text:
    FLORIDA DEPARTMENT OF CORRECTIONS, Appellant, v. Jason SCHWARZ and Public Employees Relations Commission, Appellees. Florida Department of Corrections, Appellant, v. David Warrilow and Public Employees Relations Commission, Appellees. Florida Department of Corrections, Appellant, v. Steven Hopkins and Public Employees Relations Commission, Appellees. Florida Department of Corrections, Appellant, v. Scott Stewart and Public Employees Relations Commission, Appellees. Florida Department of Corrections, Appellant, v. Charles Kraus and Public Employees Relations Commission, Appellees.
    Nos. 1D11-3287, 1D12-4130, 1D12-4131, 1D12-4132, 1D12-4133.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2012.

      Jennifer Parker, General Counsel, Rana Wallace, Assistant General Counsel, and Todd E. Studley, Assistant General Counsel, Tallahassee, for Appellant.
    Benjamin H. Yormak of Yormak Employment & Disability Law Group, Bonita Springs, for Appellee Jason Schwarz; Rhea P. Grossman of Rhea P. Grossman, P.A., Fort Lauderdale and James C. Casey, Law Offices of Slesnick & Casey, LLP, Coral Gables, for Appellees Steven Hopkins, Scott Stewart, Charles Kraus & David Warrilow; Suzanne M. Choppin, Staff Attorney for Appellee Public Employees Relations Commission.
   PER CURIAM.

AFFIRMED. See Bracey v. Dep’t of Children & Families, 764 So.2d 905, 905 (Fla. 5th DCA 2000) (“PERC was required to affirm the factual findings of negligence made by the hearing officer if such findings are supported by competent substantial evidence.”); Crawley v. Dep’t of Highway Safety & Motor Vehicles, 616 So.2d 1061, 1063 (Fla. 1st DCA 1993) (“The determination of whether appellant’s violation of policy was willful is a factual determination to be made by the hearing officer. PERC may not reject the hearing officer’s finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred.”).

BENTON, C.J., DAVIS, and MARSTILLER, JJ., concur.


source: Caselaw Access Project

author: GUIDRY, J. WHIPPLE, J.,

license: Public Domain

text:
    Henry T. STEWART, III and Patricia Lumbard v. RHODIA INCORPORATED, the ABC, EFG, and XYZ Corporation and/or Companies. Burk Jones, Sr., Individually and on Behalf of minor child, D’Antre B. Jones, Milton Bureau, Robert Patterson, Erma Dixon, Donald H. McLean and Grandrills Tennart v. Rhodia Incorporated. Benny Anderson, Jr.; Betty Thomas Anderson; Kedrick Thomas; Tom Thomas; Sylvia Harris; Willimena Harris; Quintessa Paynes, Individually and on Behalf of Kenneth Paynes; Frank Murray; Barbara Murray; and Penny Murray, Individually and on Behalf of Stephen Williams v. Rhodia Incorporated, Entergy Corporation, and Elliott Turbomachinery Company, Incorporated. Debra Dixon, Individually and on Behalf of her minor child, Dashana Dixon; Damien Dixon; Benjamin Walker; and Mable Walker v. Rhodia Incorporated.
    Nos. 2011 CA 0434, 2011 CA 0435, 2011 CA 0436, 2011 CA 0437.
    Court of Appeal of Louisiana, First Circuit.
    March 14, 2012.

      Edward J. Walters, Jr., Darrel J. Papil-lion, Michael Guy, Baton Rouge, LA, for Plaintiffs/Appellees Henry L. Stewart, III and Patricia Lumbard.
    Walter C. Dumas, Baton Rouge, LA, for Plaintiffs/Appellees Burk Jones, et al.
    Rebecca A. Cunard, Baton Rouge, LA, for Plaintiffs/Appellees Benny Anderson, Jr., et al.
    Frederick A. Stolzle, Jr., Baton Rouge, LA, for Plaintiffs/Appellees Debra Dixon, et al.
    Allison N. Benoit, Robert E. Dille, Gary A. Bezet, Barrye Panepinto Miyagi, Gregory M. Anding, Janice M. Culotta, Carol L. Galloway, Baton Rouge, LA, for Defendant/Appellant Rhodia Incorporated.
    John A. Braymer, Baton Rouge, LA, for Defendant/Appellant Entergy Corporation.
    A. Justin Ourso, III, Christopher D. Martin, David P. Borghardt, Baton Rouge, LA, for Defendant/Appellant Elliott Company.
    Before WHIPPLE, KUHN, GUIDRY, GAIDRY, and McDONALD, JJ.
   GUIDRY, J.

|sRhodia Inc. (Rhodia), The Elliott Company (Elliott), and Entergy Corporation (Entergy) appeal a class certification judgment in these consolidated suits arising from a chemical release at Rhodia’s Baton Rouge plant. For the reasons that follow, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On February 22, 1999, the Rhodia plant in Baton Rouge lost electrical power due to a problem at an Entergy facility and released a small amount of sulphur trioxide from a stack. The release began at approximately 2:30 a.m. and lasted approximately forty minutes.

The East Baton Rouge Parish community alert system activated sirens near the Rhodia plant, alerting areas within a one-half-mile radius of each siren as follows:

This is an emergency alert message from the East Baton Rouge Communications District. There has been a toxic release type of incident at Rhodia. Residents in the area are advised to shelter in place, move indoors, close all doors and windows, shut off all air conditioning and heating systems, and please do not use your telephone unless a personal emergency. Tune in to your local radio and T.V. for more infoi’mation.

The community alert system also sent a recorded telephone message to telephones in the alert area, stating: “This is the East Baton Rouge Parish Communications District, there has been a toxic gas release at Rhodia. We will keep you updated as further information is received.” Once the release was controlled, the sirens were activated with an “all clear” message, and an “all clear” message was also sent to telephones in the alert area.

As a result of the release, four different groups of plaintiffs filed putative class actions against Rhodia, Entergy, and Elliott, beginning with the Stewart action | ¿filed on February 23, 1999, and followed by the Anderson, Jones, and Dixon actions, which were subsequently consolidated with the Stewart action.

The trial court held a hearing to determine class action certification on June 22, 2010. Thereafter, on September 21, 2010, the trial court signed a judgment certifying this matter as a class action and delineating three subclasses:

Subclass One: Persons who experienced some exposure to the released chemicals in the plume or in the area of the plume.
Subclass Two: Persons who heard the warnings through the sirens, loudspeakers, or received a telephone call from the alert system and experienced some odor or other sensation of the presence of the chemicals.
Subclass Three: Persons who heard the sirens or loudspeakers, received a telephone call from the alert system or were contacted personally by Rhodia employees.

Rhodia, Elliott, and Entergy now appeal from the trial court’s judgment.

STANDARD OF REVIEW

A trial court’s decision to certify a class action is a two-step process. Therefore, appellate review of such decisions must also follow a two-step analysis. The trial court must first determine whether a factual basis exists for certifying the matter as a class action. These factual findings are subject to review by the appellate court pursuant to the manifest error standard. Singleton v. Northfield Insurance Company, 01-0447, p. 7 (La.App. 1st Cir.5/15/02), 826 So.2d 55, 60-61, writ denied, 02-1660 (La.9/30/02), 825 So.2d 1200. If the trial court finds that a factual basis exits for certifying the action, it then exercises its discretion in deciding whether to certify the class. This aspect of the judgment is reviewed pursuant to the abuse of discretion standard. Crooks v. LCS Corrections Services, Inc., 07-1901, p. 6 (La.App. 1st Cir.8/21/08), 994 So.2d 101, 108, writs denied, 08-2560, 08-2561 (La.1/9/09), 998 So.2d 725 and 726.

1 ^Unless a trial court committed manifest error in its factual findings or abused its discretion in deciding that class certification is appropriate, the appellate court must affirm the trial court’s determination. Crooks, 07-1901 at p. 6, 994 So.2d at 108. Further, in reviewing a trial court’s exercise of its discretion in certifying a class action, an appellate court should bear in mind the supreme court’s jurisprudential admonition to trial courts to err on the side of caution, in favor of maintaining the class action, because it is always subject to modification should later developments during the course of the trial so require. Boyd v. Allied Signal, Inc., 03-1840, p. 9 (La.App. 1st Cir.12/30/04), 898 So.2d 450, 456, writ denied, 05-0191 (La.4/1/05), 897 So.2d 606.

DISCUSSION

Louisiana Code of Civil Procedure article 591(A) sets forth the prerequisites for maintaining a class action and establishes that the use of the class action procedure is appropriate when:

1) The class is so numerous that joinder of all members is impracticable;
2) There are questions of law or fact common to the class;
3) The claims or defenses of the representative parties are typical of the claims or defenses of the class;
4) The representative parties will fairly and adequately protect the interests of the class; and
5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

All of the above elements must be present for an action to be properly certified as a class action. La. C.C.P. art. 591(B). The party seeking to maintain the class action bears the initial burden of prima facie proof of these elements. Boyd, 03-1840 at p. 10, 898 So.2d at 457. In determining whether these elements have been established, the court may consider the pleadings, affidavits, depositions, briefs, exhibits, and testimony presented at a certification hearing. Singleton, 01-0447 at p. 9, 826 So.2d at 62; Boyd, 03-1840 at p. 11, 898 So.2d at 457.

