dangerous conditions existing on their premises and to either correct those conditions or warn victims |4of their existence. Silliker v. St Landry Parish Police Jury, 520 So.2d 880 (La.App. 3 Cir.1987).
The difference in proof between a negligence claim based on La.Civ.Code art. 2315 and a strict liability claim resting on La.Civ.Code art. 2317 is that Article 2315 requires that plaintiff show the owner, or person in custody of the premises, either knew or should have known of the risk, whereas Article 2317 relieves plaintiff from having to prove defendant’s scienter. Finley v. State Farm Insurance Co., 598 So.2d 537 (La.App. 1 Cir.1992). However, under either liability theory, plaintiff first has the burden of proving: (1) the property which caused the damage was in the custody of the defendant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises; and, (3) the defect in the property was a cause-in-fact of the resulting injury. Morell v. City of Breaux Bridge, 94-1378 (La.App. 3 Cir. 5/31/95), 660 So.2d 882.
Property owners are not insurers of the safety of visitors, but only owe a duty to keep their premises in a safe condition for use in a manner consistent with the purposes for which the premises are intended. David v. Reon, 520 So.2d 820 (La.App. 3 Cir.1987), writ denied, 522 So.2d 564 (La.1988). Furthermore, not every minor imperfection or irregularity will give rise to strict liability. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Koppie v. Commercial Union Insurance Company, 478 So.2d 179 (La.App. 3 Cir.), writ denied, 479 So.2d 922 (La.1985). In other words, the owner of the premises cannot be held responsible for any risk posed by his property, only those presenting an unreasonable risk of harm to others. David, 520 So.2d 820. In determining whether a given condition is unreasonably dangerous, the degree to which the danger may be observed by a potential victim who may then provide self-protection is a major factor. Silliker, 520 So.2d 880.

As set forth above, summary judgment is proper, as a matter of law, if there exists no genuine issue of material fact. Since Henshaw does not bear the burden of proof at trial, Henshaw is not required, in a summary judgment proceeding, to negate all essential elements of Foster’s claims. Rather, Henshaw must show an absence of factual support for one or more elements essential to Foster’s claim. If Henshaw is successful, the burden of proof then shifts to Foster to produce factual support sufficient to establish that Foster will be able to satisfy her evidentiary burden of proof at trial. LaRocca, 799 So.2d 1263.

| sin support of her motion for summary judgment, Henshaw introduced the affidavit of Roberts attesting to Henshaw’s mental and physical condition at the time of Foster’s accident. Roberts’ affidavit states, in pertinent part:

Barbara Henshaw and her daughter, Francis Gill, were mentally incompetent and incapacitated;
Barbara Henshaw and Francis Gill were physically incapable of tending to their own needs and required assistance with all activities of daily living;
Jane Foster was hired along with various other domestic sitters to provide 24 hour care for the sole reason that Ms. Henshaw and Ms. Gill were mentally and physically incapable of caring for themselves. Specifically, Barbara Hen-shaw was physically and mentally incapable of identifying, understanding or remedy [sic] any condition outside the home, regardless [of] the nature of that condition^]

Henshaw argues that Foster is unable to prove two essential elements of her claim: (1) an unreasonably dangerous condition on the Henshaw property; and (2) actual or constructive notice to Henshaw of said unreasonably dangerous condition. We agree.

In its oral reasons for judgment, the trial court stated:

[W]hether the leaves create an unreasonable risk of harm apparently has been reviewed and based on the Thornton [v. Bd. of Supervisors of Louisiana State Univ., 29,898 (La.App. 2 Cir. 10/29/97), 702 So.2d 72] jurisprudence, they find that those leaves there were not enough to create an unsafe area and that was with an invitee, particularly in the sense of the duty owed the [P]laintiff here was undoubtedly lower than that what was owed to the plaintiff in the Thornton case.
Also, causation [has] not been shown to be [a] genuine issue of material fact by the [P]laintiff pointing out problems by the mover here and no submissions at this time showing that the leaves were in fact a cause in fact of the alleged injury. And then finally that the [Defendant had actual or constructive knowledge of the risk. It is apparent based on the affidavit of the daughter, Barbara Henshaw Roberts[,] that knowledge cannot be imputed or established based on the medical condition [of Defendant, Barbara Henshaw].

