author: STEWART, J.

text:
    Michael Ray CARR, Plaintiff-Appellant v. OAKTREE APARTMENTS and Cross Country Management, Inc., Defendants-Appellees.
    No. 45,514-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.

      Wiener, Weiss & Madison, Shreveport, LA, by R. Joseph Naus, Seth M. Moyers, for Appellant Michael Ray Carr.
    Stewart & Stewart by Jonathan M. Stewart, for Intervenor-Appellee Gibsland Bank & Trust Co.
    The Smitherman Law Firm, Shreveport, LA, by W. James Hill, III, for Defendants Appellee Oaktree Apartments.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   STEWART, J.

| Michael Ray Carr (“Carr”) appeals a judgment decreeing that a mortgage granted by Oaktree Apartments, A Limited Partnership (“O.A.”), in favor of Gib-sland Bank & Trust Company (“Gibsland”) in 2008 primes Carr’s judicial mortgage securing a 1999 judgment against O.A. Because we find that the public records provided sufficient notice to Gibsland of Carr’s judicial mortgage and that the trial court erred in ranking Gibsland’s mortgage ahead of Carr’s judicial mortgage, we reverse.

FACTS

In a 1992 suit styled “Michael Ray Carr v. Oaktree Apartments and Cross Country Managment, Inc.,” Carr sued for damages caused by the discharge of raw sewage from O.A. into a pond on his property. The facts are set forth in Carr v. Oake Tree Apartments, 34,539 (La.App.2d Cir.5/9/2001), 786 So.2d 230, writ denied, 2001-1682 (La.9/21/01), 797 So.2d 675, in which we affirmed the trial court’s judgment in favor of Carr.

On July 26, 1999, Carr filed the judgment rendered by the 26th Judicial District Court against “Oaktree Apartments” and CCM in the amount of $128,223.51, plus legal interest, in the mortgage records for Webster Parish. Thereafter, the judgment was twice amended to address errors in calculating the award of expenses and the application of legal interest to the award.

On April 20, 2000, Carr filed the “Amended Judgment” captioned “Michael Ray Carr v. Oak Tree Apartments and Cross Country Management, Inc.,” in the mortgage records. On August 2, 2000, Carr filed 12the “Corrected Amended Judgment” captioned “Michael Ray Carr v. Oake Tree Apartments and Cross Country Management, Inc.” in the mortgage records. Though the captions have different spellings of O.A., both refer to it as “Oaktree” in the judgment language.

On October 30, 2003, Carr filed a “Partial Release of Judgment” in the mortgage records. Carr granted the partial release as to two tracts of land owned by O.A., designated in the release as “Oaketree,” in exchange for a payment of $80,000. The partial release sets forth the three judgments filed in the mortgage records along with the registry, book, and page number for each filing. Recorded in the mortgage records along with the partial release on the same date and at the same time were a collateral mortgage and a collateral assignment of leases and rents given by O.A., designated as “Oaketree,” to Gibsland, apparently as security for financing the purchase of the property that was the subject of Carr’s partial release.

On July 31, 2008, O.A. purchased two tracts of land in the Smithwood subdivision in Webster Parish. Gibsland provided financing and obtained a mortgage on the property. On August 6, 2008, the cash sale deed was filed in the conveyance records and Gibsland’s collateral mortgage was filed in the mortgage records. Both refer to O.A. as “Oaketree.” However, the Webster Parish Recording Pages included with Gibsland’s closing documents have “Oaktree” as vendee on the cash sale deed and as mortgagor on the collateral mortgage.

|sOn April 21, 2009, Carr filed a “Notice of Reinscription” in the mortgage records. Then, on April 23, 2009, he filed a judgment granted on April 22, 2009, reviving his judgments against O.A.

Soon thereafter, Carr filed a motion for examination of the judgment debtor and for issuance of a writ of fieri facias to execute his judgment by seizing the Smith-wood property. Upon receiving a notice of the pending sheriffs sale of the Smithwood property, Gibsland filed a petition of intervention to enjoin the sale and to have its mortgage declared first in rank. Gibsland also contested the validity of Carr’s judgment against O.A., asserting that the judgment against “Oaktree Apartments” had not been properly reinscribed and that no judgment had ever been rendered against “Oaketree.”

At the hearing on September 29, 2009, Gibsland called Melanie McCullough, the attorney who rendered the title opinion in connection with O.A.’s purchase of the Smithwood property. McCullough testified that she was engaged by Irene Desa-dier on behalf of O.A. for the title work. McCullough rendered the title opinion on July 31, 2008, to Gibsland. The cash sale deed and mortgage were executed that same day. After the filing of the cash sale deed and mortgage in the conveyance and mortgage records on August 6, 2008, McCullough’s office forwarded the closing documents to Gibsland. In addressing her title examination, McCullough testified that she searched the Louisiana Secretary of State’s website and found a listing for “Oaketree Apartments.” McCullough stated that Desadier confirmed |4that “Oaketree” was the business name. McCullough then conducted an online search of the Webster Parish mortgage records using “Oaketree” to check for any liens or judgments that would prevent Gib-sland from obtaining a first ranking mortgage. She found no judgment under the name “Oaketree.” On cross-examination, McCullough testified that she did not ask Desadier whether there were any outstanding judgments against O.A., nor did Desadier mention any judgments. McCullough also testified that she had no involvement in the 2003 transaction between O.A. and Gibsland.

The parties stipulated to the testimony of R.O. Machen, Gibsland’s closing officer in connection with the loan to O.A. for the Smithwood property. According to the stipulation, Gibsland required a first mortgage on the property, received the closing documents from McCullough’s law firm, and made the loan relying on those documents. Machen had no personal knowledge of any prior judgment that would affect the property.

The trial court framed the issue as whether Carr’s judicial mortgage was valid as to a third party who relies on the public records when through some error the judgment debtor’s name was not listed properly in the judgment. The trial court found that McCullough’s search of the public records under the correct name “Oaketree” revealed no mortgages, judgments, or liens in that name. Because Carr’s judgments were not in the name “Oaketree,” the trial court concluded that Carr’s judicial mortgage was not effective as to Gibsland as a first ranking mortgage. After judgment was rendered in favor of Gibsland declaring its mortgage to be first in rank ahead of Carr’s judicial mortgage, Carr appealed.

1,.DISCUSSION

Carr raises two issues on appeal. First, he argues that the trial court erred in failing to apply former La. R.S. 9:2728 and in finding his judicial mortgage to be ineffective as to Gibsland because of the variations in the spelling of O.A.’s name in the judgments. Second, he argues that the trial court erred in failing to find that the partial release filed in the mortgage records provided sufficient notice of his judicial mortgage to Gibsland. This matter requires us to determine whether Carr’s judicial mortgage is effective as to third persons and whether it ranks ahead of Gibsland’s subsequently filed mortgage.

Creditors’ claims are ranked based on the priority of their registry in the appropriate public records. Three Rivers Farm Supply, Inc. v. Webber, 617 So.2d 1220 (La.App. 3d Cir.1993). When Carr filed the judgments against O.A. in the mortgage records, the public records doctrine was set forth at La. R.S. 9:2721 et seq. Acts 2005, No. 169, effective July 1, 2006, added, amended, revised, and repealed numerous provisions relating to the recordation of documents in the mortgage and conveyance records. At present, the public records doctrine is generally set forth at La. C.C. art. 3338 et seq. Under the public records doctrine, a third person need only look to the public records to determine adverse claims. Voelkel v. Harrison, 572 So.2d 724 (La.App. 4th Cir. 1990), unit denied, 575 So.2d 391 (La.1991). The primary purpose of the public records doctrine is the protection of third persons from unrecorded interests. Cimarex Energy Co. v. Mauboules, 2009-1170 (La.4/9/10), 40 So.3d 931; Camel v. Waller, 526 So.2d 1086 (La.1988). Because it does not create rights but rather denies the effect of certain rights unless they are recorded, the public records doctrine is referred to as a negative doctrine. Id.

The public records doctrine provides that an instrument involving immovable property shall be effective against third persons only from the time it is filed for registry in the parish where the property is located. See La. C.C. art. 1839; La. C.C. art. 3338; La. R.S. 9:2721(A), repealed by Acts 2005, No. 169, § 8, eff. July 1, 2006. Third persons are deemed to have constructive knowledge or notice of the existence and contents of recorded instruments affecting immovable property. McCurdy v. Bloom’s Inc., 39,854 (La. App.2d Cir.6/29/05), 907 So.2d 896; Voelkel v. Harrison, supra.

Though not directly applicable to the issues before us, guidelines for determining when a recorded instrument places a third party on notice that further inquiry about a property title or description is called for are instructive for determining what constitutes sufficient notice of an adverse claim in the public records. Jurisprudence states:

Where a recorded instrument has language that fairly puts a third person on inquiry as to the title and he does not avail himself of the means and facilities at hand to obtain knowledge of the true facts, he is to be considered as having bought at his own peril.

| g Voelkel, 572 So.2d at 727, and cases cited therein. Availing oneself of the “means and facilities at hand” means examining any necessary public records. Id.

Additionally, an inaccurate or faulty description of real property in a mortgage or deed may suffice as notice to third parties if the description is “adequate to enable the court to locate and identify the property with certainty, and if it is not so inaccurate or faulty as to be misleading.” Id., and cases cited therein.