Class action certification is purely procedural. Therefore, the issue at a class certification hearing is whether the class action is procedurally preferable, not whether any of the plaintiffs will be successful on the merits of their claims. Hampton v. Illinois Central Railroad Co., 98-0430, p. 6 (La.App. 1st Cir.4/1/99), 730 So.2d 1091, 1093. Further, the determination of whether there is a proper class does not depend on the existence of a cause of action; a suit may be a proper class action and still be dismissed for failure to state a cause of action. Hampton, 98-0430 at p. 6, 730 So.2d at 1093.

Objectivity and Numerosity

A class definition provides the framework against which the court can apply the statutory requirements in order to determine whether a class action may be maintained. Clement v. Occidental Chemical Corporation, 97-246, p. 9 (La.App. 5th Cir.9/17/97), 699 So.2d 1110, 1114, writ denied, 97-2884 (La.1/30/98), 709 So.2d 718. A class must be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. Conrad v. Lamarque Ford, Inc., 08-673, p. 12 (La.App. 5th Cir.5/12/09), 13 So.3d 1154, 1162, writ denied, 09-1819 (La.11/6/09), 21 So.3d 310. The parties seeking certification must be able to establish a definable group of aggrieved persons based on objective criteria derived from the operative facts of the case. Conrad, 08-673 at p. 13, 13 So.3d at 1162. The requirement that there be a class capable of definition ensures that the proposed class is not amorphous, vague, or indeterminate. Clement, 97-246 at p. 9, 699 So.2d at 1114. Any subdivisions may be based upon 17geographical subgroupings, subgroupings by type of injury alleged, exposure, and other factors as may become apparent as a case management order is formulated, and the litigation progresses. Clement, 97-246 at p. 9, 699 So.2d at 1114.

In mass exposure tort cases, the determination of the issues of numer-osity and objectivity for class action certification is usually predicated upon proof of the geographic limits of potentially harmful exposure of the purported class. Boyd, 03-1840 at p. 12, 898 So.2d at 457-458. This court has previously recognized that “an integral part of the definition of the class to be certified is a determination of the geographic area of the class.” Hampton, 98-0430 at p. 7, 730 So.2d at 1094. Establishment of the geographic boundaries of a class action must be based on evidence in the record. Singleton, 01-0447 at p. 17, 826 So.2d at 66-67.

“Numerosity” requires that persons constituting the class are so numerous as to make joinder impracticable. This element is determined based upon the facts and circumstances of each individual case, and there is no set number above which a class is automatically considered so numerous as to make joinder impractical as a matter of law. Singleton, 01-0447 at p. 10, 826 So.2d at 62. Generally, a class action is appropriate whenever interested parties appear to be so numerous that separate suits would unduly burden the courts, and a class action would clearly be more useful and judicially expedient than the other available procedures. Crooks, 07-1901 at p. 7, 994 So.2d at 108.

In addition, this court has required that plaintiffs seeking certification meet a threshold burden of plausibility as a component element of a prima facie showing of numerosity. Boyd, 03-1840 at p. 11, 898 So.2d at 457. The burden of plausibility requires some evidence of a causal link between the incident and the injuries or damages claimed by sufficiently numerous class members. The prima facie showing need not rise to the level of proof by a preponderance of the evidence, as | swould be necessary to prevail on the merits. Boyd, 03-1840 at p. 12, 898 So.2d at 457.

At the class certification hearing in the instant case, two experts testified on behalf of the defendants. Dr. Paolo Zannet-ti, President of EnviroComp Consulting, Inc., was qualified as an expert in air pollution and air pollution modeling. Dr. Zannetti stated that as a result of a power outage to the Rhodia plant on February 22,1999, sulphur trioxide was released into the atmosphere, which, upon reacting with water vapor, produced sulphuric acid. This plume, according to Dr. Zannetti, subsequently traveled southwest due to winds coming from the North/Northeast. Based on a three-hour simulation, run every hour, Dr. Zannetti determined that the concentration levels within the plume ranged from 200 micrograms per cubic meter over a small area extending from the Rhodia plant over the Mississippi River to 10 to 20 micrograms per cubic meter over populated areas. Dr. Zannetti also ran a simulation using a thirty-minute interval, which had higher concentrations, but these concentrations were still well below the lowest level of concern for sul-phuric acid, which is 200 micrograms per cubic meter. Particularly, Dr. Zannetti determined that in populated areas, the concentration levels under both models were well below 200 micrograms per cubic meter.

Dr. Zannetti determined that based on the scientific laws of atmospheric diffusion and based on the models run, the contour lines of the plume are very clear in limiting the impact of the plume. Dr. Zannetti noted that there is always some uncertainty, between five to ten degrees, present in model results, but the basic result is that the plume had a limited cone of impact. According to Dr. Zannetti, it would be difficult for a person to smell any odor outside the contour of the plume, as the concentration level would have been lower than ten micrograms per cubic meter, and therefore, well below any odor threshold.

19Pr. Francis Weir, an expert in toxicology and industrial hygiene, also testified at the certification hearing. Dr. Weir concurred that the threshold level of concern is a concentration of 200 micrograms per cubic meter. Dr. Weir stated that according to the American Conference of Governmental Industrial Hygienists, a person can be exposed to 200 micrograms per cubic meter for eight hours and will not encounter a health deficit. Dr. Weir acknowledged that a person cannot smell pure sulfuric acid but can sense the presence of it, because it causes irritation, which the body interprets as though it were smelling it. However, this phenomena only occurs at a very high concentration level, ie., above 600 micrograms per cubic meter. Dr. Weir stated that a person exposed to 200 micrograms per cubic meter of sulfuric acid at ground level might sense the presence of some unusual, heavier than normal environment, but they would not have any irritation or smell from the material unless it were contaminated with some other product. Dr. Weir also stated that at a concentration of 20 micrograms per cubic meter at ground level, a person would not sense the presence of anything.

Dr. Weir stated that, based on the facts as presented, including the source of the release and the wind direction, and if the models have any veracity, then there is no reason to believe that people upwind of the Rhodia plant should have experienced anything as a result of this particular release, and that certainly, they did not sense the presence of the sulfuric acid, physiologically, as a result of the release.

The plaintiffs did not offer any expert testimony at the certification hearing, but rather, admitted into evidence a forensic meteorology report prepared by Dr. David Mitchell. Dr. Mitchell specifically stated that the purpose of his study was to determine the impact of the plant emission on the surrounding neighborhoods downwind of the plant. The results of Dr. Mitchell’s report are similar to those contained in the models simulated by Dr. Zannetti. Dr. Mitchell’s report depicts the l^plume as having moved southwest from the Rhodia plant over the Mississippi River. In his first model using regulatory values, which are standard values for normal operating conditions provided by Rhodia to the Louisiana Department of Environmental Quality, Dr. Mitchell showed a concentration impact below the 200 microgram per cubic meter threshold level of concern. In a second model using non-regulatory values, or values different from the normal operating procedures, Dr. Mitchell showed a slightly higher concentration impact of 400 micrograms per cubic meter, in the same small area extending over the Mississippi River as represented in Dr. Zannetti’s model. However, in both models, Dr. Mitchell showed concentrations ranging from 10 to 20 micrograms per cubic meter in populated areas, which are well below the 200 micrograms per cubic meter threshold.

Dr. Mitchell’s opinion, after reviewing both his and Dr. Zannetti’s modeling results, is that “non-zero” ground level concentrations of sulfuric acid occurred as a result of the release, and that when these concentration level contours were plotted on top of the area map of the region downwind of the release the modeling results showed that large areas of Baton Rouge were exposed to and impacted by the sulfur trioxide emissions and resulting sulfuric acid vapor carried downwind of the emitting source. Dr. Mitchell did not further elaborate on or qualify “exposed to” or “impacted by.” Further, Dr. Mitchell noted in his report that the air dispersion models did not account for variations in wind speed and wind direction, which could occur during the hourly averaging period; however, he offered no evidence and rendered no opinion as to an impact of sulfuric acid emissions upwind of the Rho-dia plant.

Plaintiffs also introduced thousands of claimant information forms detailing, among other things, the individual claimants’ locations at the time of the release and Intheir alleged injuries. Additionally, several named plaintiffs testified at the certification hearing. Henry Stewart, Toni Thomas, and Benny Anderson testified that they heard an unintelligible noise come over the loudspeaker in the early morning hours of February 22,1999. Toni Thomas, Benny Anderson, and Betty Anderson stated that they also encountered a foul smell. Henry Stewart stated that when he went outside his home at 6:00 or 6:30 a.m., he had a burning sensation in his eyes. All plaintiffs stated that they were frightened by the alarm. Additionally, Sheila Jones, an unnamed plaintiff, testified that she received an automated phone call that something was going on at the Rhodia plant. Ms. Jones stated that she was frightened when she received the phone call, because she did not know what was going on and had never received a phone call like that before. She did not hear an alarm or encounter any smell.

119Erma Dixon, another named plaintiff, was working at Formosa Plastics on the morning of the release. She estimated that she was less than one mile from the Rhodia plant. She first heard about the release from her sister, who called her at approximately 3:00 a.m. She was bewildered, and when she went back outside, she encountered an unusual fog, which was a little bit irritating. She stated that she felt anxious because she did not know what was going on at the time.

Plaintiffs also introduced into evidence the deposition testimony of Joanne Mor-eau, the Director of the Louisiana Department of Homeland Security. Ms. Moreau said three community alert system sirens were activated on the morning of the release, with each siren having a one-half mile radius and rotating 360 degrees. In addition, the community alert system initiated an auto-dial telephone system. Ms. Moreau stated that the call area was determined by guidelines set forth in a federal emergency response guide, which identifies the radius based on off-site impact. According to phone logs attached to her deposition, approximately 1,700 homes in the community surrounding Rhodia were contacted on the morning of the release.