The plaintiff in Thornton slipped and fell on damp leaves while walking down a conCrete ramp to exit the Louisiana State University Medical Center building in Shreveport. The second circuit affirmed the trial court’s granting of summary | ¿judgment because the plaintiff admitted in her deposition that she was aware of the leaves covering the walkway and the possible danger said leaves could pose.

In the instant case, it is undisputed that Foster was a hired care-giver of the incapacitated Henshaw and that part of her job was to retrieve the newspaper for Hen-shaw. In fact, Foster was performing that very function on November 9, 2002, when she slipped on some leaves that had accumulated outside the Henshaw residence. It is noteworthy that Foster traveled the same path to retrieve the newspaper as she traveled to quickly return to the house after being startled by a loud noise from an approaching vehicle. Having traveled the same path moments before while en route to retrieve the newspaper, Foster was certainly aware of the condition of the premises and the leaves on the concrete flooring. Foster blames the speed at which she was running and the leaves for her fall. She admits that she knew there were leaves on the carport. She did not fall going out to get the newspaper; she fell running back to the house. The mere presence of leaves on a concrete floor in the fall (November) does not create an unreasonably dangerous condition. Additionally, Foster failed to prove that Hen-shaw had actual or constructive knowledge of the condition of the premises, despite her mental incapacity. Foster failed to prove not only one but two essential elements of her slip-and-fall claim. Given the facts presented and the applicable law, we find that the trial court was correct in granting summary judgment in favor of Henshaw and dismissing Foster’s lawsuit.

DECREE

For the above reasons, the judgment of the trial court granting Henshaw’s motion for summary judgment is affirmed. Costs are assessed to Plaintiff/Appellant, Jane Foster.

AFFIRMED.

      . Despite Henshaw’s death, this court will continue to refer to the sole remaining Defendant in this matter as "Henshaw.”


author: GREMILLION, Judge.

text:
    Stephanie HAYES v. Jason C. COVEY, et al.
    No. 2006-382.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Darrel Dee Ryland, Marksville, LA, for Plaintiff/Appellee, Stephanie Hayes.
    David A. Hughes, Hughes & LaFleur, Alexandria, LA, for Defendants/Appellants, Shelter Mutual Ins. Co. Jason C. Covey.
    Tracy P. Curtis, Perret, Doise, Lafayette, LA, for Defendant/Appellee, Progressive Security Ins. Co.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

hThe defendants, Jason Covey and Shelter Mutual Insurance Company, appeal the trial court’s grant of summary judgment in favor of the plaintiff, Stephanie Hayes, finding that Covey was solely at fault in causing the automobile accident in which Hayes was injured. For the following reasons, we reverse and remand.

FACTS

Louisiana 6 Business Highway is a two-lane highway originating at the Texas border and passing through Many and Robeline before arriving at Natchitoches, Louisiana. Once it enters Natchitoches, it becomes a four-lane divided highway designated as College Avenue. Tarlton Drive originates at College Avenue and runs north and south towards Chaplin Lake, whereas College Avenue runs east and west.

On January 23, 2004, Hayes was traveling east on College Avenue approaching Northwestern State University. Covey was traveling west on College Avenue. While attempting to turn left onto Tarlton Drive, Covey failed to see Hayes’ approaching vehicle and collided with her in the outermost eastbound lane of College Avenue. The collision caused Covey’s vehicle to hit a third vehicle stopped on Tarlton Drive.

Hayes filed suit seeking to recover damages for injuries she suffered as a result of this accident. Named as defendants were Covey and Shelter Mutual, the insurer of the vehicle Covey was driving, which was owned by the father of Covey’s girlfriend. She also filed suit against her own insurer, Progressive Security Insurance Company, based on Covey’s underinsured status. Hayes then filed a motion for ^partial summary judgment on the issue of liability, which was granted by the trial court. A judgment was rendered finding Covey solely at fault in causing the accident. Covey and Shelter Mutual’s application for supervisory writ was denied as their remedy existed through appeal. This appeal followed.