These guidelines indicate that errors in a recorded document do not automatically preclude the effectiveness of the document against third persons. The issue is whether a recorded document provides “sufficient notice” to a third party. Id. Determinations concerning the sufficiency of notice in the public records must be decided on a case-by-case basis. Id. Such determinations are factual.

The record shows that Carr filed the initial judgment against O.A. in the mortgage records on July 26,1999, and subsequently filed the amended judgment, the corrected amended judgment, and the 2003 partial release. Of particular interest to this court in reviewing the record and arguments of counsel is the partial release, which was filed under the name “Oaketree Apartments” as mortgagor. The partial release sets forth Carr’s judgment, amended judgment, and corrected amended judgment as well as the registry, book and page numbers indicating where these documents are recorded in the mortgage records.

1 ^McCullough testified that she did a computer search of the mortgage records using the name “Oaketree” and came across no judgment listed in that name. However, McCullough’s testimony does not explain why she neither found nor examined the partial release filed in the mortgage records under the mortgagor name “Oaketree.” Even though McCullough did not examine the partial release, a third person examining the public records is held to have constructive notice of the existence and contents of recorded instruments affecting immovable property. The partial release pertains to a judicial mortgage that affects immovable property owned by O.A. and future property upon acquisition by O.A. See La. C.C. art. 3303. As such, the judicial mortgage that was the subject of the partial release would affect the Smithwood property. The fact that the partial release was indexed under the mortgagor name “Oaketree” should have alerted McCullough to examine the recorded document to determine whether it pertained to a judgment against O.A. that could be enforced against the Smith-wood property. Examination of the partial release would have then provided notice to McCullough of Carr’s judicial mortgage.

McCullough testified that she was engaged by Irene Desadier on behalf of O.A. to do the title examination in connection with O.A.’s purchase of the Smithwood property. McCullough prepared a title opinion and issued it to Gibsland, who then relied on it to close on the loan to O.A. Though Gibsland asserts that it had no prior notice of Carr’s judicial mortgage against O.A., the record belies its assertion. The record shows that Carr granted the 2003 partial release the day before O.A. granted |flGibsland a “Collateral Assignment of Leases and Rents” and a “Collateral Mortgage” over the property against which Carr released his claim. All three documents were then filed in the public records on the same date (October 30, 2003) and at the same time (10:45:54 AM). In light of the obvious connection between the partial release and the financing provided by Gibsland to O.A. in 2003, Gibsland’s argument that it had no notice of the partial release or of Carr’s judicial mortgage is dubious. Reliance on Ma-chen’s stipulated testimony to show Gib-sland’s „ lack of knowledge is misplaced. The stipulation established only that Ma-chen had no personal knowledge of any prior judgment.

The partial release was filed in the mortgage records under “Oaketree,” the very named used by McCullough in her examination of the mortgage records. As third persons, McCullough and Gibsland are deemed to have constructive knowledge of the existence and contents of recorded instruments involving immovable property. The partial release clearly sets forth Carr’s recorded judgments against O.A. and establishes the existence of his judicial mortgage. The judicial mortgage burdens future property upon acquisition by the judgment debtor. La. C.C. art. 3303. As such, it burdens the Smithwood property upon acquisition by O.A. The existence of the partial release in the public records provided sufficient notice to Gib-sland of Carr’s judicial mortgage affecting property owned by O.A.

110We find that the trial court’s failure to consider the import of the partial release in determining whether Gibsland had notice of Carr’s judicial mortgage was manifest error. The trial court erred in ignoring the partial release and focusing only on the issue of whether errors in the spelling of O.A. rendered Carr’s judicial mortgage ineffective as to Gibsland or second in rank as to its mortgage.

We further find that the trial court erred in failing to apply the applicable law governing name variations in mortgages. The public records laws address the effectiveness as to third parties of recorded instruments that have variations in a party’s name. Former La. R.S. 9:2728, which was in effect when Carr’s judgments were recorded but was repealed by Acts 2005, No. 169, stated:

A. A conventional or collateral mortgage shall not be deemed inferior and subordinate to another security device solely by reason of:
(1) Its inclusion of, or failure to contain, the middle name or initial of the mortgagor; or
(2) The use of any reasonable variation of the mortgagor’s name, including but not limited to initials or abbreviations for the mortgagor’s given names.
B. A mortgage certificate by a clerk of court to determine if an immovable is burdened with any encumbrance shall include a search of the public records for a variation by middle name or initial of the owner’s recorded name.

Of specific relevance in this statute is the language that a mortgage shall not be deemed inferior or subordinate to another security device because of the use of any reasonable variation of the mortgagor’s name.

In When Act 2005, No. 169 repealed R.S. 9:2728, it enacted La. C.C. art. 3353, effective July 1, 2006, which states:

A recorded instrument is effective with respect to a third person if the name of a party is not so indefinite, incomplete, or erroneous as to be misleading and the instrument as a whole reasonably alerts a person examining the records that the instrument may be that of the party.

Carr filed suit against “Oaktree Apartments.” The captions of the initial judg-merit, the amended judgment, and the corrected amended judgment referred to Oaktree, Oak Tree, and Oake Tree, respectively. However, the language of each judgment referred only to “Oaktree.” The defendant, O.A., has never contested the validity of Carr’s judgments against it based on the various spellings of its name. In fact, included in the record before us is a post-trial memorandum on behalf of O.A. from the initial litigation between Carr and O.A. in which O.A.’s counsel refers to “Oaktree Apartments” as being the correct name. This is not a case in which the wrong party or a nonexistent party was sued. Rather, this a case in which incorrect spellings have apparently been used for a party’s name throughout the course of litigation. This was done by both Carr and O.A. Therefore, the mistake is not solely attributable to Carr.

We observe that the Webster Parish Recording Pages included in the closing documents forwarded by McCullough to Gibsland name “Oaktree,” |12rather than “Oaketree,” as the vendee on the cash sale deed for O.A.’s purchase of the Smithwood subdivision property and as the mortgagor on the collateral mortgage. A printout from the Secretary of State’s website showing “Oaketree Apartments” as the registered name also shows that its general partner goes by the name “Oaktree.” These observations demonstrate the close similarity of the names and the fact that persons associated with O.A. apparently use similar spellings for closely related business entities. We cannot say whether this is to avoid or create confusion. McCullough’s search of the Secretary of State’s website should have alerted her to search the mortgage records under both “Oaketree” and “Oaktree.”

We find that the names Oaktree, Oak Tree, and Oake Tree as used in the captions of the judgments are clearly reasonable variations of Oaketree and are not so indefinite, incomplete, or erroneous as to be misleading. Under both La. R.S. 9:2728 and La. C.C. art. 3358, Carr’s judgments are effective as to third persons. Because the trial court erred in failing to apply former R.S. 9:2728 or La. C.C. art. 3353, its factual conclusion that Carr’s judicial mortgage ranks second to Gibsland’s mortgage is manifestly erroneous.

We note that Gibsland asserted that no judgment has ever been rendered against “Oaketree.” This is akin to a collateral attack on Carr’s judgments against O.A. However, no basis exists for a collateral attack due to misspellings of O.A.’s name. The supreme court has stated, “No principle of law has received greater and more frequent sanction, or is more 113deeply imbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio.” Nethken v. Nethken, 307 So.2d 563, 565 (La.1975).

Lastly, the record shows that Carr timely reinscribed his judgment in accordance with La. C.C. art. 3362 by filing a notice of reinscription on April 21, 2009, within 10 years of the date of the judgment. It also appears from the record that Carr timely revived his judgment against O.A. in accordance with La. C.C.P. art.2031. The ex parte motion for revival was signed by the trial court on April 22, 2009, and recorded in the mortgage records on April 23, 2009.

For all these reasons, we find that Carr’s judicial mortgage is valid as to Gib-sland, and that it is first in rank ahead of Gibsland’s mortgage.

CONCLUSION

The judgment of the trial court is vacated, and judgment is rendered in favor of Michael Ray Carr finding that his judicial mortgage ranks first ahead of Gibsland’s mortgage. Costs are assessed against Gibsland.

REVERSED AND RENDERED.

      . All subsequent references to the mortgage records mean the Webster Parish mortgage records.

      . The recording page certifies that a document has been filed. It sets forth the name of the person who filed the document; the names of the first parties to the document; the type of document and its index; its file (registry), book, and page number; and the date and time recorded.

      . Desadier is an owner of O.A.

      . R.S. 9:2721(A) stated:
      A. No sale, contract, counter letter, lien, mortgage, judgment, surface lease, oil, gas or mineral lease, or other instrument of writing relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated. Neither secret claims or equities nor other matters outside the public records shall be binding on or affect such third parties.

      . The recording pages show that the partial release, assignment, and mortgage were received from Merritt Chastain for filing. This appears to be the same name as one of the witnesses to the assignment and mortgage.