Finally, plaintiffs introduced the deposition of Jerry Kring, the plant manager at Rhodia’s Baton Rouge facility at the time of the release. Mr. Kring acknowledged that Rhodia employees went out into nearby neighborhoods and distributed a letter to residents, notifying them of the release, informing them that air monitoring did not find anything that would cause a health concern, and stating that phone calls were made and sirens were activated strictly as a precautionary measure.

In certifying the instant class action, the trial court delineated three subclasses: (1) persons who experienced some exposure to the released chemicals in the plume or in the area of the plume, (2) persons who heard the warnings through the sirens, loudspeakers, or received a telephone call from the alert system and experienced some odor or other sensation of the presence of the chemicals, and (3) |1spersons who heard the sirens or loudspeakers, received a telephone call from the alert system, or were contacted personally by Rho-dia employees. The trial court stated in its reasons for judgment that the parameters for these subclasses are those persons within the plume distribution, those within a one-half mile radius of the sirensAoud-speakers that were activated, and those who received phone calls from the emergency communication system or were contacted personally by Rhodia employees.

However, from our review of the record, we do not find that the evidence presented at the certification hearing supports the trial judge’s designation of subclasses consisting of: (1) persons who experienced some exposure to the released chemicals in the plume or in the area of the plume; and (2) persons who heard the warnings through the sirens, loudspeakers, or received a telephone call from the alert system and experienced some odor or other sensation of the presence of the chemicals. First, with regard to the subclass consisting of persons who experienced some exposure to the released chemicals in the plume or in the area of the plume, the record demonstrates that the plume had a limited cone of impact, moving southwest from the Rhodia plant and over the Mississippi River. Erma Dixon was the only plaintiff within the 200 microgram per cubic meter concentration threshold, and as the plume moved southwest over the Mississippi River, the concentrations dropped to 10 to 20 micrograms per cubic meter over populated areas. All experts who testified at the hearing agreed that the lowest level of concern for sulphuric acid is 200 micrograms per cubic meter, and that the impact to populated areas downwind of the release was well below the 200 micrograms per cubic meter threshold. Dr. Weir further stated that while a person exposed to high levels of sulphuric acid, above 600 mierograms per cubic meter, may sense the presence of it and interpret it as a smell, a person exposed to 200 micrograms per cubic meter may | Msense some unusual, heavier than normal environment, but they would not have any irritation or smell from the material unless it is contaminated. Finally, Dr. Weir stated that at 20 micrograms per cubic meter at ground level, a person would not sense the presence of anything.

Further, though plaintiffs introduced the report of Dr. Mitchell, his findings are largely consistent with those of Dr. Zan-netti and Dr. Weir, particularly with regard to the direction of the plume and the levels of concentration. Additionally, though Dr. Mitchell states that his results show large areas of Baton Rouge downwind of the emitting source were exposed to non-zero ground level concentrations of sulphuric acid, he offered no opinion or testimony as the effect of such concentration.

Therefore, given the unrefuted evidence that the lowest level of concern for sul-phuric acid is 200 micrograms per cubic meter, and that at most, only one plaintiff was actually exposed to this level of concentration, we find that plaintiffs failed to meet the threshold burden of plausibility and failed to provide sufficient evidence to establish a large, definable group of aggrieved persons. Accordingly, the trial court erred in defining a subclass to consist of persons exposed to the released chemicals in the plume or in the area of the plume.

Second, with regard to the subclass consisting of persons who heard the warnings through the sirens, loudspeakers, or received a telephone call from the alert system and experienced some odor or other sensation of the presence of the chemicals, the record demonstrates that three sirens and loudspeakers were activated on the morning of the release, all of which are located upwind from the Rhodia plant. According to Ms. Moreau, these sirens have a one-half mile radius and rotate 360 degrees. In addition to the sirens, an automated telephone system was activated, which called or attempted to call approximately 1,700 homes in the area of the |1BRhodia plant. However, the expert testimony is clear that the wind on the morning of the release was blowing from the North/Northeast, and was pushing the plume southwest, or downwind. According to Dr. Weir, the people upwind of the Rhodia plant should not have experienced anything as a result of this particular release, and they certainly did not sense the presence of the sulphuric acid as a result of the release. Further, though Dr. Mitchell states in his report that the air models do not account for variations in wind speed and wind direction, which occur during an hourly averaging period, Dr. Mitchell agreed that the plume moved in a southwest direction and specifically limited his findings to the impact of plant emissions on the surrounding neighborhoods downwind of the plant.

In its reasons for judgment, the trial court noted Dr. Mitchell’s statement about variations in wind direction and stated, despite the unrefuted scientific evidence of the direction of the plume:

[A]nybody who’s been in South Louisiana, particularly a baseball fan like me, knows that when you sit in Alex Box Stadium, the wind blows in one direction for a while, and then it swirls around and comes from another direction for a short time. So while there may be a predominant direction and speed for the wind, that is not a constant. So the fact that the plume went southwest doesn’t mean people to the East or Northeast might not have, at some point, had some sensation of the plume.

However, to the extent that Dr. Mitchell’s statement in his report can be interpreted to dispute Dr. Zannetti’s and Dr. Weir’s opinions regarding the direction of the emissions from the Rhodia plant, the trial court’s use of judicial notice to resolve the disputed issue of material fact is improper. See Elliott v. United States Fidelity and Guaranty Co., 568 So.2d 155, 158 (La.App. 2nd Cir.1990). Further, even if Dr. Mitchell’s report is taken to question the direction of the winds on the morning of the release, the opinions expressed by Dr. Mitchell in his report specifically are limited to emissions dotmmnd of the release site. Therefore, his |; (¡report cannot support the conclusion that individuals upwind of the release site experienced some odor or other sensation of the presence of the chemicals.

Accordingly, based on the expert testimony in the record regarding the direction of the plume, and the lack of evidence to causally relate the alleged physical symptoms of the class members to the incident, we find the trial court erred in defining a subclass to consist of persons who heard the warnings through the sirens, loudspeakers, or received a telephone call from the alert system and experienced some odor or other sensation of the presence of the chemicals.

Finally, we address the third subclass defined by the trial court: persons who heard the sirens or loudspeakers, received a telephone call from the alert system, or were contacted personally by Rhodia employees. These claims are for fear, anxiety and emotional distress, absent any physical injury. In Moresi v. State, Department of Wildlife and Fisheries, 567 So.2d 1081 (La.1990), the supreme court set forth the necessary elements to recover damages for negligently inflicted mental distress. Generally, a defendant will not be held liable for such damages under Louisiana law where its conduct was merely negligent and caused only mental or emotional disturbance unaccompanied by physical injury. Moresi, 567 So.2d at 1095-1096; see also Bonnette v. Conoco, Inc., 01-2767, p. 22 (La.1/28/03), 837 So.2d 1219, 1234. The supreme court has recognized deviations from this general rule in various situations; however, it has only done so in cases where there is an “especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.” Moresi, 567 So.2d at 1096; see also Bonnette, 01-2767 at p. 23, 837 So.2d at 1234.

As stated above, three community alert sirens were activated in the community adjacent to the Rhodia plant with a one-half mile radius and rotating 360 degrees. Additionally, the community alert system called approximately 1,700 117homes, as identified on the call list admitted into evidence, informing individuals of the release. Several named, plaintiffs testified that they heard the alarm and loudspeaker, or received the telephone call, which message stated:

This is an emergency alert message from the East Baton Rouge Communications District. There has been a toxic release type of incident at Rhodia. Residents in the area are advised to shelter in place, move indoors, close all doors and windows, shut off all air conditioning and heating systems, and please do not use your telephone unless a personal emergency. Tune in to your local radio and T.V. for more information.

Mr. Stewart, Ms. Thomas, and Mr. Anderson stated that they were awakened in the middle of the night by the alarm and the loudspeaker message and were frightened. Additionally, Ms. Jones testified that she was frightened when she received a telephone call with a similar message. Finally, thousands of claim forms were admitted into evidence, with individuals claiming to have been frightened or fearful as a result of hearing the sirens and loudspeakers or receiving a telephone call.

Additionally, the record demonstrates that Rhodia dispatched personnel to go door to door in the neighboring community to distribute a flyer, informing individuals of the release. Defendants provided the addresses of the homes visited by Rhodia employees in their, answer to interrogatories, which were also admitted into evidence.

The trial court noted that the content of the message was particularly important in finding that the plausibility component of the numerosity analysis was satisfied. The court noted, “when people are told that there’s been a toxic release, they’re not to go outside, they’re to turn off their air conditioning and heating units so that nothing from outside comes in, they’re not to use the telephones, it’s certainly plausible that they would experience fear and anxiety.”

We are mindful that it is not necessary at the certification stage of the proceedings to prove the facts of the underlying cause of action, nor is it necessary |1sto prove that a cause of action exists. See Display South, Inc. v. Express Computer Supply, Inc., 06-1137, p. 7 (La.App. 1st Cir.5/4/07), 961 So.2d 451, 455; Hampton, 98-0430 at p. 6, 730 So.2d at 1093. Rather, the plaintiffs must establish a causal link between the incident and the injuries or damages claimed by sufficiently numerous class members. Boyd, 03-1840 at p. 12, 898 So.2d at 457. This burden, however, is not fairly comparable to the burden of proof of causation, medical or otherwise, on the merits. Boyd, 03-1840 at p. 22, 898 So.2d at 463. Accordingly, from our review of the record, given the content of the message and the testimony and/or sworn statements of thousands of plaintiffs that they heard the message and were frightened or fearful, we find no error in the trial court’s determination that the plaintiffs met their burden of establishing a causal link between the incident and the injuries or damages claimed by sufficiently numerous class members.