ISSUE

On appeal, Covey and Shelter Mutual argue that the trial court erred in finding that a jury could not find Hayes guilty of comparative fault in this matter.

SUMMARY JUDGMENT

The law pertaining to summary judgment was discussed by the Louisiana Supreme Court in its per curiam opinion in Hines v. Garrett, 04-0806, pp. 1-2 (La.6/25/04), 876 So.2d 764, 765-66 (alteration in original):

We review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if “there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law.” La.Code Civ.Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor.
A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Whether a fact is material is determined in light of the relevant substantive law. Weingartner v. La. IceGators, 02-1181 (La.App. 3 Cir. 4/17/03), 854 So.2d 898, writ denied, 03-1388 (La.9/13/03), 853 So.2d 645.

[¡¡Louisiana Revised Statute 32:123(D) provides the duty of a motorist with regard to yield signs:

The driver or operator of a vehicle approaching a yield sign shall slow down to a speed reasonable for the existing conditions, or shall stop if necessary ... at a clearly marked stop line, but if none, then at the point nearest at the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway. Having slowed or stopped in this manner, the driver shall yield the right of way ... to any vehicle in the intersection or approaching on another highway so closely as to constitute an immediate hazard.

Although the driver at the yield sign has a higher duty to ascertain whether he can safely cross a favored street, the driver on the favored street also has the duty of being an attentive driver. We discussed this duty in DeRosier v. South Louisiana Contractors, 583 So.2d 531, 535 (La.App. 3 Cir.1991):

In other words, the driver on a right-of-way thoroughfare is ordinarily entitled to presume that drivers from side streets will not enter the thoroughfare in his path, especially when the driver on the right-of-way street knows that traffic on the side street is controlled by a stop or yield sign. However, when the motorist on the favored roadway, looks and sees or should have looked and could have seen that the motorist on the non-favored roadway, by obvious actions, is about to disregard a traffic sign, it is the favored motorist’s duty to use his best judgment under the circumstances to avoid or minimize any impending peril. Randall v. Baton Rouge Bus Co., 240 La. 527, 124 So.2d 535 (1960). When the favored motorist should reasonably realize in time that the non-favored traffic will continue its approach and will obstruct the favored motorist’s passage across the intersection, he is guilty of negligence should he fail to take every precaution to avoid a collision. Randall, supra; Spencer v. Hynes, 452 So.2d 1291 (La.App. 3d Cir.1984).

In support of her motion for summary judgment, Hayes introduced her own deposition testimony, as well as that of Covey and the investigating officer, Miranda Jones. In reviewing this evidence, we find that a genuine issue of material fact does exist, which renders summary judgment in this matter improper.

[¿Hayes testified that she was traveling in the outside lane of College Avenue at the time of the accident. She stated that she never saw Covey’s vehicle in the turn lane and it was not until he was in the inside, eastbound lane, approximately a car length away from her, that she saw him. She stated that she tried to brake prior to her vehicle colliding with the front of his vehicle.

Covey testified that he was traveling west on College Avenue and intended to turn onto Tarlton Drive, which turn was controlled by a yield sign. He stated that he entered the turn lane, slowed down, and then stopped. He said that he then turned into the median, looked right, and waited for the east-bound traffic to clear. After the traffic cleared, he stated that he looked straight ahead to the car stopped at the stop sign on Tarlton Drive and then proceeded across the eastbound lane of College Avenue.

Covey testified that he had almost crossed the eastbound lanes of College Avenue when his vehicle was hit, which pushed him into the car stopped on Tarl-ton Drive. He said that he never saw Hayes’ vehicle prior to the collision and did not realize what had happened until after it occurred. He could not explain why he failed to see Hayes’ vehicle, as he could see the eastbound traffic while he was stopped in the median. Further, he estimated that he could see approximately two hundred yards down College Avenue in the direction of Interstate 49 while he was stopped in the median.