      . Section 9 of Act 2005, No. 169, addresses the effect of the new laws on previously recorded instruments and states in relevant part:
      Nothing in this Act shall be deemed to diminish the effect of, or render ineffective, the recordation of any instrument that was filed, registered, or recorded in the conveyance or mortgage records of any parish before the effective date of this Act. Any instrument that is filed, registered, or recorded before the effective date of this Act, that is not given the effect of recordation by virtue of existing law, shall be given such effect on the effective date of this Act that it would have if it were first filed on that effective date.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Freggie D. MACK, Appellant.
    No. 45,552-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.

      James Edward Beal, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Madeleine Slaughter-Young, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and LOLLEY, JJ.
   BROWN, Chief Judge.

| defendant, Freggie D. Mack, pled guilty to two counts of attempted second degree murder and one count of possession of cocaine with intent to distribute. The trial court sentenced defendant to 38 years at hard labor without the benefit of parole, probation or suspension of sentence on each count of attempted second degree murder and to five years at hard labor, the first two of which were to be served without benefit of parole, probation or suspension of sentence, on the possession of cocaine with intent to distribute charge. The sentences were ordered to run concurrently with credit for time served. Defendant now appeals his convictions for attempted second degree murder. He asked that “the judgment below should be reversed and a conviction of two counts of aggravated battery be substituted therefore.” For the following reasons, we affirm.

Facts

On June 25, 2009, the state filed a bill of information charging defendant with two counts of attempted second degree murder and one count of possession of cocaine with intent to distribute. Defendant and the state entered into a plea agreement whereby defendant would plead guilty to all three counts and in exchange the state would not file a multiple offender bill. During the Boyldn hearing on October 13, 2009, defendant freely and voluntarily entered a guilty plea on all three counts.

The factual basis presented during the plea colloquy indicated that after taking PCP defendant became agitated with his mother, he retrieved a handgun and shot her and his child. When the court asked where the victims were shot, the assistant district attorney and an unidentified officer 12in the court stated that defendant’s mother had been shot once in the left breast, twice in the abdomen and once in the leg, and his son had been shot once with the bullet entering through the right side of his body and exiting through the left and grazing his arm.

Defendant confirmed the conduct described, but when he was asked by the trial court whether he believed he was in fact guilty of attempted second degree murder, defendant answered “No, sir.” After conferring with his attorney and having the definitions regarding attempt and second degree murder read to him, defendant indicated that he understood the charges against him. The trial court again asked defendant whether he was pleading guilty because he was in fact guilty of the charged offenses; this time defendant answered in the affirmative. After his constitutional rights to a trial by jury, against self-incrimination and compulsory process were fully explained to defendant and had been waived by him, the trial court again asked defendant if he wished to maintain his guilty pleas because he was in fact guilty. Defendant again answered in the affirmative. At this point, the trial court accepted defendant’s guilty plea, ordered a pre-sentence investigation and set the matter for sentencing on January 5, 2010.

At sentencing, the trial court reviewed the circumstances of defendant’s crime and his criminal and social history as reflected in the pre-sentence investigation. The trial court also heard from various people on defendant’s behalf. After considering the Article 894 factors, the trial court sentenced defendant.

| aDiscussion

Defendant argues that the factual basis provided during the plea colloquy was insufficient to support his convictions of attempted second degree murder. Specifically, he argues that because the record reflects his use of the hallucinogenic drug PCP prior to the commission of the offenses “no court could have concluded that he had the specific intent to kill his victims.”

In order to convict a defendant of attempted second degree murder, the state must prove beyond a reasonable doubt that the defendant had the specific intent to kill. State v. Bishop, 01-2548 (La.01/14/03), 835 So.2d 434. Specific intent need not be proved as a fact, but may be inferred from the circumstances and the actions of defendant. La. R.S. 14:10(1); State v. Kahey, 436 So.2d 475 (La.1983); State v. Murray, 36,137 (La. App.2d Cir.08/29/02), 827 So.2d 488, writ denied, 02-2634 (La.09/05/03), 852 So.2d 1020.

Voluntary intoxication can constitute a defense in cases where specific intent is a necessary element. La. R.S. 14:15(2). It is, however, an affirmative defense, and the burden is on defendant to prove by a preponderance of the evidence that he was in fact intoxicated at the time of the offense. State v. Hall, 43,920 (La. App.2d Cir.02/25/09), 4 So.3d 295, writ denied, 09-0691 (La.12/11/09), 23 So.3d 911.

A plea of guilty normally waives all non-jurisdictional defects, including insufficiency of the evidence. State v. Crosby, 338 So.2d 584 (La.1976); State v. Kennedy, 42,850 (La.App.2d Cir.01/09/08), 974 So](2d 203. A valid guilty plea relieves the state of the burden of proving guilt and waives a defendant’s right to question the merits of the state’s case and the factual basis underlying the conviction, as well as appellate review of the state’s case against defendant. State v. Hardy, 39,233 (La. App.2d Cir.01/26/05), 892 So.2d 710. Except in the case of an Alford plea, a trial court is not required to ascertain a factual basis for the crime prior to accepting a guilty plea. Kennedy, supra. However, doing so provides a method by which the trial court can test whether the pleas were voluntarily and intelligently entered.

In the instant case, during the Boykin hearing defendant’s counsel and the state recited a significant factual basis for each offense. The record contains strong evidence of actual guilt as to the offenses charged in the challenged pleas, thereby providing a means by which the trial court could test whether or not the pleas were intelligently entered. Based upon the foregoing, the trial court properly inquired into and investigated the factual bases for the guilty pleas in light of defendant’s temporary and vague assertion of innocence. The record supports the trial court’s finding that the pleas were intelligently entered.

15While defendant’s claim of voluntary drug use raises the possibility of a defense of lack of a specific intent (intoxication) as to the attempted second degree murder charges, he waived such an affirmative defense by pleading guilty. Further, the mere assertion by his attorney that defendant was under the influence of an intoxicating substance at the time of the offense does not negate his admission of guilt or create grounds by which to attack the sufficiency of the evidence.

Regardless, the record evinces that defendant’s guilty plea was validly entered. Therefore, he is precluded from raising on appeal any issue regarding whether there was sufficient evidence for his convictions.

Conclusion

For the foregoing reasons, defendant’s convictions and sentences are affirmed.

      . The "best interest” or Alford plea, which derives from the United States Supreme Court case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), is one in which the defendant pled guilty while maintaining his innocence. In that case, the Supreme Court ruled that a defendant may plead guilty, without forgoing his protestations of innocence, if "the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant!,] ... especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage.” Id., 400 U.S. at 31, 91 S.Ct. at 164. In a case involving an Alford plea, the record must contain "strong evidence of actual guilt.” Id., 400 U.S. at 38, 91 S.Ct. at 167. State v. McMillion, 42,124 (La.App.2d Cir. 06/20/07), 961 So.2d 546.

      . We note that the record reflects a post-Miranda confession in which the defendant admitted that he retrieved the gun from his dresser and shot his mother because she would not let him leave the house. He admitted that immediately after the shootings, he hid the gun under his mother’s mattress. Before calling the police, he asked his mother to say that someone else had shot her. These factors suggest guilty knowledge in the immediate aftermath of the offense. However, they were not recited to the trial court during the plea colloquy.


author: GASKINS, J.

text:
    In re Interdiction of George R. CLEMENT.
    No. 45,454-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.

      Charles R. Joiner, for Plaintiff-Appellant Elizabeth C. Brown.
    Hallack Law Firm, West Monroe, LA, by William H. Hallack, Jr., Dennis W. Hallack, for Defendant-Appellee, George Ray Clement and Intervenor-Appellee, Mary McCoy Clement.
    Before GASKINS, CARAWAY and PEATROSS, JJ.
   GASKINS, J.

hThe plaintiff, Elizabeth Leigh Clement Brown, appeals from a trial court ruling that granted summary judgment and dismissed her petition for interdiction of her father, George R. Clement. Mr. Clement and his wife, who intervened in the interdiction proceedings, answered the appeal, claiming that Ms. Brown had filed a frivolous appeal. For the reasons set forth below, we affirm the trial court judgment dismissing the interdiction proceedings. We also deny the request for frivolous appeal damages.

FACTS

Based upon the pleadings, we glean the following facts. Mr. Clement is an elderly gentleman who is at least 84 years old and lives in Choudrant, Louisiana; over the last few years, he has experienced serious health issues. He is currently married to Mary McCoy Clement. He has six adult children, including Ms. Brown, who is an attorney. It does not appear that Mrs. Clement is the mother of any of Mr. Clement’s children.

On September 8, 2009, Ms. Brown filed a petition seeking a full interdiction of her father. She requested that she be named as curatrix and that one of her sisters, Barbara Clement Landes, be designated as undercuratrix. In an affidavit attached to the petition, Ms. Brown asserted that she was recently advised that her father suffers from Lewy body dementia, a progressive non-curable disease with an average life expectancy of five to seven years. She stated that Mrs. Clement told her that she intended to place Mr. Clement in the Louisiana War Veterans Home in Jackson, Louisiana. However, Ms. Brown and two of her brothers live in Ouachita Parish; therefore, she prefers to place Mr. Clement in a facility in |2West Monroe where she claims he would receive better care for his dementia.