Further, we find no error in the trial court’s definition of this subclass, as the testimony at the hearing geographically defined the area of the three sirens as having a one-half mile radius for each siren, rotating 360 degrees. Additionally, a phone log was admitted into evidence listing the numbers called by the automated system and the interrogatories listed the addresses visited by Rhodia employees. Accordingly, we find no error in the trial court’s determination that the plaintiffs established a definable group of aggrieved persons so numerous that joinder of their claims would be impracticable.

Typicality

In order for a class action to be maintained, the claims of the class representatives must be typical of the claims of the absent class members. La. C.C.P. art. 591(A)(3). Simply stated, this element requires that the claims of the class representatives must be a cross-section of, or typical of, the claims of all class members. Singleton, 01-0447 at p. 12, 826 So.2d at 63. Typicality is satisfied if|19the claims of the class representatives arise out of the same event, practice, or course of conduct giving rise to the claims of other class members and are based on legal theory. Boyd, 03-1840 at p. 25, 898 So.2d at 464-465.

In the instant case, the claims and alleged injuries of the class representatives and the absent class members for emotional distress arise from the same event and are based on the same legal theory. All of the plaintiffs will have to demonstrate that the release of sulphuric acid occurred, and that the release caused them emotional distress. Considering the claims of the plaintiffs and the record before us, we find no manifest error in the trial court’s finding that the element of typicality has been satisfied.

Adequate Representation

The parties seeking to maintain a class action must also demonstrate that the representative parties will fairly and adequately protect the interests of the class. La. C.C.P. art. 591(A)(4). The test for determining adequate representation consists of three elements: (1) the chosen class representatives cannot have antagonistic or conflicting claims with other members of the class; (2) the named representatives must have a sufficient interest in the outcome to ensure vigorous advocacy; and (3) counsel for the named plaintiffs must be competent, experienced, qualified and generally able to conduct the proposed litigation vigorously. Boyd, 03-1840 at p. 26, 898 So.2d at 465; Singleton, 01-0447 at p. 13, 826 So.2d at 64.

From our review of the record, we find no evidence that the named plaintiffs have antagonistic or conflicting claims with other members of the class. Additionally, the record demonstrates that they have a sufficient interest in the outcome to ensure vigorous advocacy. Plaintiffs instituted their actions in 1999, and they appeared in court at the certification hearing over ten years later and offered their testimony. Further, there is no evidence that plaintiffs’ counsel is not |ancompetent, experienced or unqualified. Therefore, we find no error in the trial court’s determination regarding adequate representation.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment certifying the class action. However, we reverse that portion of the trial court’s judgment delineating three subclasses, finding that the evidence did not support subclass one, consisting of persons who experienced some exposure to the released chemicals in the plume or in the area of the plume, or subclass two, consisting of persons who heard the warnings through the sirens, loudspeakers, or received a telephone call from the alert system and experienced some odor or other sensation of the presence of chemicals. We remand this matter to the trial court for issuance of a new judgment certifying the class action in conformity with the views expressed in this opinion. All costs of this appeal are assessed equally among the parties.

WHIPPLE, J., dissents & assigns reasons.

McDONALD, j., dissents.

WHIPPLE, J.,

dissenting.

Pursuant to Boyd v. Allied Signal, Inc., 03-1840 (La.App. 1st Cir.12/30/04), 898 So.2d 450, writ denied, 05-0191 (La.4/1/05), 897 So.2d 606, appellate review of a trial court’s decision to certify a class action involves a two-part analysis, to-wit: the trial court’s factual findings in the first step of certification are subject to review under the manifest error standard and the trial court’s ultimate decision regarding certification is then reviewed under the abuse of discretion standard. Moreover, in reviewing such certification, appellate courts are cautioned that the proof necessary to satisfy the criteria for certification need not be by a preponderance of the evidence, but only requires a prima facie showing. Boyd, 03-1840 at pp. 10-11, 898 So.2d at 457. Despite these precepts and the extensive explanation provided by the trial court in support of its decision, which shows the trial court performed the multifaceted analysis set forth in Boyd, the majority finds that the trial court incorrectly certified the subclasses herein and rejects the trial court’s findings accordingly. In my view, the majority erred in doing so.

In the instant case, plaintiffs presented, and the trial court relied upon, inter alia, the “Forensic Meteorology Report” issued by Dr. David Mitchell, with MET Associates, an expert in forensic meteorology. In the report, relied upon |aextensively by the majority herein, Dr. Mitchell directly challenged the ultimate opinion rendered by Dr. Paolo Zannetti, a defense expert, explaining and concluding as follows:

The atmospheric dispersion modeling results presented in this report (both CALPUFF and AERMOD) show nonzero ground level concentrations of sulfuric acid (H2S04) occurring beyond the fence line of the Rhodia, Inc. Plant as a result of the upset release of S03 which occurred on February 22,1999. However, these models do not account for the presence of wind turbulence and variations in the wind speed magnitude and the wind speed direction which can occur during intervals of time less than 1 hour in duration. When model outputs of the calculated H2S04 concentration level contours are plotted on top of the area map of the region downwind of the release, the modeling results show that large areas of Baton Rouge, Louisiana were exposed to and impacted by S03 emissions and the resulting H2S04 vapors carried downwind of the emitting source. [Emphasis added].

After identifying the air modeling simulation performed by Dr. Zannetti using the parameters as listed in the attached Tables 1 and 2, Dr. Mitchell noted that Dr. Zannetti’s opinion was based on his use of a “puff’ model to run his model simulation, which calculated “a maximum sulfuric acid (H2S04) ground level concentration of 322 micrograms per cubic meter for a 30 minute exposure” with “[gjround level sulfuric acid concentration contours of 10, 20 and 200 micrograms per cubic meter [as] displayed on the figure.” In challenging Dr. Zannetti’s opinion, Dr. Mitchell then observed: “Note that the concentration contours follow the hourly wind pattern for the morning hours of February 22, 1999.” However, “[t]he air dispersion models do not account for any instantaneous changes in wind speed magnitude and wind speed direction which would occur during the hourly averaging period.” While the majority focuses on the portion of Dr. Mitchell’s report, which included an analysis and discussion of a downwind air dispersion model run (using an elevated stack source and recorded on a uniform grid of ground level receptors located downwind of the source), the trial court focused on Rand accepted Dr. Mitchell’s opinion that the models relied upon by the defense did not account for changes in the hourly wind speed, direction and magnitude which would occur during the period in question. (Moreover, in my view, Rhodia’s own internal documents, produced in response to plaintiffs request for production of documents call Dr. Zannetti’s assumptions regarding wind speed and direction into question, given that Rhodia was unable to directly verify the data given to its attorneys and expert regarding wind speed, as reflected in the response document marked “CONFIDENTIAL” dated 11/12/1999, which notes its missing critical logs. Further, to the extent that the majority credits and relies upon Dr. Francis Weir’s opinion, as the majority recognizes, his conclusions likewise are only valid “if the facts are as they have been presented” by Rhodia’s expert “regarding the source of the release and the wind direction.”

Thus, considering the various exhibits introduced at the hearing on class certification, along with Dr. Mitchell’s report and opinions, I find the plaintiffs met their burden of making the requisite evidentiary showing to establish a prima facie case to support the certification of the particular classes as carefully drawn by the trial judge. As the record demonstrates, the trial court carefully considered all of the documents and evidence submitted in support of and opposition to the motion for class certification and rendered an opinion based on its factual findings for which there is ample support in the record. Thus, in my view, the majority errs in substituting its | ¿opinion for that of the trial court, given the record before us.

In sum, considering the applicable law as set forth in Boyd and related cases, and given the record as a whole, I would affirm the trial court’s judgment at defendant’s costs. As observed by the trial court, when discussing Boyd, “if there is an error to be made, it should be made in favor of, and not against the maintenance of the class action,” inasmuch as the certification of class action is always subject to modification should later developments, during the course of the trial, so require.” As the cases recognize, class action certification is purely procedural and the review of such a decision should not be premised on the ultimate likelihood of success (or lack thereof) on the merits. Moreover, the substitution on appeal of one expert’s testimony over that of another is not properly part of the scope of appellate review of the certification process. For these reasons, I respectfully dissent.

      . The Elliott Company was formerly known as Elliott Turbomachinery Company, Inc.

      . The defendants contend on appeal that the trial court erred in admitting these claim forms at the certification hearing, because they were inadmissible hearsay. Louisiana Code of Evidence article 1101(A)(1) provides that "the provisions of this Code shall be applicable to the determination of questions of fact in all contradictory judicial proceedings and in proceedings to confirm a default judgment." However, La. C.E. art. 1101(B) provides, in pertinent part:
      [I]n the following proceedings, the principles underlying this Code shall serve as guides to the admissibility of evidence [and t]he specific exclusionary rules and other provisions ... shall be applied only to the extent that they tend to promote the purposes of the proceedings....
      (8) Hearings on motions and other summary proceedings involving questions of fact not dispositive of or central to the disposition of the case on the merits, or to the dismissal of the case, excluding in criminal cases hearings on motions to suppress evidence and hearings to determine mental capacity to proceed.