Officer Jones testified that the left turn from College Avenue onto Tarlton Drive was controlled by a yield sign. She stated that Covey first told her that he never saw Hayes’ vehicle, but later said that he saw it, but misjudged the distance ^between them. From the marks left by the collision, she determined that Covey’s vehicle had crossed one and a half lanes before being hit in the outer-most eastbound lane. Jones stated that she did not believe that Hayes ever saw Covey’s vehicle prior to impact. If she had, she stated that Hayes would have tried to brake, which she did not think she had done. She further noted that both parties should have had a clear view of the other prior to the accident.

After reviewing the evidence, we find that a question of fact exists as to whether Hayes was negligent in failing to see that Covey was crossing her lane. The evidence reveals that Covey had nearly crossed the outer eastbound lane of College Avenue prior to the impact and that Hayes should have seen him while he was in the median and after he started across the lane. As a genuine issue of material fact exists, the trial court erred in finding that Covey was solely at fault in causing this accident. Accordingly, the judgment of the trial court is reversed and the matter is remanded for further proceedings.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and the matter is remanded for further proceedings. The costs of this appeal are assessed to the plaintiff-appellee, Stephanie Hayes.

REVERSED AND REMANDED.


text:
    SUCCESSION OF Betty Deville Sharp GARLINGTON.
    No. 06-426.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Guy 0. Mitchell, III, Ville Platte, LA, for Defendants/Appellees, Hazel West De-ville, Betty Deville Sharp Garlington, Anne Jean Ballard, Charles Don Deville, Patsy Deville Cloud.
    Richard W. Vidrine, Ville Platte, LA, for Appellant, David Garlington.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

hThe defendant, David Garlington, appeals the trial court’s judgment finding that a subsequent testament by the decedent, Betty Deville Sharp Garlington, revoked a prior 1991 testament which was written in his favor. For the following reasons, we reverse and remand for further proceedings.

FACTS

Betty Deville Sharp Garlington died on July 6, 2003, and was survived by her husband, David, her mother, Hazel West Deville, and her siblings, Anne Jean Ballard, Charles Don Deville, and Patsy De-ville Cloud. A Petition to Open Succession and Search for Will was filed by her mother and siblings. The petition acknowledged the existence of a September 30, 1980 and a September 21, 1982 testament and alleged that another testament may have been executed by the decedent. It further requested that Hazel be appointed administratrix of her succession. An order appointing Hazel administratrix and ordering the search for any wills executed by the decedent was issued by the trial court.

Thereafter, Hazel filed a rule to show cause alleging that an April 3, 1991 testament was located and that she and her son were both informed by David that a later testament had been executed by the decedent, which he refused to produce. Following a hearing on the rule to show cause, the trial court found that a testament was executed by the decedent subsequent to the three known testaments and ordered its production by David or his attorney. David then filed a motion for a new trial; Hazel filed a rule to show cause seeking to have the succession declared an intestate succession. Following a hearing, the trial court denied his motion for a new 12trial as being untimely and ruled that the decedent’s succession was an intestate succession. This suspensive appeal by David followed.

ISSUES

On appeal, David argues that the trial court erred in finding that his motion for new trial was untimely. He further argues that the trial court erred in finding that the decedent revoked her April 3, 1991 testament and that her succession was an intestate succession.

MOTION FOR NEW TRIAL

In his first assignment of error, David argues that the trial court erred in finding that his motion for new trial was submitted untimely. We agree.

Louisiana Code of Civil Procedure Article 1974 provides that the delay for applying for a new trial “shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.” Likewise, we held in Goodman v. Roberts, 549 So.2d 897, 898-99 (La.App. 3 Cir.1989):

Thus, one has seven days exclusive of legal holidays after judgment is signed within which to file a motion for a new trial. The delay period does not include legal holidays in accordance with La. C.C.P. art. 5059 as they are expressly excluded by the article. La.R.S. 1:55 provides in pertinent part that Saturdays and Sundays as well as enumerated holidays shall be considered as legal holidays for purposes of computation of time under La.C.C.P. art. 5059. Therefore, in counting the seven day delay period, Saturdays and Sundays are legal holidays and are not counted. Wiley v. Wiley, 459 So.2d 105 (La.App. 2nd Cir.1984); National American Bank of New Orleans v. Purvis, 407 So.2d 753 (La.App. 1st Cir.1981).
The judgment in this matter was signed on September 16, 1987. This date fell on a Wednesday. The seven day delay period commenced |sto run on September 17, 1987. Pursuant to La. C.C.P. art. 5059 and the Louisiana jurisprudence, Saturday the nineteenth and Sunday the twentieth are excluded. Therefore, the seventh day would have been September 24, 1987, which was well within the seven day delay period.