As requested by Ms. Brown, the trial court granted a judgment of temporary full interdiction and appointed her and her sister, respectively, as curatrix and under-curatrix. An attorney was appointed to represent Mr. Clement and a preliminary interdiction hearing was set for September 15, 2009. The judgment provided that the temporary interdiction would terminate on that date. By agreement, the parties subsequently moved the hearing to September 24, 2009, agreeing to maintain the judgment of temporary interdiction until then.

On October 26, 2009, Mrs. Clement filed a petition of intervention. She asserted that as her husband’s primary caregiver, she believed that he was consistently able to make and communicate his own reasoned decisions as to his care and property. Alternatively, if the trial court deemed that interdiction was appropriate, she requested that she be appointed curatrix pursuant to the provisions of La. C.C.P. art. 4561(C)(1).

On the same date, Mr. Clement filed an answer in which he adopted the allegations of his wife’s petition of intervention. He likewise requested that, should interdiction be ordered, his wife be named as curatrix but that none of his children be appointed as undercurator. He also filed a motion for summary judgment, requesting that the petition for interdiction be dismissed as it was not supported by medical or other competent evidence sufficient to carry the plaintiffs clear and convincing burden of proof that lathe defendant was unable to consistently make and communicate decisions as to the care of his person and property.

In support of his motion for summary judgment, Mr. Clement submitted affidavits from himself, Mrs. Clement, and Dr. Robert V. Blanche, who is board-certified in psychiatry and neurology. Dr. Blanche stated that he treated Mr. Clement while he was hospitalized in the geriatric psychiatric unit of Baton Rouge General Hospital from September 3 to 26, 2009. When first admitted, Mr. Clement appeared to be very depressed and confused, suffering symptoms of Parkinson’s disease and experiencing visual hallucinations. Several months before, another doctor had diagnosed Mr. Clement with major depression with psychotic features, post-traumatic stress disorder, and possible early dementia. However, Dr. Blanche concluded that Mr. Clement was suffering from Lewy body dementia and adjusted his medications. After about 10 days, Mr. Clement improved considerably in all areas — his cognitive function improved, his depression lessened, and his Parkinson’s symptoms largely resolved.

In his affidavit, Dr. Blanche noted that after the interdiction proceedings were initiated, Mr. Clement was adamantly opposed to any of his children having control over his person or his property. The doctor also observed that Mrs. Clement was a competent caregiver who was “clearly devoted to her husband.” He opined that as long as Mrs. Clement was willing to seek some outside assistance, her husband would be able to continue living at home with her. Dr. Blanche further opined that at the time of his discharge from the hospital, Mr. Clement was able, on a | .(Consistent basis, to make sound and reasonable decisions about the care of his body and his estate.

In their affidavits, Mr. and Mrs. Clement stated that he is able to make and communicate his own reasoned decisions about care of his person and property and that she is his primary caregiver. Both stated that he did not wish to be interdicted and that if he is interdicted, he did not wish any of his children to assume any control over his person or property. Additionally, both stated that none of his children have been involved in his life for “many years” and that they all refused to attend his 80th birthday party despite being invited.

Also submitted in support of Mr. Clement’s motion for summary judgment was an affidavit from attorney Carlton Jones, III. He stated that on September 15, 2009, Mr. Clement executed a general durable power of attorney and a health care power of attorney in favor of Mrs. Clement. Mr. Jones stated that he spent two hours with Mr. Clement prior to the signing of the documents and that he had no question whatsoever that Mr. Clement possessed the capacity to execute them.

On October 27, 2009, Ms. Brown filed an amended and supplemental petition for interdiction. Among other things, she requested that Dr. Aruna Gullapalli be appointed to conduct an independent examination of Mr. Clement, noting that she had previously treated him.

In opposition to the motion for summary judgment, Ms. Brown filed affidavits from two of her sisters and a brother-in-law. Rebecca Clement stated that Mrs. Clement told her on September 7, 2009, as to Mr. Clement’s |scondition and placement, that “if he doesn’t know you, it doesn’t matter where he is.” Barbara Clement Landes stated that on September 1, 2009, Mrs. Clement told her that she was trying to get a power of attorney from Mr. Clement but would have to “catch him on a good day.” She further stated that on September 2, 2009, Mrs. Clement told her that she was going to place Mr. Clement in the war veterans home because it was less expensive than a nursing home. In his affidavit, Jim Landes, Mrs. Landes’ husband, stated that in July 2009, Mr. Clement was “adamantly resistant” to Mrs. Clement acting on his behalf due to his medical condition. He also stated that on October 12, 2009, Mr. Clement said he did not understand his medical condition.

Ms. Brown also filed a certified copy of a “petition to rescind contract” filed by Mrs. Clement in May 2009 in a lawsuit in which she sought to rescind Mr. Clement’s purchase of a membership in a hunting club. In the petition, Mrs. Clement asserted that her husband was “an Alzheimer’s patient, bereft of his reason, and without legal capacity to contract.”

Dr. Gullapalli, a board-certified psychiatrist who had previously treated Mr. Clement, executed an affidavit in which she stated that she had seen him on November 2, 2009. She attested that she first saw him in November 2008, at which time he was admitted to a hospital with confusion, hallucinations and depression. He was diagnosed with dementia with depression at that time. He made significant improvement during his hospitalization; his confusion and hallucinations cleared. When Dr. | fiGuIlapalli saw him on an outpatient basis on January 7, 2009, he was significantly better. She noted that he subsequently had two hospital admissions. When she saw him for a follow-up appointment on November 2, 2009, he was “much better” and oriented. His hallucinations and paranoia had resolved, and his cognition, attention and concentration were all better. She stated that she discussed the interdiction matter with him and that he did not want any of his children controlling his financial or medical decisions. Dr. Gulla-palli opined that Mr. Clement was competent to make his own decision on those matters.

A hearing was held on November 12, 2009. Based upon the affidavits from the two doctors stating that Mr. Clement was able to take care of his own affairs, the trial court granted the defendant’s motion for summary judgment, dismissing the matter with prejudice. Costs were assessed against the plaintiff. Judgment was signed on November 19, 2009.

Ms. Brown appealed the trial court judgment. Mr. and Mrs. Clement filed an answer to the appeal, contending that the plaintiff was pursuing a frivolous appeal. They cited numerous deficiencies in the interdiction proceedings, including her failure to provide any medical evidence to support her claims that Mr. Clement needed to be interdicted and her abandonment of the motion for new trial. They requested damages and attorney fees.

^DISMISSAL OF INTERDICTION

Summary Judgment

Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate. King v. Illinois National Insurance Company, 2008-1491 (La.4/3/09), 9 So.3d 780. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. King v. Illinois National Insurance Company, supra. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

On the motion for summary judgment, the burden of proof is on the mover. La. C.C.P. art. 966. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then the mover may merely point out to the court the absence of factual support for one or more elements essential to plaintiffs claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material facts remain. La. C.C.P. art. 966(C)(2); Fletcher v. Wendelta, Inc., 43,866 (La.App.2d Cir.1/14/09), 999 So.2d 1223, writ denied, 2009-0387 (La.4/13/09), 5 So.3d 164. If the | «plaintiff fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Fletcher, supra.

Interdiction

The rules governing interdiction are found in La. C.C. arts. 389 et seq., and La. C.C.P. arts. 4541 et seq. A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means. La. C.C. art. 389. The petitioner in an interdiction proceeding bears the burden of proof by clear and convincing evidence. La. C.C.P. art. 4548.

Discussion

In his motion for summary judgment, Mr. Clement sought dismissal of his daughter’s petition to interdict him. In support of his motion, among other evidence, he submitted the affidavits of two board-certified psychiatrists who opined that he was able to consistently make reasoned decisions regarding the care of his person and property. At this point, Mr. Clement had shown a lack of factual support for the interdiction and demonstrated that Ms. Brown would be unable to satisfy her evidentiary burden of proof at trial. Pursuant to the interdiction law of this state, she was obliged to prove by clear and convincing evidence that Mr. Clement was unable to care for his person or property. Nothing in the affidavits submitted by Ms. Brown contradicted the medical evidence given by Dr. [9Blanche and Dr. Gullapalli, both of whom unequivocally stated that, based upon their recent examinations of Mr. Clement, he did not require interdiction. In particular, Dr. Blanche described how most of Mr. Clement’s symptoms were resolved by the administration of the proper medications after his condition was reevaluated.

Like the trial court, we are compelled to conclude that summary judgment is appropriate in the instant case. Accordingly, we affirm the granting of summary judgment in favor of Mr. Clement and the dismissal of Ms. Brown’s interdiction petition -with prejudice.

FRIVOLOUS APPEAL

La. C.C.P. art. 2164 specifies that the appellate court may award damages for a frivolous appeal. This provision is penal in nature and is to be strictly construed. Pratt v. Louisiana State Medical Center in Shreveport, 41,971 (La. App.2d Cir.2/28/07), 958 So.2d 876. An appeal will not be deemed frivolous unless it is taken solely for delay, fails to raise a serious legal question, or counsel does not seriously believe in the proposition of law he is advancing. Appeals are favored and appellate courts are reluctant to impose damages for frivolous appeals. On those rare occasions when such damages are awarded, the amounts are modest and may consist of an amount representing a reasonable attorney fee award for answering and defending the appeal. Pratt v. Louisiana State Medical Center in Shreveport, supra.

| mThe record does not show that this appeal was taken solely for delay or that the plaintiff did not seriously believe in her position. Damages for frivolous appeal are not warranted.