        As set forth in La. C.C.P. art. 592, the proponent of the class "shall file a motion to certify the action as a class action” and that “[n]o motion to certify an action as a class action shall be granted prior to a hearing on the motion.” As stated above, the purpose of the class certification hearing is not to determine whether the plaintiffs will be successful on the merits of their claims, but to determine whether the class action is procedurally preferable. Hampton, 98-0430 at p. 6, 730 So.2d at 1093. Therefore, the signed and notarized forms efficiently demonstrate the damages that each individual plaintiff is claiming, and have been recognized as an acceptable practice by this court. See Crooks, 07-1901 at pp. 7-8, 994 So.2d at 109-111; see also Boyd, 03-1840 at p. 11 and 22-23, 898 So.2d at 457 and 463; Singleton, 01-0447 at p. 9, 826 So.2d at 62; Ellis v. Georgia-Pacific Corp., 550 So.2d 1310, 1313-1314 (La.App. 1st Cir.1989), writ denied, 559 So.2d 121 (La.1990). Further, as noted by the trial court in granting the plaintiffs’ motion in limine, the court only allowed those forms that were signed and notarized to be admitted into evidence, and such admission was only for the purpose of the class certification hearing. Accordingly, we find that the purposes of the proceedings were best served by allowing the admission of these forms, and we find no error in the trial court’s determination.

      . I also disagree with the majority's finding that the trial court’s ruling was premised on the court taking improper judicial notice of the judge’s experience of wind patterns experienced while sitting in a Baton Rouge stadium. Considering the judge's comments in the context of the court's overall remarks explaining why the court tended to agree with Dr. Mitchell's opinion, I find the majority unfairly characterizes the basis of the trial court’s ultimate conclusion. As the above quoted excerpts show, Dr. Mitchell's report, while plotting the areas in more detail on an area map downwind of the release, nonetheless specifically states that his modeling results showed that "large areas of Baton Rouge, Louisiana” were impacted.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Donald K. SWANZY.
    No. 11-KA-882.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 8, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Cate L. Bartholomew, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| ^Defendant, Donald K. Swanzy, appeals his convictions for two counts of theft over $500 on the basis there was insufficient evidence. For the reasons that follow, we affirm in part and reverse in part.

Defendant was charged in a bill of information on January 26, 2009 with two counts of theft over $500 in violation of La. R.S. 14:67. The State later amended the bill to specifically charge defendant with theft by means of fraudulent conduct, practices or representations. He proceeded to trial on August 20, 2009 before a six-person jury. After a two-day trial, the jury found defendant guilty as charged on both counts. The trial court subsequently sentenced defendant to six years at hard labor on each count, which was suspended in favor of two years active probation and three years inactive probation.

\ .FACTS

In July 2008, Senior Trooper Andrew Pratt, with the Louisiana State Police, was contacted by a detective with the New Orleans Police Department about recovering equipment that was allegedly stolen from the TwiRopa construction site on Tchoupitoulas St. in New Orleans in 2007. Trooper Pratt met with Terry Kutcher, the owner of the equipment who provided ownership documents for an excavator. Mr. Kutcher informed Trooper Pratt that the excavator was located at Dale’s Wrecker Service in Gretna. On July 24, 2008, Trooper Pratt went to Dale’s and recovered the excavator from Lloyd Michell, the owner of Dale’s, and returned it to Mr. Kutcher.

Mr. Michell testified he helped Charles McGowan purchase the excavator from defendant for $25,000 in November 2007. Mr. McGowan testified he saw the excavator sitting across the street from where he was working a job at the Harvey Canal on Destrehan Blvd. and inquired about it. According to Mr. McGowan, defendant initially said it was not for sale because he was waiting for some letter before he could sell it. A few weeks later, defendant approached Mr. McGowan and said he was ready to sell the excavator. Mr. McGowan then bought the excavator and was issued a bill of sale as a receipt.

Mr. Kutcher, who is from Oklahoma, explained he is the owner of Chisholm Trail Construction, a company that performs dirt construction and demolition. His company came to Louisiana after Hurricane Katrina to perform clean-up and remedial work. In June 2007, Mr. Kutcher and defendant entered into a contract for demolition of the TwiRopa building. Under the contract, Chisholm Trail Construction was to provide all equipment necessary to demolish the building. The excavator at issue was one of the pieces equipment Chisholm Trail Construction provided for the job.

|4One month later, the business dealings between Mr. Kutcher and defendant began to deteriorate over unpaid invoices. On July 25, 2007, defendant removed the excavator, along with other equipment, from the TwiRopa site. An employee of Chisholm Trail Construction, who was staying in a trailer at the job site, informed Mr. Kutcher of the removal of the excavator and contacted the police, who indicated it was a civil matter. According to the employee, defendant took the excavator “down the road” and “locked it up.” Mr. Kutcher testified the excavator was removed from the TwiRopa job site without permission. He stated that nothing in the TwiRopa contract allowed for the seizure of equipment due to a dispute involving the contract.

In December 2008, a little over four months after Trooper Pratt assisted in the recovery of the excavator, Mr. Kutcher contacted Trooper Pratt about an issue involving one of his bulldozers. Mr. Kutcher explained that he had taken the bulldozer to Diesel Truck Service, a business owned by defendant, in April 2007 to get an estimate for repairs. However, defendant subsequently sold the bulldozer to Mr. Michell in December 2007 for $6,500. The police ultimately recovered the bulldozer in December 2008 from Mr. Michell.

According to Mr. Michell, defendant stated the owner had abandoned the bulldozer and defendant had a lien on it because the owner had failed to pay for repairs defendant made to the bulldozer. Mr. Michell testified defendant further stated he had the proper paperwork permitting him to sell the bulldozer. When Mr. Michell learned the police were going to seize the bulldozer as stolen property, Mr. Michell contacted defendant about the documentation he had that allowed defendant to sell the bulldozer. In response, defendant provided Mr. Michell with documents showing he placed advertisements in the newspaper regarding the bulldozer and unpaid invoices. Defendant further offered a document showing he ^reported the repairs and storage of the bulldozer to Towing and Recovery Professionals of Louisiana (TRPL).

Mr. Kutcher stated he received a letter from defendant in June 2007 demanding payment for repairs made on the bulldozer, as well as the excavator. However, Mr. Kutcher testified he never authorized any repairs to either piece of equipment.

Upon seizure of the equipment by the police, defendant refused to refund Mr. McGowan and Mr. Michell’s money. Defendant was subsequently arrested and charged with theft over $500 relating to the sale of the excavator to Mr. McGowan and the bulldozer to Mr. Michell.

DISCUSSION

In defendant’s sole assignment of error, he asserts the evidence was insufficient to convict him of theft. He contends the State failed to prove two essential elements for theft: (1) a taking or misappropriation, and (2) specific intent to defraud. Defendant argues he was the legal owner of the bulldozer and excavator and, thus, he could not have misappropriated the equipment. He also maintains there was nothing fraudulent about the sale of the equipment to Mr. McGowan and Mr. Mic-hell. Defendant further asserts this matter involved a dispute over a contract for repairs to the equipment and that he involved an attorney to resolve the dispute.. He contends he followed the required procedure under La. R.S. 9:4502 to obtain a lien on the equipment and properly sold the equipment as allowed by law.

|fiIn reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, direct or circumstantial or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Mickel, 09-953 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La. 1/7/11), 52 So.3d 885.

Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts. State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. The rule as to circumstantial evidence is “assuming every fact to be proved that the evidence ténds to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. On appeal, the reviewing court does not determine if another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. Instead, the appellate court must evaluate the evidence in a light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Durand, 07-4 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, 1034, writ denied, 07-1545 (La.1/25/08), 973 So.2d 753. The reviewing court must not impinge on the jury’s finding of fact, in a criminal case, except to the extent necessary to guarantee constitutional due process. State v. Major, 03-3522 (La.12/1/04), 888 So.2d 798, 802.

Defendant was convicted of theft in violation of La. R.S. 14:67. La. R.S. 14:67(A) defines theft as follows:

17Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

As such, in order to.support a conviction for theft pursuant to La. R.S. 14:67, the State is required to prove, that defendant misappropriated or took, a thing of value, that belonged to another, without the consent of the owner, and that he had the intent to deprive the owner permanently of that which was misappropriated or taken. State v. Carmen, 08-478 (La.App. 5 Cir. 1/27/09), 3 So.3d 587, 591. In addition, the State is required to prove the value of the stolen property, since the determination of the severity of the offense and the degree of punishment upon conviction depends upon the value of the stolen goods. State v. Ramsdell, 06-644 (La.App. 5 Cir. 12/27/06), 949 So.2d 508, 511. In this case, the State was required to prove that the value of the goods was over $500.

Theft is a crime of specific intent. State v. Patterson, 11-158 (La.App. 5 Cir. 11/29/11), 78 So.3d 855, 859. Specific criminal intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. State v. Joseph, 09-400 (La.App. 5 Cir. 12/29/09), 30 So.3d 157, 165. A reasonable and honest belief that one owns an interest in property precludes a finding that he intended to take the property of another. State v. Henry, 46,406 (La.App. 2 Cir. 8/10/11), 73 So.3d 958, 966; State v. Rabalais, 99-623 (La.App. 3 Cir. 1/26/00), 759 So.2d 836, 841-42.