Notice of judgment was mailed to the parties by the clerk of court on February 24, 2005. Thus, the seven-day delay for applying for a new trial commenced on February 25, 2005, which was a Friday, and ended on March 7, 2005, a Monday, as Saturday, February 26; Sunday, February 27; Saturday, March 5, and Sunday, March 6 were legal holidays. As David’s motion was received by the clerk of court on March 7, 2005, it was timely. Accordingly, the trial court erred in finding that the motion was submitted outside the time delays provided by Article 1974.

REVOKED TESTAMENT

In his final assignments of error, David argues that the trial court erred in finding that Betty executed a subsequent testament which revoked her three prior existing testaments. He further argues that the trial court erred in finding that Betty’s succession was intestate.

In Succession of Claiborne, 99-2415, p. 3 (La.App. 1 Cir. 11/3/00), 769 So.2d 1267, 1268, writs denied, 00-3283, 00-3310 (La.2/16/01), 786 So.2d 98, 99, the court stated:

In Succession of Talbot, 530 So.2d at 1134-1135 [La.1988], the Louisiana Supreme Court held that when a will, shown to have been in the possession of or accessible to the deceased, cannot be found at the testator’s death a presumption arises that the testator has destroyed the will with intent to revoke it. The party seeking to establish the will may. rebut the presumption by clear proof of the following: (1) the testator made a valid will; (2) proof of the contents or substance.of the will; and (3) the will, though not found at testator’s death, was never revoked by the testator. Succession of Nunley, 224 La. 251, 69 So.2d 33 (1953). To prevail the proponent of a will bears the burden of establishing that the testator did not intend to revoke the will by destroying it. Succession of Talbot, 530 So.2d at 1135.

In its reasons for judgment, the trial court stated:

It is a fact that at the December 20, 2004 hearing this Court after listening to the testimony of the parties, found that Betty Deville Sharp Garlington had in fact executed another Will thereby re-yoking the Testament which had been executed by her on April 3, 1991. This Court was convinced that said new testament was based on Mrs. Garlington’s love and affection which she had for her niece, Tabatha Cloud. There is ample evidence even as Betty Deville Sharp Garlington lay in the hospital in her dying hours she was concerned about a Will wherein she had made bequests to niece (sic). Although this Will has never been located it is the opinion of this Court that it existed and by its existence at the time of her death it revoked all prior Wills and Codicils. Since it has been lost or destroyed it is the opinion of this Court that Betty Deville Sharp Garlington’s Estate is an Intestate Succession that should be divided or probated in accordance with the operation of Louisiana law relative to Intestate successions.

After reviewing the record, we find that the trial court erred in rendering judgment in favor of Hazel. Although the trial court held that Betty executed a subsequent testament, there is no evidence in the record to substantiate whether that testament was valid, as the transcript of the December 20, 2004 hearing is not in the record. Without clear proof of the testament’s validity, Hazel cannot rebut the presumption that Betty revoked the missing testament.

Moreover, the manner in which a testament may be revoked is provided for by La.Civ.Code art. 1607, which describes three ways in which a testator may revoke a testament: “(1) Physically destroys the testament or, has it destroyed at his direction; (2) So declares in one of the forms prescribed for testaments or in an authentic act; and (3) Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in his own handwriting.” In this instance, Hazel alleges that the revocation of the three known testaments occurred via |fithe second manner: “So declares in one of the forms prescribed for testaments or in an authentic act.” However, without the actual document in hand, once again there is no proof that it was a valid testament. Accordingly, we find that the trial court erred in finding that the decedent’s succession was intestate.

CONCLUSION

Based on the foregoing, the judgment of the trial court is reversed and the matter is remanded for further proceedings in accordance with this opinion. The costs of this appeal are assessed to the plaintiff-appellee, Hazel West Deville.

REVERSED.