CONCLUSION

We affirm the trial court ruling which granted summary judgment in favor of the defendant/appellee, George R. Clement, and dismissed the petition seeking to interdict him. We further deny the request for frivolous appeal damages set forth in the answer to the appeal. Costs of this appeal are assessed against the plaintiff/appellant, Elizabeth Leigh Clement Brown.

AFFIRMED.

      . On November 25, 2009, Ms. Brown filed a motion for new trial. However, she filed a motion for appeal on December 2, 2009, before the motion for new trial could be resolved. When the case lodged at this court, we ordered the parties to show cause whether the appeal was premature due to the lack of disposition of the motion for new trial. In her response, Ms. Brown conceded that the filing of her motion for appeal served as a waiver and/or abandonment of the motion for new trial. Accordingly, this court deemed the motion for new trial waived and allowed the appeal to proceed.

      . We note that most of the incidents mentioned in the affidavits submitted by Ms. Brown in opposition to the motion for summary judgment occurred before Mr. Clement's condition drastically improved following his hospitalization under Dr. Blanche’s care.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Deterrious Dewayne BLACKSON, Appellant.
    No. 45,525-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.
    Louisiana Appellate Project, Lafayette, LA, by G. Paul Marx, for Appellant.
    Charles Rex Scott, II, District Attorney, Tommy Jan Johnson, R. Bennett Lang-ford, III, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   DREW, J.

|, Deterrious Blackson was convicted of violating La. R.S. 14:95.1, possession of a firearm by a convicted felon. Having been sentenced to 12 years at hard labor without benefits, he now appeals. We affirm in all respects.

FACTS

On December 24, 2008, the Shreveport Police Department received a telephone call from a concerned citizen reporting that a light-skinned black male wearing a blue jersey with the number 9 on it was firing a weapon while standing on the corner at a DeSoto Street address. Officers Monique Robinson and Germane Babers responded to the call.

Officer Robinson canvassed the area of the complaint and noticed a black male fitting the description given in the call except that he wore a gray hoodie on top of the jersey. That individual was the defendant in this case, Deterrious Black-son. Blackson was standing on the corner with a group of men and as Officer Robinson approached, he began to walk quickly away. Officer Robinson stated that when she saw Blackson the first time, she did not see him holding a shotgun. Instead, “When he was walking he was walking like this with his hands in his pocket and kind of, arms kind of snug to his body like this (indicating) in his pocket.” Officer Robinson, ordered him to stop, but he ran and hid behind a house. No one else ran away from the police. Both officers gave chase.

At some time during the chase, Blackson discarded his gray hoodie, after which Officer Babers arrested him and read him his Miranda warnings.

1 ¡While Babers was processing Blackson, Robinson retraced the trail of the chase, finding a sawed-off shotgun with five shells in it, one being expended.

While he was in the patrol car, and after having been read his rights, Blackson initially denied knowledge of shots being fired. However, after being shown the recovered weapon, Blackson told Babers that a man had tried to sell him the gun and that he had fired it once earlier in the day. The officers ran an identification check on Blackson, thereby discovering that he was a convicted felon.

This instant offense occurred less than 15 months after Blackson had pled guilty to possession of a Schedule II controlled dangerous substance, cocaine, a felony.

Blackson’s motion to suppress the statement, made in the patrol car shortly after his arrest, was denied. Blackson’s jury trial was held on November 3, 2009. The state presented testimony of three police officers.

Corporal Skylar Van Zandt, whose duties included fingerprint analysis, established Blackson was the same person convicted of possession of a Schedule II controlled dangerous substance in October of 2007.

Officers Robinson and Babers testified to the facts at the scene, as noted previously. Blackson was found guilty of possession of a firearm by a convicted felon. A motion for post verdict judgment of acquittal was denied. Blackson was sentenced to 12 years at hard labor without benefit of probation, parole, or suspension of sentence. This appeal followed.

1 ¿DISCUSSION

La. R.S. 14:95.1 is entitled “Possession of a firearm or carrying concealed weapon by a person convicted of certain felonies.” It states in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary ... or any violation of the Uniform Controlled Dangerous Substances Law which is a felony ... to possess a firearm or carry a concealed weapon.
B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.
C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
(1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
D.For the purposes of this Section, “firearm” means any pistol, revolver, ri-fíe, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.

Blackson cites three reasons that his conviction should be overturned. Each argument is a permutation of a sufficiency argument.

Dominion or control of the firearm

Blackson argues that no one testified about seeing him in possession of a firearm. The shotgun was found behind a house, near where the chase |4began. Blackson further points out that none of the other men present at the scene was questioned by the police. This deficiency, with the presumption of innocence, leads him to suggest that a reasonable view of the case could be that one of the men at the scene dropped the gun, a possibility that was not eliminated.

The state argues that every element of the crime was proven at trial.

Corporal Van Zandt identified Blackson as the same person who was convicted of possession of a Schedule II controlled dangerous substance, well within the 10-year period provided by La. R.S. 14:45.1.

Officer Robinson testified that the concerned citizen who called concerning the matter gave a detailed description of the shooter being a light-skinned black male wearing a blue jersey with the number 9 on it. The officer did indeed find the light-skinned black male wearing a blue jersey with the number 9 on it. Robinson testified that this man was the only member of the group who ran away. The officer found the sawed-off shotgun behind the first house that Blackson ran to when he fled from the police. The gun had five rounds in it, one of which had been fired.

Officer Babers apprehended the suspect, who was still in the blue jersey with the number 9 on it. Officer Babers arrested him, read him his rights, and heard him make the inculpatory statement that he had fired the gun earlier in the day. Therefore, every element of the crime of possession of a firearm by a convicted felon was proven at the trial in November of 2009.

[fin State v. Evans, 29,675 (La.App.2d Cir.9/24/97), 700 So.2d 1089, writ denied, 1997-2942 (La.1/9/98), 705 So.2d 1121, this court stated that in order to convict a defendant of possession of a firearm by a convicted felon, the state must prove beyond a reasonable doubt: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (8) absence of the 10-year statutory period of limitation; and (4) general intent to commit the offense.

Defendant admitted firing the gun, putting the dominion argument to rest.

Conviction solely upon an inculpatory statement

Blackson argues that:

• his inculpatory statement about firing the gun earlier that day was not sufficient to establish guilt in the absence of independent evidence;
• the record lacks extrinsic proof corroborating his confession; and
• there was no proof from any other source regarding his potential dominion and control of the shotgun; there was no way the jury could legally be allowed to convict him.

The state rebuts this assertion by noting these items in the record:

• the presence of the weapon in the path he used for escape;
• his futile attempt to avoid the police;
• the weapon, together -with the one spent shell in the chamber; and
• his corroborating statement that he had fired the weapon that day.

|fiWas the firearm operable?

Blackson argues that there was no evidence that the firearm was operable. La. R.S. 14:95.1(D) defines “firearm” as “any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.” Blackson claims that the addition of Section D in 2009 legislatively overrules prior holdings that the state did not need to prove that the firearm was operable.

The state refutes this novel argument by pointing to the fact that there was a spent shell in the chamber of the shotgun along with four live rounds in the magazine. Further, Blackson made the statement that he had fired the shotgun, albeit earlier in the day.

Therefore, the element of the crime requiring possession of a firearm was met, and the argument has no merit.

Considering each of these arguments, we are reminded that our law on review for sufficiency of the evidence is well settled.

|7In this case, the evidence presented to the jury by the state is indeed circumstantial. Blackson was convicted on the testimony of the police, the evidence they recovered, and the introduction of his statement.

The sufficiency of the evidence in this ease, considered in a light most favorable to the prosecution, indicates that a reasonable juror could have found proof of guilt beyond a reasonable doubt. Further, no reasonable hypothesis of innocence was presented to the jury. The appellant’s argument that the evidence is insufficient to support the guilty verdict is without merit. The state proved Blackson’s guilt beyond a reasonable doubt.

1 «DECREE

The conviction and sentence of defendant, Deterrious Dewayne Blackson, are AFFIRMED.

      . When she saw him, he was wearing a gray hoodie over the jersey.

      . Flight indicates consciousness of guilt and is a circumstance from which a jury may infer guilt. State v. Gatti, 39,833 (La.App.2d Cir. 10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.4/17/06), 926 So.2d 511. Flight is the consummate act of evasion. See Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

      . 2009 La. Acts 154, § 1.

      . 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. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). 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. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/06/09), 21 So.3d 297. The appellate 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. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). 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. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La. App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.
      An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.5/4/07), 956 So.2d 607; State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. When the conviction is based on circumstantial evidence, such evidence must exclude any reasonable hypothesis of innocence. La. R.S. 15:438. See State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. The appellate court reviews the evidence in the light most favorable to the prosecution and determines whether an alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. State v. Rosiere, 488 So.2d 965 (La.1986).


author: ROLAND L. BELSOME, Judge. BONIN, J.,

text:
    STATE of Louisiana v. Charles FRANKLIN.
    No. 2010-K-0564.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 11, 2010.