We find the evidence sufficient to prove defendant committed theft involving the excavator. Defendant removed the excavator from a construction |ssite without permission from the owner or anyone at the construction site. Mr. Gooch, an employee of Chisholm Trail Construction, testified he specifically told defendant he could not take the equipment, but defendant took it anyway. The fact that defendant attempted to obtain a repairman’s lien on the excavator after seizing it does not negate the fact he took the excavator without permission with the intent to permanently deprive the owner of the excavator. He then misrepresented to Mr. McGowan that he had the authority to sell the excavator, which he took without permission. Defendant further refused to refund Mr. McGowan the $25,000 he paid for the excavator when defendant’s authority to sell the excavator was questioned and the excavator was seized as stolen property. We find a reasonable juror could find from these facts that defendant had the requisite specific intent to commit theft.

.[5] Conversely, we find the evidence insufficient to convict defendant of theft involving the bulldozer. In particular, we find the evidence does not sufficiently establish defendant possessed the requisite specific intent to commit theft.

The record shows Mr. Kutcher dropped off the bulldozer to defendant to obtain an estimate for repairs. Although Mr. Kutcher testified he did not authorize any repairs, the evidence shows he acknowledged that Terry Lockhart, his business associate, authorized repairs to some equipment. Specifically, when Mr. Kutcher received a letter from defendant in June 2007 requesting payment of the repair invoices, Mr. Kutcher responded:

Thank you for sending the invoices. It is without question that work is being done and you are trying to satisfy Tommy, Scott and myself. We will work through these invoices. Tommy will need to pay the invoices that he is responsible for. I will pay what Scott has ordered and deduct it from his pay. Please discontinue any more work unless it is ordered by me.

liiThe evidence shows repairs charged for the bulldozer in April 2007 included labor to build a dirt ramp to unload the bulldozer from the trailer and the parts to replace the battery. These invoices were addressed to Mr. Lockhart, who never testified at trial, and Mr. Kutcher testified he never authorized any of this work.

The record indicates there was some confusion as to who owned what equipment for which there were outstanding invoices. In August 2007, an employee for defendant sent Mr. Kutcher a facsimile indicating that Mr. Lockhart represented he owned all the listed equipment, including the excavator and bulldozer at issue, and that she needed ownership documentation. Mr. Kutcher replied via facsimile stating that he/Chisholm Trail owned the excavator and bulldozer, among other equipment. Mr. Kutcher also acknowledged in his response that defendant thought he had a buyer for the bulldozer. At trial, Mr. Kutcher testified he and defendant discussed the sale of the bulldozer, but he never authorized its sale.

Mr. Kutcher testified he asked defendant on more than one occasion for an estimate on the bulldozer, but defendant told him that he had yet to look at it. Towards the end of June 2007, defendant started charging a storage fee for the bulldozer. He filled out an “Official Report of Stored Vehicle,” which is used by TRPL to eventually obtain a permit to sell the vehicle under the Louisiana Towing and Storage Act, La. R.S. 32:1711, et seq., on the bulldozer. However, according to a TRPL employee, such a form would not have been processed for a bulldozer because a permit to sell can only be issued for registered and titled vehicles, which does not include a bulldozer.

On September 17 and 24, 2007, defendant placed an advertisement in the Times Picayune stating that equipment, including the bulldozer at issue, was stored |inat Diesel Truck Service and if all current charges are not paid and the equipment claimed by the owner by October 25, 2007, a permit to sell may be obtained.

On October 20, 2007, defendant sent a letter to Mr. Kutcher via facsimile indicating the bulldozer, among other equipment, was in his possession and that the repair and storage fees owed totaled $8,775.82. Defendant indicated he had obtained all the necessary permits to sell the equipment and intended to do so. Despite a confirmation report showing the facsimile was successful, Mr. Kutcher testified he never received the letter. However, Mr. Kutcher admitted receiving an invoice for the storage fees. He stated he was surprised when he received the invoice dated September 12, 2007 for storage fees for the bulldozer from June 2007 through September 2007 in the amount of $1,350.00, because he did not understand he would be charged storage fees for dropping off the bulldozer for an estimate of repair. Mr. Kutcher never indicated he tried to retrieve the bulldozer in the five months that passed from the time he dropped it off in April 2007 until he received the invoice.

On November 7, 2007, defendant sent a letter to the Jefferson Parish Sheriffs Office as a follow-up to a phone conversation he had with Lieutenant Terry Poche one week earlier regarding the equipment. In the letter, defendant stated he had followed all legal procedures for ownership of the equipment, including notifying the responsible parties and advertising in the legal section of the newspaper. Defendant stated he needed to be certain that he had followed all rules and completed all necessary steps to obtain his equipment before selling or disposing of it. Defendant requested Lt. Poche contact him to discuss the best way to handle the situation.

| nDefendant subsequently sold the bulldozer to Mr. Michell on December 20, 2007, after obtaining advice from his counsel, Valerie Oxner, throughout the entire business contract and dispute over unpaid invoices. Ms. Oxner testified that she advised defendant of the procedure for taking ownership and selling untitled vehicles. She stated she helped him follow the proper legal procedure and was satisfied all required steps were followed. Ms. Oxner explained she sent letters to Chisholm Trail regarding unpaid invoices. She stated most of her communications were with Jack Studeville, who was an officer of Chisholm Trail, which owned the equipment at issue. But, Ms. Oxner testified she had some communication and physical meetings with Mr. Kutcher about the unpaid invoices. She also had dealings with Mr. Lockhart, who Ms. Oxner understood was doing work for Chisholm Trail and had authorized repairs to both equipment owned by Chisholm Trail and his own personal property.

We find that a rational trier of fact could not have found the evidence in this case proved beyond a reasonable doubt that defendant had the specific intent required for theft. The documentary and testimonial evidence shows defendant consulted an attorney, communicated verbally and in writing with Mr. Kutcher and other representatives of Chisholm Trail about the outstanding invoices and his intent to sell the bulldozer under a lien, and advertising his intent to - sell the bulldozer under a lien in the newspaper. The evidence, even viewed in a light most favorable to the prosecution, shows defendant had a reasonable belief that he had the right to sell the bulldozer under a lien thereby negating a specific intent to commit theft.

We are cognizant that we may not substitute our judgment for that of the jury. However, the jury’s conclusion cannot stand if the evidence is such that reasonable jurors must have a reasonable doubt. See State v. Mussall, 523 So.2d 1305, 1311 (La.1988). We find the evidence is such that reasonable jurors must have a reasonable doubt as to defendant’s specific intent to commit theft. Given the nature of the intent evidence presented, the facts do not rise to the specific intent necessary to convict defendant of theft involving the bulldozer. Rather, the evidence shows nothing more than a personal dispute between the parties.

DECREE

For the foregoing reasons, defendant’s conviction and sentence for theft over $500 from Mr. McGowan involving the excavator (Count 2) is affirmed. His conviction and sentence for theft over $500 from Mr. Michell involving the bulldozer (Count 1) is reversed.

AFFIRMED IN PART; REVERSED IN PART.

      . This is defendant’s second appeal. Without addressing any of the issues raised by defendant, we dismissed his first appeal and remanded the matter for a ruling on his outstanding motion for post-verdict judgment of acquittal. State v. Swanzy, 10-483 (La.App. 5 Cir. 6/14/11), 71 So.3d 392, 394. On remand, the trial court denied his motion, and defendant timely appealed.

      . A minute entry dated September 14, 2009 indicates the trial court continued the original sentencing date and ordered defendant to pay restitution in the amount of $25,000 to Mr. McGowan and $6,500 to Mr. Michell, the victims in this case. At the November 30, 2009 sentencing hearing, the trial court noted that defendant had made full restitution to the two victims.

      . TRPL is a nonprofit trade association that helps towing, repair, and storage facilities go through the necessary paperwork to obtain permits to sell from the Department of Motor Vehicles when the owners of the vehicles or titled movables do not come forward to claim their property. An employee of TRPL testified at trial that heavy equipment, such as a bulldozer, does not fall within the realm of titled vehicles for which a permit to sell is issued by the Department of Motor Vehicles.

      . Defendant had counsel who helped him with his business endeavors. Defendant’s counsel, Valerie Oxner, testified that she had to explain to defendant the difference between selling titled and untitled vehicles. She explained that he did not need to obtain a permit to sell untitled vehicles, and she advised defendant of the process by which to obtain ownership and sell untitled vehicles through a repairman’s lien.


text:
    STATE of Louisiana v. Carlos HERNANDEZ.
    No. 11-KA-996.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 8, 2012.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| ^Defendant, Carlos Hernandez, appeals his aggravated battery conviction. For the reasons that follow, we affirm.

Defendant was charged in a bill of information with second degree battery in violation of La. R.S. 14:34.1 to which he pled not guilty. He proceeded to trial on June 22, 2011. On the morning of trial, the State amended the bill of information to charge defendant with aggravated battery in violation of La. R.S. 14:34, instead of second degree battery. At the conclusion of trial, a six-person jury found defendant guilty as charged.

The trial court subsequently denied defendant’s motions for post-verdict judgment of acquittal and for a new trial. On July 1, 2011, the trial court sentenced defendant to ten years imprisonment at hard labor. Defendant timely appealed.

\ .FACTS

On November 3, 2010, Deputy Brent Remondet was dispatched to 2504 East-view Drive in Harvey to investigate a disturbance involving a knife. Upon arrival, he observed people gathered in a driveway looking at the victim, Oscar Lara, who was lying on the ground with apparent stab wounds to his body. The victim told Deputy Remondet what happened to him, and Deputy Remondet called for medical assistance. The victim was subsequently transported to the hospital where he underwent surgery and stayed for approximately one week.

During his investigation, Deputy Re-mondet identified one witness, Peter Edel, who gave a statement at the scene. At trial, Mr. Edel testified that the victim and defendant were his half-brothers, and they all resided together at their mother’s home on Eastview Dr. Mr. Edel stated he witnessed an altercation between his brothers that resulted in the stabbing.

Mr. Edel explained Oscar and defendant were arguing, pushing, and swinging at each other in the living room of the residence. Upon hearing the commotion, Mr. Edel exited his bedroom at which time defendant went into the kitchen saying he was going to get a knife to stab Oscar. Defendant grabbed a knife from the kitchen, but Mr. Edel took it from him. Thereafter, defendant retreated to his bedroom.

Mr. Edel stated that Oscar subsequently walked out of the residence, and defendant followed him outside. Mr. Edel followed them, and as Oscar was walking away from the house he saw defendant with a blade. He then saw defendant stab Oscar two or three times. He stated he never saw Oscar with a 14knife. Mr. Edel applied pressure to Oscar’s wounds and told his mother to call an ambulance.

Oscar testified that he did not recall all of the details of the altercation, but stated he was intoxicated at the time he and defendant, who is his brother, had an altercation that resulted in him being stabbed. Oscar showed the jury the locations of his wounds, which he admitted were caused by defendant, and a large scar on his stomach from a surgery that was required after the altercation. Oscar denied that he made any threats to kill defendant and denied having a knife or gun on his person at the time of the incident.

Defendant was arrested at the scene. After learning defendant ran into the backyard after the incident, Deputy Re-mondet began searching for the weapon. He was advised by the neighbors that they had heard a sound in their backyard. A search revealed a knife on the roof of the backyard patio cover at the neighbor’s house.

LAW & ANALYSIS

Defendant’s appeal consists solely of an Anders brief filed by his appointed appellate counsel requesting an error patent review. Specifically, appellate counsel seeks to withdraw as counsel of record on the basis he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for |fidetermining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam), the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every mer-itless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. Rather, the Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may both deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. In his brief, he | f,states there were no hearings on dispositive motions prior to trial upon which to base a claim of error on appeal, and suggests that under the facts of this case, no motions to suppress applied. He notes that although voir dire was not transcribed, the court reporter indicated there were no objections to the two challenges for cause granted by the court. Counsel further states there were few objections during trial, none of which would warrant relief on appeal, and notes defendant successfully had the 911 tape excluded at trial. He states there were no objections to the jury charges or to the trial court’s response to the jury’s mid-deliberation question.

Appellate counsel also suggests that the evidence at trial was sufficient to support the verdict of aggravated battery as it showed the victim received multiple knife wounds at the hands of defendant. Counsel also contends there was no evidence to establish self-defense, noting that trial counsel was satisfied with jury charges that did not include a charge on self-defense. Counsel also claims that the bill of information is in order and the minutes indicate that defendant was present with counsel for all critical court proceedings. Finally, counsel states defendant’s maximum sentence appears legal and is not unconstitutionally excessive under the circumstances of the case. As such, counsel contends that after a careful review of the record, he finds no non-frivolous issue upon which to base an appeal.

We find appellate counsel’s brief adequately reviews the procedural history of the case and the evidence presented, and provides a detailed assessment of whether there are any non-frivolous issues, thereby satisfying the requirements of Jyles.

In his motion to withdraw as attorney of record, appellate counsel indicates he notified defendant that he filed an Anders brief and explained to him his right to file a pro se supplemental brief. In a letter sent certified mail, this Court also | ^advised defendant of his right to file a pro se supplemental brief and informed him that he had until December 14, 2011 to do so. Defendant did not file a pro se supplemental brief.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When an Anders brief is filed, the appellate court reviews: (1) the bill of information to insure the defendant was properly charged; (2) all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct, and the sentence is legal; (3) all pleadings in the record; and (4) all transcripts to determine if any ruling provides an arguable basis for appeal. State v. Bradford, 676 So.2d at 1110-11.

The bill of information shows defendant was properly charged. As required, it plainly, concisely, and definitely states the essential facts constituting the offense charged. It also sufficiently identifies defendant and the crime charged. See generally La. C.Cr.P. art. 464-66.

As reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him, including his arraignment, his trial and verdict, and his sentencing. Further, the jury composition was proper.

The record shows defendant filed several pre-trial motions, including motions to suppress the evidence, identification, and defendant’s statement, which do not appear to have been ruled upon prior to trial. Nevertheless, when a defendant does not object to the trial court’s failure to rule on a motion prior to trial, the motion is considered waived. State v. Wise, 05-221 (La.App. 5 Cir. 10/6/05), 916 So.2d 290, 293. Further, we note the motions to suppress were generic and that the evidence does not show any evidence, identification or statement subject to suppression.

| sAlso, defendant’s sentence does not present any issues for appeal. Defendant’s sentence falls within the sentencing range prescribed by statute. See La. R.S. 14:34. Further, defendant’s sentence is supported by the record. Defendant stabbed his drunken brother multiple times after he walked away from a previous altercation. His injuries required hospitalization and surgery. If not for the immediate medical attention received by the victim, the victim would have died.

Finally, the record shows the State presented sufficient evidence that defendant committed aggravated battery by stabbing the victim multiple times with a knife.

Accordingly, we find the proceedings surrounding defendant’s trial and sentence do no present any non-frivolous issues to be raised on appeal. Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and our independent review of the record supports counsel’s assertion, we affirm defendant’s conviction and sentence and grant appellate counsel’s motion to withdraw as attorney of record.

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920. We note an error in the commitment that needs correction. The transcript reflects the trial court denied defendant’s motion to reconsider sentence, but the commitment only reflects that defense counsel said he would file a motion to reconsider and the court advised its intent to deny the motion. The transcript shows the trial court did more than express its intent to deny the motion; it actually denied the oral motion to reconsider sentence.

To insure an accurate record, we remand the matter for correction of the commitment to bring it in conformity with the transcript. The district court is |3directed to make the entries in the commitment reflecting the denial of the defendant’s motion to reconsider. We further direct the clerk of court to transmit the original of the minute entry/commitment to the officer in charge of the institution to which defendant has been sentenced, and to the Department of Corrections’ Legal Department. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06), 937 So.2d 846 (per curiam); State v. Lobo, 11-51 (La.App. 5 Cir.10/25/11), 77 So.3d 427, 439.

CONVICTION AND SENTENCE AFFIRMED; REMANDED; MOTION TO WITHDRAW GRANTED

      . We note defendant was not're-arraigned on the amended charge. Defendant waived this omission by proceeding to trial without objection. See La.C.Cr.P. art. 555; State v. Narcisse, 01-49 (La.App. 5 Cir. 6/27/01), 791 So.2d 149, 152, writ denied, 01-2231 (La.6/14/02), 817 So.2d 1152.

      . Deputy Remondet counted five wounds on the victim.

      . The paramedic who treated the victim at the scene testified that if the victim had stayed at the scene he would have "bled out” and died.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The United States Supreme Court reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).


text:
    Bryce MANIS and Madison Manis through their Natural Tutrix, Tonya A. Plaisance v. Douglas ZEMLIK, Arthur Lawson in his Official Capacity as Chief of Police for the City of Gretna, and the City of Gretna.
    No. 11-CA-799.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 8, 2012.

      Julian R. Murray, Jr., Attorney at Law, Metairie, LA, Alex Lambert, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Franz L. Zibilich, Attorney at Law, Me-tairie, LA, for Defendants/Appellees.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

^Plaintiffs appeal the trial court’s granting of summary judgment in favor of defendants dismissing their case with prejudice. For the following reasons, we reverse.

FACTS & PROCEDURAL HISTORY

Plaintiffs, Bryce Manis and Madison Manis through their natural tutrix, Tonya Plaisance, filed a lawsuit asserting wrongful death and survival actions against defendants, Douglas Zemlik, Arthur Lawson in his official capacity as Chief of Police for the City of Gretna, the City of Gretna, and Travelers Insurance Company, for an incident that occurred on October 3, 2005 resulting in the death of plaintiffs’ father, Michael Manis, Jr. After filing an answer, defendants filed a | smotion for summary judgment claiming there were no genuine issues of material fact and they were entitled to judgment as a matter of law. Defendants argued Officer Zemlik’s actions were reasonable and justified under the circumstances and, therefore, plaintiffs could not prove the tort of excessive force. After a hearing, the trial court granted defendants’ motion for summary judgment without reasons and dismissed plaintiffs’ lawsuit with prejudice.

In support of their motion for summary judgment, defendants offered the depositions of Sergeant Scott Vinson and Officer Douglas Zemlik, the statement of eyewitness David Jenkins, the toxicology report on Manis, and the police report. In opposition to the motion for summary judgment, plaintiffs submitted the statement of eyewitness Janet Jenkins, an affidavit from Dr. Wade Schindler, two photos, and the autopsy report.

According to this evidence, at approximately 3:00 a.m. on October 3, 2005, Mr. Jenkins and his wife were driving their 18-wheeler, after having just made a delivery to a post office, when they came upon a Jeep Cherokee parked on the railroad tracks at the intersection of Belle Chasse Hwy. and Gretna Blvd. The vehicle had its brake lights on and failed to respond to a green light despite Mr. Jenkins’ honking. After the vehicle failed to respond to three light cycles, Mr. Jenkins called 911.