      Kerry P. Cuccia, Executive Director, Lance Unglesby, Price Quenin, Capital Defense Project of Southeast Louisiana, New Orleans, LA, for Charles Franklin.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for State Of Louisiana.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge, ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

| TPefendant Charles Franklin filed a supervisory writ in connection with the Magistrate Commissioner’s grant of the State’s motion for a buccal swab to be taken from Mr. Franklin. For the reasons that follow, we grant the writ, reverse the order, and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

The Defendant, Charles Franklin, was arrested on January 11, 2010, pursuant to an arrest warrant. The case arises out of a January 7, 2010 shooting in which three individuals were killed and one individual was wounded. In the supporting affidavit for the arrest warrant, Detective Timothy Bender affirmed that a witness informed him that he observed Mr. Franklin and Dwayne Johnson changing out of their clothing and into clothing that was black. On March 15, 2010, the court conducted a preliminary examination. At the hearing, Detective Bender testified that, pursuant to a search warrant for a nearby residence, he recovered clothing similar to what Mr. Franklin was observed wearing and subsequently removing on the night of the offense.

|2On March 22, 2010, the State filed a motion to obtain a buccal swab from Mr. Franklin for DNA (deoxyribonucleic acid) analysis, and the defense filed a memorandum in opposition. After a hearing, the court granted the motion on April 5, 2010, and the defense noticed its intent to seek supervisory writs. The matter was set for oral argument in this Court on May 11, 2010.

DISCUSSION

The defense argues that the State has not established probable cause for taking a buccal swab from Mr. Franklin, because the State does not allege the existence of an unknown DNA profile with which to compare Mr. Franklin’s DNA, as the recovered clothing has yet to be tested. Additionally, the defense submits that the State improperly filed an unsworn motion rather than filing an application a search warrant for the buccal swab.

The Louisiana and Federal constitutions prohibit unreasonable searches and seizures. U.S. Constitution Amend., art. IV; La. Const, art. I, § 5. The Louisiana Supreme Court recognized in State v. Lee that “[according to the United States Fifth Circuit, ‘[i]t is undisputed that the collection of a saliva sample for DNA analysis is a search [requiring a warrant] implicating the Fourth Amendment.’ ” State v. Lee, 05-2098, p. 16 (La.1/16/08), 976 So.2d 109, 128 (quoting Kohler v. Englade, 470 F.3d 1104, 1109 (5th Cir.2006)). In Lee, the State filed a subpoena \ -.duces tecum for the defendant’s buccal swab rather than applying for a search warrant; consequently, the Lee Court noted that “we observe the subpoena in the present case did not include the sworn supporting affidavit [that] a search warrant is required to contain.” Lee, 05-2098, p. 20, 976 So.2d at 125 (quoting La. Const, art. I, § 5 (“No warrant shall issue without probable cause supported by oath or affirmation. ...”)).

Nevertheless, the Court held that “even assuming a subpoena duces tecum may constitute the functional equivalent of a search warrant in some circumstances, the application at a minimum must rest upon a showing of probable cause, not simply the ‘reasonable grounds’ required by [La. C.Cr.P.] art. 66.” Lee, 05-2098, p. 20, 976 So.2d at 125 (emphasis added). Accordingly, “the application must contain within its four corners the facts establishing the existence of probable cause.” Id. The Lee Court ultimately concluded that “the collection of defendant’s DNA constituted a Fourth Amendment ‘search’ that would require probable cause, a sworn supporting affidavit, and the issuance of a proper search warrant.” Lee, 05-2098, p. 30, 976 So.2d at 131 (emphasis added).

Similarly, in State v. Hankton, this Court quashed the State’s search warrant for a buccal swab of the defendant, finding that the affidavit failed to demonstrate that an unidentified DNA profile had been found either at the crime scene or pursuant to the investigation. State v. Hankton, 2009-1532, unpub. (La.App. 4 Cir.) (01/05/10). This Court relied in part upon Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) and Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984), in finding that the |4State failed to demonstrate that evidence of the crime would be discovered by the buccal swab. Id. We also relied upon State v. Lee, supra, and Schmerber v. California, 384 U.S. 757, 86 5.Ct. 1826, 16 L.Ed.2d 908 (1966), to determine that the proper procedure for obtaining a DNA sample is through a search warrant supported by probable cause. Id.

In this case, the State simply filed an unsworn motion; therefore, it is not the functional equivalent of a search warrant under these particular facts and circumstances. See State v. Lee, 05-2098, p. 80, 976 So.2d at 131. Even assuming arguen-do that the functional equivalent of a search warrant could suffice for a body-invasion search, the State’s motion in this case failed to set forth “facts establishing the existence of probable cause.” State v. Lee, 05-2098, p. 20, 976 So.2d at 125. The State has not developed a DNA profile from the seized clothing; therefore, the State has not established that the DNA to be seized from Mr. Franklin, standing alone, could “constitute evidence tending to prove the commission of an offense” pursuant to La.C.Cr.P. art. 161 A(3). Accordingly, we find that, as was the case in State v. Hankton, the commissioner did not have a “substantial basis for concluding that a [buccal swab] search would uncover | .^evidence of wrongdoing.” Hankton, supra; see also Illinois v. Gates, 462 U.S. at 236, 103 S.Ct. 2317. Therefore, the court erred in finding probable cause.

Should the State develop probable cause in the future to obtain a buccal swab from Mr. Franklin, it is free to file an application for a valid search warrant. On April 27, 2010, Mr. Franklin was indicted by a Grand Jury; thus, he will remain in State custody. Furthermore, Mr. Franklin’s DNA profile will remain unchanged with the passage of time.

CONCLUSION

For the foregoing reasons, the Defendant’s writ is granted. The trial court’s order granting the State’s motion for a buccal swab of Charles Franklin is hereby reversed, and the matter is remanded for proceedings consistent with this opinion.

WRIT GRANTED; REVERSED AND REMANDED.

BONIN, J. Concurs With Additional Reasons.

BONIN, J.,

concurs with additional reasons.

hi join the majority opinion but write separately to express additional reasons.

A search for Mr. Franklin’s DNA would be unreasonable on the basis of the prosecution’s unsworn motion for a buccal swab, without, at the very least, probable cause and a sworn supporting affidavit. See La. C.Cr.P. art. 162; State v. Lee, 05-2098, p. 30 (La.1/16/08), 976 So.2d 109, 131. The supporting affidavit for a warrant seeking a person’s DNA must show that the DNA to be seized “[m]ay constitute evidence tending to prove the commission of an offense.” La.C.Cr.P. art. 161 A(3); See also Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (“There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities, or contraband — between the item to be seized and criminal behavior.”)

Because the Louisiana Supreme Court in Lee did not specifically require a search warrant in all instances of DNA collection, I stress that the prosecution has not established sufficient probable cause to justify the procurement of Mr. Franklin’s DNA. Probable cause sufficient to issue a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has | ¡reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” Lee, supra, 976 So.2d at 122.

Probable cause sufficient to issue a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Lee, supra, 05-2098, p. 14, 976 So.2d at 122; State v. Johnson, 408 So.2d 1280, 1283 (La.1982). A reviewing court’s task in evaluating the validity of a search warrant is to insure that, under the totality of the circumstances, the issuing magistrate has a “substantial basis” for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We review the magistrate’s probable cause determination by the same standard, because although there was no search warrant issued in this matter, we must determine whether this State’s unsworn motion nevertheless amounts to the “functional equivalent” of a search warrant, especially concerning the underlying probable cause.

The prosecution contends that its un-sworn motion to obtain Mr. Franklin’s DNA provides a reasonable basis for a valid search because it is the “functional equivalent” of a search warrant. The State finds support for its position in language from State v. Lee, at 125-126, in which the Louisiana Supreme Court held that “a search warrant (or its functional equivalent)” is required before a DNA sample may be taken. The Fourth Amendment states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV; see also La. Const, art. I, § 5. While the court in Lee did not 1 ¡¡specifically require that a search warrant be the precise procedural vehicle in every case where DNA is sought, the procedure used must still afford the defendant his Fourth Amendment protections to constitute the functional equivalent of a warrant.

This case entails a search involving an intrusion beyond the body’s surface. Discussing the constitutional implications of such a search, the United States Supreme Court explained in Schmerber v. California, 384 U.S. 757, 769-770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966):

The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search, (emphasis supplied)

Here, the prosecution has not made a showing, beyond an unconfirmed guess, that evidence of the crime of first-degree murder will be found by obtaining the defendant’s DNA. The prosecution has not developed a DNA profile from the seized clothing and therefore has not established that the DNA to be seized from Mr. Franklin, standing alone, could “constitute evidence tending to prove the commission of an offense.” See La.C.Cr.P. art. 161 A(3).

At the motion hearing before the magistrate which resulted in the court order allowing the State to obtain the defendant’s saliva, the prosecuting attorney similarly denied the necessity of obtaining a search warrant. “[W]e don’t need a search warrant,” the prosecutor argued, “The form is immaterial. If it’s a court order, search warrant, whatever form you use is immaterial. It just happens to be a court order that we used.” As this case involves a defendant’s constitutional rights, particularly his right to be free of unreasonable searches and seizures under the Fourth Amendment and his right to due process of law under the Fifth Amendment, it is worth remembering that

14these Amendments should receive liberal construction, so as to prevent stealthy encroachment upon or “gradual depreciation” of the rights secured by them, by “imperceptible practice of courts or by well-intentioned, but mistakenly overzealous executive officers.”

Gouled v. United States, 255 U.S. 298, 303-304, 41 S.Ct. 261, 65 L.Ed. 647 (1921).

In Lee, the State filed a subpoena duces tecum for the defendant’s buccal swab rather than applying for a search warrant; consequently, the Lee Court noted that “we observe the subpoena in the present case did not include the sworn supporting affidavit a search warrant is required to contain.” Lee, 05-2098, p. 20, 976 So.2d at 125. (quoting La. Const, art. I, § 5 (“No warrant shall issue without probable cause supported by oath or affirmation ... ”)). Under any circumstance, a credible person reciting facts to establish probable cause for issuance of a warrant must swear to those facts. See La.C.Cr.P. arts. 162 and 162.1 (providing for sworn affidavits or sworn oral testimony, respectively). The formal requirements for a warrant (or its functional equivalent) have simply not been met here.

Further, because the possible evidentia-ry value of the defendant’s saliva pertains to his unchanging DNA, there exists no attendant risk that the desired evidence may disappear over time, as was a concern in Schmerber. Mr. Franklin’s DNA profile will stay the same. Moreover, because Mr. Franklin is charged with a capital crime, he will remain in jail without bail, lessening further any risk that evidence may be lost. Because the prosecution has not demonstrated, outside of its |fiown conjecture, that there “was a fair probability that contraband or evidence of a crime” would be found in Mr. Tucker’s DNA, I agree that the magistrate court erred in ordering the buccal swab. See Illinois v. Gates, 462 U.S. at 288.

      . Dwayne Johnson is a co-defendant.

      . The brackets with the inserted "requiring a warrant" language are in the Louisiana Supreme Court's original opinion.

      . The Lee court also cited to cases in which a DNA sample had been found to constitute a search:

        [S]ee also Padgett v. Donald, 401 F.3d 1273, 1277 (11th Cir.2005) ("The Commissioner does not dispute that the statutorily required extraction of saliva for DNA profiling constitutes a ‘search’ within the meaning of the [Fourth] Amendment.”); Groceman v. U.S. Dep’t of Justice, 354 F.3d 411, 413 (5th Cir.2004) ("The extraction of blood from a prisoner to collect a DNA sample implicates Fourth Amendment rights.”); Schlicher v.(NFN) Peters, I & I, 103 F.3d 940, 942-43 (10th Cir.1996) ("It is agreed that the collection, analysis and storage of blood and saliva ... is a search and seizure within the meaning of the Fourth Amendment.”); In Re Grand Jury Proceeding, 455 F.Supp.2d 1281, 1282 (D.N.M.2006) (saliva samples may not be compelled by a grand jury on the mere chance that desired evidence might be obtained).

        State v. Lee, 05-2098, p. 16 (La.1/16/08), 976 So.2d 109, 123.

      . The Court further noted that "[t]he State’s attempt to file a subpoena duces tecum through the use of La.Code Crim. Proc. art. 66 was a circumvention of the constitutional mandates for the issuance of a search warrant based upon probable cause.” State v. Lee, 05-2098, p. 30, 976 So.2d at 131 (emphasis added).

      . In Illinois v. Gates, the Court also noted that ”[a]n affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

      . In State v. Lee, 05-2098, pp. 15-16, 976 So.2d at 122-23, the Louisiana Supreme Court cited the premise in Schmerber v. California that a search warrant based upon probable cause was necessary for a body-invasion search, such as a saliva sample:
      In Schmerber v. California, 384 U.S. 757, 761-64, 86 S.Ct. 1826, 1830-32, 16 L.Ed.2d 908 (1966), the Supreme Court assumed that a search warrant resting on probable cause issued by a neutral magistrate would be required for all body-invasion searches; in that case a blood sample was used to determine blood-alcohol content. Id., 384 U.S. at 770, 86 S.Ct. at 1835 ("Search warrants are ordinarily required for dwellings and, absent an emergency, no less could be required where intrusions into the human body are concerned.”).

      . La.C.Cr.P. art. 161 pertains to searches conducted in connection with a valid search warrant. As previously noted, the State did not obtain a valid search warrant in this case.

      . Although Article 161 A begins with "[e]x-cept as authorized by Article 163.1,” we understand that the exception applies to the limitation of "any thing within the territorial jurisdiction of the court” as distinguished from the provision of Article 163.1 which allows for execution “any place the person is found.” (emphasis supplied)

      . Or, stated another way:
      It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

        Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 29 L.Ed.2d 564, quoting Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746.

      . As Mr. Franklin is charged with first-degree murder, see La. R.S. 14:30, he would not be admitted to bail unless he can show that proof is not evident or the presumption is not great that he is guilty of the offense. See La.C.Cr.P. art 331 A and C(2).


author: ROBERTS, J.,

text:
    BAY POINT HIGH AND DRY, L.L.C., Appellant v. NEW PALACE CASINO, L.L.C., Appellee.
    No. 2009-CA-01452-COA.
    Court of Appeals of Mississippi.
    Oct. 5, 2010.
    Rehearing Denied Nov. 2, 2010.

      William L. Guice III, attorney for appellant.
    J. Henry Ros, Gary A. Hemphill, attorneys for appellee.
    Before KING, C.J., ROBERTS AND CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Bay Point High and Dry, L.L.C. filed suit for negligence against New Palace Casino, L.L.C. in the Harrison County Circuit Court. New Palace filed a motion for summary judgment, which the trial court granted. Bay Point now appeals arguing that the trial court erred in granting the motion. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In August 2005, Bay Point operated a marina and dry dock at 169 5th Street, Biloxi, Mississippi. New Palace operated a two barge floating casino facility across Biloxi Bay just north of the western end of the Highway 90 bridge connecting Biloxi to Ocean Springs, Mississippi. On August 29, 2005, Hurricane Katrina made its landfall in Mississippi. The violent conditions of the storm caused one of the barges, the SportsZone, to come loose from its moorings, float across the bay, and allegedly strike Bay Point marina.

¶ 3. Bay Point originally brought this suit in the United States District Court for the Southern District of Mississippi. During the course of discovery in that suit the United States Court of Appeals for the Fifth Circuit held in an unrelated case that permanently moored gaming barges on the Mississippi coast were not “vessels” under federal law. Because there were no other issues that would give the federal courts jurisdiction, Bay Point voluntarily dismissed its claims.

¶ 4. On September 21, 2007, Bay Point filed a new complaint for negligence against New Palace in the Harrison County Circuit Court. Bay Point claimed that New Palace was liable for damages caused to its building due to New Palace’s negligence in failing to secure or move the barge, as well as being negligent for not complying with the regulations of the Mississippi Gaming Commission. After filing an answer to the complaint and additional discovery, New Palace filed a motion for summary judgment on March 24, 2009. On August 7, 2009, the trial court held a hearing on the motion for summary judgment. After hearing the arguments and reading the briefs of both parties, the trial judge granted summary judgment in favor of New Palace.

DISCUSSION

WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

¶ 5. When summary judgment is granted by a trial court, this Court is to use a de novo standard of review. Summary judgment should be granted “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 any material fact and that the moving party is entitled to a judgment as a matter of law.” This Court should view the evidence in the light most favorable to the non-moving party. “The moving party bears the burden of demonstrating there is no genuine issue of material fact.” The non-moving party cannot defeat a motion for summary judgment by mere general allegations or unsupported denials of material fact.

¶ 6. To prove a negligence claim, Bay Point must show (1) a duty or standard of care owed by New Palace to Bay Point, (2) a breach of that duty by New Palace, and (3) this breach proximately caused (4) the damage to the Bay Point building. “Duty and breach of duty are essential to finding negligence and must be demonstrated first.” If this Court finds that there is an issue of fact with any of these elements, then we must reverse the judgment granting summary judgment. Bay Point alleges that there are genuine issues of material facts as to whether New Palace was negligent in mooring its barge.

A. Duty

¶ 7. Both Bay Point and New Palace erroneously argue about the legal duty imposed by the Commission’s regulations. Bay Point argues that the Commission is not a legislative body and has no power to establish legal duties. They note that the supreme court has found that where there is no express language in the statute creating a legal duty then none is created. Bay Point further argues that the scope of the Commission’s power is limited to licensing concerns and that any duty created in the regulations is unenforceable. New Palace argues that the Legislature established the Commission and gave them the power to adopt regulations necessary to the public interest. Next they argue that the regulation is the appropriate standard of care because it is the only standard set by any governing body concerning the mooring systems of permanently moored casino barges. However, these arguments are off point as the trial court did not use the Commission’s regulations as the basis for its finding of what constituted New Palace’s duty.

¶8. The trial judge found that New Palace owed a duty to the owners of real property in close proximity to the casino to take reasonable measures to prevent foreseeable injuries and damages in the event of a hurricane. The supreme court has held that:

In analyzing an actor’s alleged negligence, this Court asks whether a duty exists and whether it has been breached. That is a question of law. But, “[t]he important component of the existence of the duty is that the injury is ‘reasonably foreseeable,’ ” and thus it is appropriate for the trial judge to decide.

Ordinary care does not require that the reasonable person anticipate an unusual or extraordinary event even if it is in the realm of possibility.

119. The trial court was correct in finding, as a matter of law, that New Palace owed a duty to owners in close proximity to take reasonable measures to prevent foreseeable injuries in the event of a hurricane. Further, the trial court was correct in finding that there is no genuine issue of material fact as to whether New Palace fulfilled that duty.

B. Breach

¶ 10. The trial court held that New Palace met their duty to take reasonable measures for foreseeable injuries when they complied with Mississippi Gaming Commission Regulation section II(B)(10). The pertinent language of regulation section II(B)(10) states that “cruise vessels utilized for gaming on the Mississippi Gulf Coast, in the Biloxi Bay[,] or in the Bay of St. Louis, that are not self-propelled, are to be moored to withstand a Category 4 Hurricane with 155 mile per hour winds and 15 foot tidal surge.” It is argued by Bay Point that there is significant evidence that the mooring system of the SportsZone did not meet this regulation. We disagree.

¶ 11. New Palace’s mooring system was designed by Gordon Reigstad, a licensed engineer in Mississippi. He stated in his affidavit that the design met and exceeded the standards in the regulation. The barge was actually designed to withstand an eighteen-foot-tidal surge. Bay Point’s own expert William Janowsky, although suggesting that the standards for storm surge should be doubled, acknowledged, that the designs met the regulation standards. Lastly, the record shows that the Commission reviewed and inspected the design of the mooring system. The Commission found that the mooring system met the regulation and granted New Palace a license. As a governmental body that has a duty to protect the public from harm, we find their determination to be strong proof that New Palace complied with the standards.

¶ 12. Since New Place built the mooring system to the standard the regulation set forth, and to exceed the effects of the worst hurricane on record in Mississippi at the time, Hurricane Camille, they met their duty to take reasonable measures for foreseeable injuries. Colonel Richard Henning, with the United States Air Force Reserve, reported that the storm surge near the location of the casino during Hurricane Camille was “on the order of thirteen to fifteen feet above sea level.” After Hurricane Camille it became foreseeable that a hurricane could generate a storm surge up to fifteen feet above sea level at Biloxi Bay. At the time Hurricane Katrina made landfall, there had not been a storm which had set the bar of foreseeability higher than fifteen feet. As mentioned above, the record is clear that the SportsZ-one was moored to withstand a fifteen-foot-storm surge, if not higher.

¶ 13. Bay Point also asserts that even if New Palace had met the standards in the regulation, they still had not taken all reasonable measures to prevent the SportsZ-one from coming loose. They claim that Treasure Bay, another casino in Biloxi, took additional, reasonable measures to ensure their barge did not come loose, which it did not. The duty New Palace owed to Bay Point only required that they use reasonable measures and did not require that they take additional measures for the unforeseen. Since we have already determined that they took reasonable measures, this argument is without merit.

¶ 14. The trial court also held that New Palace had established that Hurricane Katrina was an “Act of God.” It is clear that Hurricane Katrina was an unprecedented hurricane that was unforeseeable. Acts of God are defined as “events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them.” Further, “an ‘Act of God’ is not only one which causes damage, but one as to which reasonable precautions and/or the exercise of reasonable care by the defendant, could not have prevented the damage from the natural event.” The injury caused during the Act of God must be solely due to “natural causes without human intervention, which could not have been prevented by exercise of reasonable care and foresight.”

¶ 15. In 1969, Hurricane Camille hit the Mississippi coast with a force that was considered to be unforeseeable. Hen-ning stated in his report, which was submitted with the motion for summary judgment, that Hurricane Katrina was the most destructive tropical cyclone ever to hit the United States and that in terms of property damage, it “far exceeded” Hurricane Camille as the benchmark for natural disasters in Mississippi. The storm surge near New Palace’s location was approximately twenty-three-feet high. This was eight to ten feet higher than the storm surge that Hurricane Camille produced in the bay. Hurricane Katrina also produced the greatest amount of kinetic energy for a hurricane ever, which was four to five times more than the kinetic energy produced by Hurricane Camille. We cannot find that the trial court was wrong in finding that Hurricane Katrina was an “Act of God.”

¶ 16. We find that the trial court did not err in finding that there is no genuine issue of material fact as to whether New Palace breached its duty owed to Bay Point. Because there is no genuine issue of material fact as to whether New Palace breached its duty to Bay Point, the claim for negligence must fail, and summary judgment on this matter was proper.

C. Negligence Per Se

¶ 17. Bay Point claims that there is enough evidence to support a finding of negligence per se against New Palace for the damage to its property by violating United States Coast Guard regulations. Because of this, Bay Point contends that summary judgment for New Palace should not have been granted. To succeed in a negligence-per-se claim, Bay Point must prove that: (1) it is a member of the class sought to be protected under the statute; (2) its injuries were of a type sought to be avoided by the statute; and (3) the violation of the statute proximately caused or contributed to its injuries.

¶ 18. The Coast Guard has the statutory authority to set out regulations governing vessels located in navigable waters of the United States. This includes standards related to the mooring systems of permanently moored vessels (PMV). The Coast Guard laid out these standards in their Marine Safety Manual. After considering Bay Point’s argument, the trial court held that “even assuming that there were violations with regard to paperwork regarding the barge’s status as a PMV, those violations cannot be shown to have proximately caused the destruction of Bay Point.”

¶ 19. Bay Point argues that New Palace had a duty to have the SportsZone inspected and certified by the Coast Guard under these regulations. Bay Point claims that had the SportsZone been inspected, it is likely that the Coast Guard would have required more stringent and/or secondary restraints. The reasoning behind this is that during the inspection of the moorings, the Coast Guard would have considered local 100-year-storm winds and surge conditions. New Palace counters that they are only guilty of a clerical error for not filing all required paperwork with the Coast Guard regarding the status of the SportsZone as a PMV. New Palace argues that the Coast Guard does not test the strength of a mooring system in determining whether to grant a vessel PMV status, the Coast Guard simply makes sure that the vessel is immobilized and removed from navigation.

¶ 20. First, the plaintiff is a member of the class the statute meant to protect since they operate a business immediately adjacent to a navigable waterway. Next, the ■ statute was enacted, in part, to protect those businesses from damage by vessels on a navigable waterway. The third requirement — that there is a violation of a statute which is the proximate cause or contributed to injuries — is where the disagreement comes about.

¶ 21. It is clear and undisputed by New Palace that it violated the statute by not filling out the paperwork to receive its PMV status for the SportsZone. However, after reviewing the record, we find that there is no evidence to suggest that had New Palace correctly filed the paperwork to request a PMV status for the Sports Zone that the Coast Guard would not have granted it. The evidence shows that the mooring system of the SportsZone not only exceeded the Commission’s requirements, but also the previous highest storm surge at the SportsZone’s location created by Hurricane Camille. As such, this issue is without merit.

CONCLUSION

¶22. On the claim of negligence, Bay Point failed to put on significant evidence to show that there was a genuine issue of material fact. New Palace took reasonable steps in mooring its barge in light of the applicable regulations and foreseeable weather conditions of Biloxi Bay. We further find that there is no evidence presenting a genuine issue of material fact whether the failure of New Palace to obtain its PMV status with the Coast Guard for the SportsZone proximately caused damage to Bay Point. Accordingly, the judgment of the trial court granting summary judgment in favor of New Palace is affirmed.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR.

      . Russell v. Orr, 700 So.2d 619, 622 (¶ 8) (Miss.1997) (citing N. Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995)).

      . M.R.C.P. 56(c).

      . Univ. Of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 817 (¶ 8) (Miss.2006) (citing Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss.2004)).

      . Id.

      . Drummond v. Buckley, 621 So.2d 264, 267 (Miss. 1993) (citing Palmer v. Biloxi Reg’l Med. Ctr., 564 So.2d 1346, 1356 (Miss.1990)).

      . Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991) (citing May v. V.F.W. Post # 2539, 577 So.2d 372, 375 (Miss.1991)).

      . Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1143 (¶ 30) (Miss.2004).

      . Lyle, 584 So.2d at 399.

      . Rein, 865 So.2d at 1143 (¶ 29) (quoting Lyle, 584 So.2d at 399).

      . Ill. Cent. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333, 336 (1933).

      . Miss. Gaming Comm'n Reg. § II(B)(10).

        . McFarland v. Entergy Miss., Inc., 919 So.2d 894, 903 (¶28) (Miss.2005) (quoting Skandia Ins. Co. v. Star Shipping, 173 F.Supp.2d 1228, 1239 (S.D.Ala.2001)).

      . Id. (citations omitted).

      . City of Hattiesburg v. Hillman, 222 Miss. 443, 76 So.2d 368, 371 (1954).

      . Moore v. K & J Enters., 856 So.2d 621, 624 (¶ 5) (Miss.Ct.App.2003) (citing Brennan v. Webb, 729 So.2d 244, 249 (¶ 17) (Miss.Ct.App.1998)).

      . 33 U.S.C. §§ 1221, et seq. (2006).

      . 33 U.S.C. § 1225(a)(2) (2006).

      . Marine Safety Manual, Volume II, Section (B)(4)(I)(1).

      . 33 U.S.C. § 1225(a)(2).

      . Id.