Sergeant Vinson and Officer Zemlik responded to the call in two separate units. Upon their arrival, they observed a white male in the driver’s seat of a Jeep that was running, in gear, and ignoring the traffic signal cycle. Sgt. Vinson reached in through the passenger’s side door and put the vehicle in park. The officers identified themselves as “Gretna Police” and tried to wake the driver, who was later identified as Michael Manis, Jr. The officers had to physically shake ]4Manis to wake him. When Manis awoke, he started cursing and flailing his arms at Sgt. Vinson. According to Sgt. Vinson, Manis made an attempt to come at him like he was angry but was restrained by his seatbelt.

The cursing and flailing lasted 30 to 40 seconds before Manis noticed Officer Zem-lik, who was standing next to the driver’s side door. Officer Zemlik told Manis to calm down and ordered him to step out of the vehicle. Manis ignored Officer Zemlik and continued to curse and began to swing his arms towards Officer Zemlik. According to Officer Zemlik, Manis repeatedly tried to come after him but was prevented from doing so because he was still wearing his seatbelt. During this time, Sgt. Vinson was able to turn off the ignition through the passenger’s side door before walking around to the driver’s side to assist Officer Zemlik.

Manis then reached under the front seat of the Jeep with either one or both his hands. Officer Zemlik stepped back, pulled his weapon, and pointed it at Manis. Upon seeing Officer Zemlik draw his weapon, Sgt. Vinson likewise drew his weapon. Officer Zemlik repeatedly ordered Manis to show his hands, but Manis refused. Officer Zemlik feared Manis was retrieving a weapon. He warned Sgt. Vinson to “watch out” and told him Manis was reaching for something. Officer Zemlik stated Manis suddenly made a lunging motion like he had retrieved something and was coming up, at which time Officer Zem-lik fired his weapon.

After the incident, Mr. and Mrs. Jenkins gave statements to the police corroborating Sgt. Vinson’s and Officer Zemlik’s description of the incident. Mr. Jenkins stated that the officers woke Manis and the “guy went crazy,” reaching for and swinging his arms out of the window towards the officer on the driver’s side of the vehicle. According to Mr. Jenkins, Manis was making erratic movements. Mr. Jenkins stated the officers told Manis to exit the vehicle. Manis was trying to get | flout, but he had his seat belt on. Then, Mr. Jenkins explained one of Manis’ arms disappeared inside the vehicle and the officers screamed at him to show both his hands. Manis made a “jerk movement” like he was trying to yank something from inside the vehicle at which time one of the officers fired approximately four rounds, fatally wounding Manis.

Mrs. Jenkins likewise stated that Manis was throwing his arms around. She explained he had both arms and one leg out of the door. Then, both of Manis’ hands went down and the officers yelled for Man-is to put his hands where they could see them. Manis failed to comply. Manis made a jerking movement and shots were fired.

The autopsy showed Manis sustained five gunshot wounds: one to his left lateral neck, one to his left upper shoulder, one to his left upper arm/lower shoulder, one to the posterior aspect of his left upper arm near the junction with the trunk, and one to his posterior left shoulder. The toxicology report showed Manis tested positive for cocaine, barbiturates, THC (marijuana), and alcohol.

DISCUSSION

Plaintiffs contend genuine issues of material facts exist that preclude summary judgment.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored in the law. La. C.C.P. art. 966(A)(2); Robinson v. Jefferson Parish School Bd., 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975. Even though the summary judgment procedure is favored, it is not a substitute for trial on the merits. S.J. v. Lafayette Parish School Bd., 06-2862 (La.6/29/07), 959 So.2d 884, 887 (per curiam ). “[D]espite the legislative mandate that summary judgments are favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor.” Willis v. Medders, 00-2507 (La.12/8/00), 775 So.2d 1049, 1050.

A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764, 765 (per curiam). A genuine issue is a “triable issue.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. If reasonable persons could disagree after considering the evidence, a genuine issue exists. However, if reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id.; Alwell v. Meadowcrest Hosp., Inc., 07-376 (La.App. 5 Cir. 10/30/07), 971 So.2d 411, 414. “In determining whether an issue is ‘genuine,’ courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Smith, 639 So.2d at 751.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08-339 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163. Whether a particular fact is material can be seen only in light of the | substantive law applicable to the case. Kline v. Farm Bureau Ins. Companies, 06-129 (La.App. 5 Cir. 9/26/06), 942 So.2d 1080, 1083, writ

denied, 06-2575 (La.12/15/06), 945 So.2d 697. Summary judgment “is rarely appropriate in a suit to determine whether or not a person’s behavior constituted an actionable tort under existing circumstances, since such determination almost always involves factual disputes.” Landry v. Stein, 497 So.2d 1075, 1077 (La.App. 5th Cir.1986), quoting Continental Casualty Co. v. McClure, 313 So.2d 260, 262 (La.App. 4th Cir.1975).

Excessive force claims are analyzed under general negligence laws, which employ a duty-risk analysis. Stroik v. Ponseti, 96-2897 (La.9/9/97), 699 So.2d 1072, 1077. As such, plaintiffs must prove: (1) defendant owed a duty of care to plaintiffs; (2) the requisite duty was breached by defendant; (3) the conduct in question was a cause-in-fact of the resulting harm; and (4) the risk of harm was within the scope of the protection afforded by the duty breached. Id.

Whether a duty is owed is a question of law. Stroik, 699 So.2d at 1077. Police officers owe a duty of reasonableness when effecting an arrest or approaching a subject to disarm him. See La. C.Cr.P. art. 220; Kyle v. City of New Orleans, 353 So.2d 969 (La.1977); Mathieu v. Imperial Toy Corp., 94-952 (La.11/30/94), 646 So.2d 318. The use of force by law enforcement officers is tested by the “reasonable force” standard established by La.C.Cr.P. art. 220. Kyle, 353 So.2d at 972. The use of excessive force transforms ordinarily protected use of force into an actionable battery, rendering the defendant officer and his employer liable for any injuries which result from the breach of the duty owed. Id.; Penn v. St. Tammany Parish Sheriff’s Office, 02-893 (La.App. 1 Cir. 4/2/03), 843 So.2d 1157, 1161.

IsWhether the force used by án officer is reasonable depends on the totality of facts and circumstances in each case. Kyle, 353 So.2d at 973. The officer’s actions must be evaluated against those of ordinary, prudent and reasonable persons placed in the same position as the officer, with the same knowledge as that possessed by the officer at the time of the incident. Id.

The following factors must be considered in determining whether the force used by an officer is reasonable under the circumstances: (1) the known character of the arrestee; (2) the risks and dangers faced by the officer; (3) the nature of the offense involved; (4) the chance of the arrestee’s escape if the particular means are not employed; (5) the existence of alternative methods of arrest; (6) the physical size, strength, and weaponry of the officers as compared to the arrestee; and (6) the exigencies of the moment. Kyle, 353 So.2d at 973. The degree of force employed is a factual question. Id.

In our de novo review of the record, we find reasonable persons could disagree on the state of evidence and, therefore, genuine issues of material fact exist that preclude summary judgment. The pivotal issue in this case is whether Deputy Zemlik’s action of firing his gun multiple times at Manis, who was restrained by a seatbelt inside his vehicle, was reasonable force in light of the circumstances.

The evidence shows Manis was flailing around upon being awakened by the police. He was restrained in his vehicle by his seatbelt. Deputy Zemlik repeatedly ordered Manis to exit the vehicle. However, Manis could not perform this simple task. Whether he willfully refused, was too inebriated, or could not because of he was restrained by his seatbelt is a fact upon which reasonable minds could differ.

While Manis was in the vehicle, Sgt. Vinson entered the vehicle on two occasions: one to put the vehicle in gear and the other to turn off the ignition. At |sno time did Sgt. Vinson indicate he saw a weapon in the vehicle. At one point, one or both of Manis’ hands vanished from the officers’ sight. Deputy Zemlik then repeatedly ordered Manis to show his hands. As Manis’ hand(s) started to come up, Deputy Zemlik fired his weapon at least four times into Manis’ shoulder and back. Whether Manis had retrieved a weapon or was simply complying with Deputy Zem-lik’s order is another fact upon which reasonable minds could differ. Additionally, whether Deputy Zemlik was reasonable in repeatedly firing his weapon under these circumstances is a fact upon which reasonable minds could differ.

As such, we find genuine issues of material fact exist that preclude summary judgment.

DECREE

For the foregoing reasons, we find the trial court erred in granting summary judgment in favor of defendants. Accordingly, we reverse the judgment and remand this case for further proceedings. All costs of this appeal are assessed to defendants, Douglas Zemlik, Arthur Lawson in his official capacity as Chief of Police for the City of Gretna, and the City of Gretna.

REVERSED AND REMANDED

      . Plaintiffs first filed a § 1983 action in federal court alleging Officer Zemlik used excessive force in violation of the Fourth Amendment. On appeal from the district court’s denial of a motion for summary judgment, the United States Fifth Circuit Court of Appeals reversed and found summary judgment in favor of Officer Zemlik to be appropriate. Manis v. Lawson, 585 F.3d 839 (5th Cir.2009).

        . La.C.Cr.P. art. 220 provides: "A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained."