text:
    Ann NOLAN v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, Parish of Jefferson, State of Louisiana, d/b/a East Jefferson General Hospital.
    No. 11-CA-291.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Ann Nolan, Luling, LA, Plaintiff/Appellant in Proper Person.
    Rebecca Beck, Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, L.L.P., Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Chief Judge.

12Plaintiff/appellant, Ann Nolan (“Nolan”), appeals a summary judgment in favor of defendant/appellee, East Jefferson General Hospital (“East Jefferson”), dismissing her case -with prejudice. The underlying facts are contained in a prior opinion of this Court and will not be extensively repeated here.

The action began in June 1999, when Nolan filed a Petition for Reinstatement and Damages in the Twenty-Ninth Judicial District Court, which matter was eventually transferred to the Twenty-Fourth Judicial District Court. Amongst the various enumerated causes of action was one of defamation. Nolan urged that East Jefferson made defamatory statements about her in the form of written reprimands or criticisms that were placed in her employment file. Nolan urged that a certain written reprimand, dated October 16, 1997, was false and defamatory, and was published to third parties, including the Administrative Law Judge (“ALJ”) during her subsequent application for unemployment following her termination from East Jefferson. According to Nolan, the acts complained of were |sin retaliation for her “whistleblowing” activities, and these acts were ratified by the hospital.

On the first appeal to this Court, we determined the only claim that had not prescribed was for allegedly defamatory statements. We further determined that, because the Exception had been filed only by East Jefferson, the trial court erred in dismissing the entire suit as to all parties. The case was remanded for further proceedings with respect to the defamation claims.

In 2008, East Jefferson, Cheryl Kelley and Janice Kishner (co-employees) filed an Answer and Incorporated Exceptions of Prescription and No Cause of Action. Per a Consent Judgment, the court determined that there was no opposition to the exceptions, and that all claims against Kishner and Kelley had prescribed. Nolan was given leave of court to amend her petition to state a cause of action for defamation “by pleading finality of the unemployment proceeding occurring in 1998.” In her second amending petition, Nolan added that the unemployment proceedings became final on March 13, 1998 when the Louisiana Board of Review heard the case and decided that Nolan did not deliberately violate company policy.

East Jefferson filed a Motion for Summary Judgment, stating that the sole remaining claim was the alleged defamation based on information sent to the ALJ who heard Nolan’s appeal for unemployment benefits. East Jefferson also asserted that the statements made to the ALJ were true, that the ALJ has qualified privilege, and that no other publication had been made. Nolan argued that the qualified privilege did not apply because the statements made to the ALJ were not made in good faith. Nolan alleged that the information was not investigated, and the statements were made with malice in retaliation of her complaint regarding the pharmacy discrepancies.

|4The court granted summary judgment, finding the disclosure was not public, but was made to the ALJ who had qualified privilege. Nolan appeals, urging the trial court erred in finding that the information given to the ALJ was not published to other persons, namely, to her mother who was present at the hearing. Nolan further asserts that the allegations made by East Jefferson were never proven. Although she admits to copying hospital records, she maintains that it was not established that she did so with the purpose of violating hospital policy rather than at the request of an East Jefferson physician, Dr. Clem Eiswirth, after she reported the problem with the pharmacy as discussed in our original opinion. Finally, Nolan again claims bad faith on the part of the hospital.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of civil actions (with the exception of certain domestic matters) and is now favored in our law. LSA-C.C.P. art. 966(A)(2). Of particular relevance to the instant case is LSA-C.C.P. art. 966(C)(2), which states:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

With regard to summary judgment on defamation actions, the Louisiana Supreme Court has stated:

IííAs a preliminary matter, we note that-because of the chilling effect on the exercise of free speech, defamation actions have been found particularly susceptible to summary judgment. Summary adjudication, we have recognized, is a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press....

In order to prevail on her claim against East Jefferson in the- present case, Nolan bears the burden of affirmatively proving (1) a false and defamatory statement; (2) an unprivileged publication to a third party; (3) negligence on the part of East Jefferson; and (4) resulting injury. If even one of these required elements is found lacking, the cause of action fails. The Kennedy court determined that negligence in terms of defamatory statements is that set forth in the Restatement (Second) of Torts § 580B, which states:

One who publishes a false and defamatory communication concerning a private person, or concerning a public official or public figure in relation to a purely private matter not affecting his conduct, fitness or role in his public capacity, is subject to liability, if, but only if, he
(a) knows that the statement is false and that it defames the other,
(b) acts in reckless disregard of these matters, or
(c) acts negligently in failing to ascertain them.

In Louisiana, privilege is a defense to a defamation action. The elements of the conditional privilege have been described as “good faith, an interest to be upheld and a statement limited in scope to this purpose, a proper occasion, and publication in the proper manner and to proper parties only.”

The Kennedy case discussed the concept of qualified privilege. The analysis for determining whether a conditional privilege exists involves a two-step process. First, it must be determined whether the attending circumstances of a communication occasion a qualified privilege. The second step of the analysis is a | ^determination of whether the privilege was abused, which requires that the grounds for abuse-malice or lack of good faith be examined. “While the first step is generally determined by the court as a matter of law, the second step of determining abuse of a conditional privilege or malice is generally a fact question for the jury ‘[ujnless only one conclusion can be drawn from the evidence.’ ”

The defense of qualified privilege has been found to be applicable in communications made in unemployment compensation proceedings. The public’s interest and social necessity mandate that an employer not be unreasonably restricted when required to provide information for a state agency to determine in a quasi-judicial proceeding whether a terminated employee should receive unemployment benefits. The employer must be free to make a complete and unrestricted communication without fear of liability in a defamation suit even if the communication is shown to be inaccurate, subject to the requisites that the communication is in good faith, is relevant to the subject matter of the inquiry and is made to a person (or agency) with a corresponding legitimate interest in the subject matter.

To establish reckless disregard of the truth, a plaintiff must prove that the publication was deliberately falsified, published despite the defendant’s awareness of probable falsity, or the defendant in fact entertained serious doubts as to the truth of his publication.

In addition to privilege, proof of the truth of a defamatory remark is a valid defense in a civil suit for defamation. In the present matter, the transcript of the | .¡proceedings before the Appeals Board of the Employment Security Office was submitted. Nolan, her mother (as an observer), and Linda Bollhalter, as the employer representative, were present. With regard to the presence of Nolan’s mother, under the circumstances, we assume her presence was purely voluntary and not necessary to the proceedings. The central issue for Nolan’s discharge centered on the copying and dissemination of patient records. During the proceedings, Nolan admitted to having copied the records, although she continued to insist that she did so at the direction of Dr. Eiswirth, following her complaints to him about taking verbal orders from pharmacists. Nolan further admitted that she showed the records to the personnel director after having received a written warning regarding patient confidentiality.

It, thus, appears from the record that the remarks complained of were both true and privileged. Nolan has made no showing of bad faith, negligence, or reckless disregard for the truth, and she has failed to submit evidence sufficient to show that she will be able to meet her burden of proof at trial. Neither the fact that Nolan chose to bring her mother to the proceedings, nor the fact that the Board of Review ultimately determined her violation of policy was not “deliberate” for purposes of unemployment benefits, affects the ultimate finding that there was no defamation under the law. Because she cannot produce factual support for an essential element of her cause of action-proof of an unprivileged defamatory communication to a third party-summary judgment was properly granted by the district court.

AFFIRMED.

      . Nolan v. Jefferson Parish Hosp. Serv. Dist. No. 2, 01-175 (La.App. 5 Cir. 6/27/01), 790 So.2d 725.

      . Kennedy v. Sheriff of E. Baton Rouge, 05-1418 (La.7/10/06), 935 So.2d 669, 686-87.

      . Kennedy, supra, at 686 (citing Mashburn v. Collin, 355 So.2d 879, 890-91 (La. 1977)).

      . See, Kennedy, supra (citing Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129, 141).

      . Restatement (Second) of Torts § 580B (1977).

      . Kennedy, supra; Costello, supra.

      . Kennedy, supra (citing Madison v. Bolton, 234 La. 997, 102 So.2d 433, 439 n. 7 (1958)).

      . Kennedy, supra (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730).

      . Id.

      . See, e.g., Boyd v. Cmty. Ctr. Credit Corp., 359 So.2d 1048, 1050 (La.App. 4 Cir.1978); Kelly v. W. Cash & Carry Bldg. Materials Store, 99-0102 (La.App. 4 Cir. 10/20/99), 745 So.2d 743.

      . Williams v. Touro Infirmary, 578 So.2d 1006, 1010 (La.App. 4 Cir.1991).

      . Jalou II, Inc. v. Liner, 10-0048 (La.App. 1 Cir. 6/16/10), 43 So.3d 1023, 1037 (citing Kennedy, supra).

      . La. R.S. 13:3602; Huxen v. Villasenor, 01-288 (La.App. 5 Cir. 9/25/01), 798 So.2d 209, 212 (citing Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101, 1105 (La.1988)).


source: Caselaw Access Project

author: ROBERT A. CHAISSON, Judge.

license: Public Domain

text:
    In re SAVOIE’S CHILDRENS TRUST.
    No. 11-CA-698.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Donald D. Bann, Attorney at Law, Mandeville, LA, for Plaintiff/Appellee.
    Harry R. Holladay, Jonathan C. McCall, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

12This is an appeal by Deutsche Bank National Trust Company, a National Banking Association F/K/A Bankers Trust Company of California, N.A., as Trustee for Long Beach Mortgage Loan Trust 2001-3, intervenor-appellee, in this nullity action involving an irrevocable trust. For the following reasons we reverse the judgment.

The pertinent facts began in 1992 when Ronald and Jennifer Savoie established a trust in Jefferson Parish in favor of their two children, Ronda Alexis Savoie and Chase Tyler Savoie. On October 12, 2000, the trust purchased a parcel of property in Beau Chene Subdivision in St. Tammany Parish for $762,500. Because the trust had no substantial assets, a partial payment of $147,500 was made with funds loaned to the trust by the parents. The remainder of the purchase price was financed by a balloon note. Because of difficulties encountered by the trust in refinancing the balloon note, the parents of the still minor children decided to terminate the trust and transfer all of its assets to the parents. An action to ^dissolve the trust was filed in Jefferson Parish, and on June 14, 2001, a consent judgment was entered granting this relief, and transferring all trust assets to the parents. This judgment was recorded in St. Tammany Parish on the same date.

On July 5, 2001, the parents borrowed $641,000 from the Long Beach Mortgage Company (Deutsche Bank’s predecessor) and mortgaged the Beau Chene property to secure this loan. On March 10, 2003, Deutsche Bank commenced executory proceedings against the Savoie parents in St. Tammany Parish. It appears that the still minor children intervened in the suit claiming an ownership interest in the property and alleging that it was subject to yet other mortgages in favor of AmSouth Bank (Now Regions Bank). This case was set for trial on June 13, 2011, by which time the children were majors.

On May 13, 2011, the parents and children filed in Jefferson Parish a document styled “Petition for Nullity of Judgment” in the same case in which the trust had been dissolved on June 14, 2001. A consent judgment granting this relief was signed on the same day. None of the litigants in the St. Tammany suit were served with this document. When Deutsche Bank learned of the judgment it perfected the present appeal. Because of this proceeding, the St. Tammany trial has been continued.

The only issues presented for review here are whether Deutsche Bank has standing to appeal the judgment of May 13, 2011, purporting to annul the judgment of June 14, 2001, and if so, whether that judgment is valid.

STANDING TO APPEAL

Louisiana Code of Civil Procedure Article 2086 provides that “a person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.” Article 1091 provides that a third person having an interest in a pending action “to enforce a right related to or connected with the |4object of the pending action” has a right to intervene. In Mangano Consultants Inc. v. Bob Dean Enterprises, Inc., 05-449 (La.App. 5 Cir. 1/17/06), 921 So.2d 1081, this court set forth the twofold requirement for an intervention. First, the inter-venor must have a justiciable interest in, and a connexity to, the principal action. A justiciable interest is a right to seek redress against either the plaintiff or the defendant or both, and where those parties have an interest in opposing it. Second, the interest must be so related to the object of the principal action that a judgment on the principal action will have a direct impact on the intervenor’s rights.

Here, the plaintiffs in the action for nullity were asserting relief which would place in question ownership of a property on which the bank asserts a security interest. The relief sought by the petitioners in annulling the 2001 judgment dissolving the trust could potentially have an impact on the bank’s right to pursue executory relief under the terms of its mortgage. Therefore, until such time as the executory proceedings in St. Tammany Parish are resolved, the bank has a justiciable interest in opposing the relief that the plaintiffs seek in the Jefferson Parish nullity proceeding. Under these circumstances, the bank clearly had a right to intervene in the trial court, and it therefore has a right to appeal the judgment.

VALIDITY OF JUDGMENT

Louisiana Code of Civil Procedure Articles 2001-2006 establish the bases upon which a judgment may be nullified. Under Article 2002, a judgment may be nullified for vices of form if it is rendered 1) against a person not represented as required by law; 2) against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken; and 3) by a court which does not 1 shave jurisdiction over the subject matter of the suit. In the present case, none of these requirements are met.

The petition in the June 14, 2001, proceeding recites that it is being brought by Jennifer Robinson Savoie, the trustee. Ronald Savoie recited that he concurred in the action of the trustee. At the time this action was brought, Jennifer and Ronald, the parents of the minor children were not divorced or judicially separated. Pursuant to Louisiana Code of Civil Procedure Articles 683 and 4501, the parents of minor children who are not divorced or judicially separated may manage the property the children. Because all of the interested parties were proponents of the action to dissolve the trust and all parties consented to the judgment, no service was necessary. Finally, the Jefferson Parish court had jurisdiction over the trust because it was formed in that parish. It is clear that none of the requisites of Article 2002 were met here and there were thus no grounds to nullify the June 14, 2001, judgment under this article.

Article 2004 provides that a judgment may be annulled for fraud or ill practices. Although actions under Article 2002 may be asserted collaterally, actions for nullity under Article 2004 must be asserted in a direct action. Here, the nullity was asserted collaterally in the original suit in which the allegedly null judgment was brought, rather than by a direct action. Moreover, there are no allegations of fraud or ill practice in the May 13, 2011, petition. We recognize that the concept of “fraud or ill practices” is not limited to cases of actual fraud or wrongdoing, but encompasses situations where some improper practice or procedure operated, even innocently, to deprive a litigant of some legal right and where enforcement of the judgment would be inequitable. Russell v. Illinois Central Gulf Railroad, 96-2649 (La.1/10/97), 686 So.2d 817. Here, the only allegation made is that because the trust document provided that it was irrevocable, [fit was legal error to have terminated it. Moreover, the grounds stated for dissolution of the trust in 2001 were to prevent the trust from being sued for damages and avoid foreclosure on the Beau Chene property. There was clearly no fraud or ill practice involved in that dissolution action. Thus, even had the present action been brought directly, there are no grounds stated in the petition that would sustain a judgment of nullity. Therefore, the judgment rendered based upon the allegations made by plaintiffs in this collateral proceeding must be set aside.

For the foregoing reasons, the present judgment nullifying the previous judgment of June 14, 2001, is reversed.

REVERSED


author: DECUIR, Judge. SAUNDERS, Judge,

text:
    Linzie MORSE v. BIG TEX TRAILERS.
    No. 11-1335.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.
    Rehearing Denied June 20, 2012.

      Kevin L. Camel, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiff/Appellee, Linzie Morse.
    Matthew R. Richards, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendant/Appellant, Big Tex Trailers.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   DECUIR, Judge.

h Employer appeals a judgment of the workers’ compensation judge finding the claimant was injured on the job and entitled to supplemental earnings benefits, penalties and attorney fees.

FACTS

Linzie Morse returned to work at Big Tex Trailers after having carpal tunnel syndrome surgery. Eight weeks later, Linzie Morse alleged that he was injured in an unwitnessed fall on November 22, 2008, while working for Big Tex Trailers. He received medical treatment at West Cal-Cameron Hospital, on November 24, 2008, where he presented his personal insurance card and reported that he had fallen at home that morning. Subsequently, he filed an accident report at work. In the report, he claimed he fell on a piece of upturned floor mat caused by the customer leaving his office immediately prior to the fall.

He continued to work and the company paid medical benefits and a settlement of $15,288.00 representing twenty-eight weeks of indemnity benefits at the maximum rate base on his 14% impairment rating. Only after Big Tex later terminated him did Morse file a claim for continuing benefits. This litigation ensued.

The workers’ compensation judge found that Morse established a work-related injury and was entitled to supplemental earnings benefits based on zero earnings. In addition, the workers’ compensation judge awarded $2,000.00 in penalties each for failure to pay medicals and indemnity benefits as well as $8,000.00 in attorney fees. Big Tex lodged this appeal and Morse answered seeking additional attorney fees for appeal.

| ¡¿DISCUSSION

An appellate court may not disturb a trial court’s evaluation of credibility and factual determinations unless the record reveals that the trial court’s decision is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). In workers’ compensation cases, an injured worker must prove, by a preponderance of the evidence, that his disability was caused by a work accident. Burns v. Beauregard Nursing Ctr., 94-181 (La.App. 3 Cir. 10/5/94), 643 So.2d 443. The injured employee’s testimony alone may be enough to meet the burden of proof as long as 1) no other evidence contradicts the employee’s version of the accident, and 2) the testimony is corroborated by circumstances following the alleged incident. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La. 1992). “If the employee’s testimony contains inconsistencies and discrepancies, then the injured employee’s testimony alone will not be enough to prove his injury occurred on the job.” Guilbeaux v. Office of Dist. Attorney, 07-89, p. 2 (La. App. 3 Cir. 5/30/07), 957 So.2d 959, 961.

An injured worker’s disability is presumed to have resulted from an accident, if before the accident he was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing either that there is sufficient medical evidence to show there to be a causal connection between the accident and disabling condition, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal .connection. Walton v. Normandy Village Homes Assoc., Inc., 475 So.2d 320 (La.1985).

Big Tex alleges that the workers’ compensation judge erred finding Morse established a work-related accident. We agree.

laThe workers’ compensation judge accepted Morse’s testimony that he was injured at work on November 22, 2008, despite the fact that it directly contradicted the statement he gave when he first received medical treatment at the West Cal-Cameron Emergency room. We note that this was not simply one check on a form. The form indicated that the accident happened on November 24, 2008, the day Morse sought treatment, specifically reiterating “this a.m.,” and indicated that the injury happened at home. Morse offered no explanation why this was allegedly incorrect and the rest of the form was completely accurate. This was Morse’s first official statement relating to the injury. It was closest in time to the injury and was prior to Morse filing an accident report at work. Moreover, despite having experience with a prior compensation claim, Morse presented his personal insurance information when seeking treatment at the West Cal-Cameron Emergency room. It is true that once Morse filed his accident report, he consistently reported a work-related accident to health care providers. However, the corroborating evidence relied on by the workers’ compensation judge lacks substance.

Morse also asserted that he had told no one about the accident except his fiancée and yet when she was not available for trial, his daughter testified that Morse told her that he had fallen at work. The workers’ compensation judge points to corroborative medical evidence, but none of it corroborates that the accident happened at work. Finally, the workers’ compensation judge points to Big Tex’s initial investigation of the accident as corroboration immediately prior to penalizing it for failure to timely pay benefits and medical payments. None of this constitutes independent corroboration.

Accordingly, we find the workers’ compensation judge’s determination that Morse sustained an injury at work to be manifestly erroneous.

|4DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge is reversed. All costs of these proceedings are taxed to claimant, Linzie Morse.

REVERSED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, Judge,

dissents and assigns written reasons.

|TI disagree with the majority opinion that the WCJ was manifestly erroneous in finding that Morse carried his burden to prove that an accident happened at work on or about November 22, 2008. The majority opinion cites Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La. 1992) for the following well-known premise: “[a] worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Following this citation, the majority opinion states, “[i]f the employee’s testimony contains inconsistencies and discrepancies, then the injured employee’s testimony alone will not be enough to prove his injury occurred on the job” and cites Harris v. General Motors, 577 So.2d 1160 (La.App. 2 Cir.l991)(emphasis added). Given the ultimate result in Bruno, I do not agree with the citation to Harris as an explanation of how our supreme court intended for the Bruno framework to be applied.

In Bruno, much like the case before us, the court at the trial level found that the claimant carried her burden to prove that a work related accident transpired, and this court will reverse that finding. I would note that the claimant in Bruno (1) | gdid not provide a. history of the accident to the treating physician; (2) did not immediately notify her employer of the accident; (3) did not immediately file an accident report; and (4) has a history of injury to the same area of where she claimed she was injured in the work accident.

Regardless of all these “discrepancies,” our supreme court reversed this court’s opinion and found that the trial court was not manifestly erroneous in giving credence to the claimant’s testimony. Thus, the majority opinion’s citation to Harris that if there are inconsistencies and discrepancies, then the employee’s testimony “will not” be enough to carry his or her burden of proof is not dictated by the result reached by our supreme court in Bruno.

In the case before us, Morse consistently reported a history of a work related accident to his treating physician, notified his employer of the accident, and filed an incident report detailing the accident as soon as practical. Moreover, Morse’s daughter, Angela McNeil, confirmed that he informed her of his fall at work.

The majority opinion focuses on a single medical record where a history given by Morse to the Emergency Room staff was that the accident occurred at home. Additionally, the majority opinion points out that Morse iterated he only told his fiancée of the work related accident, but his daughter, rather than his fiancée, testified that he told her about the work accident. The WCJ was aware of these inconsistencies cited by the majority opinion and chose to reconcile Morse’s testimony.

To me, Morse’s inconsistencies and discrepancies are far less damning that those of the claimant in Bruno. The medical records, sans the single ER record, and the testimony of Morse’s daughter corroborate Morse’s testimony and support a finding that an accident and injury occurred at work. Given our supreme court’s directive and the manifest error standard of review, I do not feel that this decision |3was in error. I feel these two items are not enough to find that the WCJ was manifestly erroneous in giving credence to Morse’s testimony. I do feel that these two items could provide a basis for the WCJ to disregard Morse’s testimony. However, in my view, the WCJ was faced with “two permissible views of the evidence” and its “choice between them cannot be manifestly erroneous or clearly wrong.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990) (citing Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081 (La.1983) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978)). Accordingly, I dissent.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Kerry PAUL.
    No. 2011-KA-0252.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Kevin V. Boshea, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

liOn July 4, 2009 around 6:00 p.m., Melvin’s Bar, owned and operated by Scott Hoerner, located on 2112 St. Claude Avenue, was robbed at gun point. Matthew Morris, the bartender, and three patrons were in the bar when the robbery occurred. Mr. Morris complied with the robber’s demands for the money. Shortly thereafter, Mr. Morris and the three patrons were ordered into the bathroom of the bar. Once the perpetrator fled the premises, Mr. Morris called 911 to report the incident; and the three patrons fled the scene.

As he waited for the police to arrive, Mr. Morris viewed the surveillance video from the camera that overlooked the bar. Later, on July 5, 2009, he made an identification of the robber from the photos shown to him by a New Orleans Police Department officer. He signed the back of the photo of Kerry Paul as the individual he observed rob the bar the previous day.

Defendant Kerry Paul was charged by bill of information on September 28, 2009 with two counts of armed robbery in violation of La. R.S. 14:64. Defendant was tried by a twelve-person jury and found guilty as charged as to count two for armed robbery, but was deadlocked as to the first count resulting in a mistrial on 12that one count. The trial court sentenced the defendant as a third felony offender to seventy years at hard labor with credit for time served. Defendant filed motion to reconsider sentence, which the trial court denied. Defendant appeals his conviction and sentence for armed robbery. For the reasons that follow, we affirm.

On appeal, Mr. Perry sets forth the following assignments of error:

1. The trial court erred by not allowing the defendant to baekstrike a previously accepted juror and fill the vacancy with a previously stricken juror;
2. The evidence is insufficient to support the conviction;
3. The trial court erred by prohibiting the defendant from presenting a complete defense at trial;
4. The trial court erred in prohibiting defense counsel from conducting a full cross-examination of the State’s witnesses;
5. The trial court erred by denying the defense Motion for Mistrial; and
6. The sentence is excessive, and the trial court erred in the denial of the motion to reconsider sentence.

In his first assignment, the defendant argues that the trial court erred by not allowing defense counsel to baekstrike prospective jurors during the jury selection process. Backstriking of jurors is authorized by La.C.Cr.P. art. 799.1, which provides:

Notwithstanding any other provision of law to the contrary, and specifically notwithstanding the provisions of Article 788, in the jury selection process, the state and the defendant may exercise all peremptory challenges available to each side, respectively, prior to the full complement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaininy peremptory challenge to one or more of the jurors previously accepted. No juror shall be sworn in until both parties agree on the jury composition or have exercised all challenges available to them, unless otherwise agreed to by the parties.

|sLa.C.Cr. P. art. 799.1. (emphasis added).

In this case, the transcript clearly indicates that after exhausting his preemptory challenges, the defense sought to trade out two jurors. The trial court denied defense’s plea to allow him to alter the jury line-up because he made a mistake. The trial court allowed defense counsel to put his objection on the record. Thereafter, the trial court judge stated:

Okay. I mean, I’m going to put that on the record. But I understand what you’re saying. But, as far as the sheets go, I went by your sheet and I even gave you an opportunity after you selected the people to go ahead and exercise your 12th strike, even if you wanted to back strike to the prior jury panel.

Although the assignment of error is styled as a backstrike issue, it does not fit within the statutory limits of La.C.Cr.P. art. 799.1. In the instant case, once all jurors were selected and preemptory exceptions were exhausted, defense counsel sought to switch two jurors arguing that he inadvertently struck Julie Alexander, when he meant to strike Callender Herman, and the trial court refused to allow him to correct his error. Since there is no legal authority that allows for such a maneuver, we cannot find that the trial court erred by not allowing the substitution.

As to his second assignment of error, Mr. Paul argues that the evidence presented at trial was insufficient to uphold a conviction for armed robbery. Specifically, he argues that the evidence presented at trial was insufficient to identify him as the perpetrator of the armed robbery.

In State v. Stewart, 2004-2219, p. 6 (La. App. 4 Cir. 6/29/05), 909 So.2d 636, 639, this Court discussed the sufficiency standard to be employed when a defendant disputes proof of identity:

When identity is disputed, the State must negate any reasonable probability of misidentification in order to satisfy its burden under Jackson v. Virginia [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ]. The reviewing court must examine the reliability of an | ^identification according to the test set out in Manson v. Brathwaite, (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation.
(emphasis added), (citations omitted). See also State v. Mathieu, 2007-0204 (La.App. 4 Cir. 2/27/08), 980 So.2d 716.

A positive identification by only one witness is sufficient to support a conviction. State v. Neal, 2000-0674, p. 11 (La.6/29/01), 796 So.2d 649, 658. A victim’s or witness’ testimony alone is sufficient to support the verdict, if the Manson v. Brathwaite factors are satisfied. At trial, the State produced identification testimony from Matthew Morris, Anthony Groves, Officer Armond Clavo, and Scott Hoerner.

Mr. Morris was tending the bar at Melvin’s Bar on the day of the robbery. He testified that he “made eye contact” and got “a good look” at the gunman’s face for approximately twenty to thirty seconds. He estimated that he interacted with the gunman for two to three minutes during the course of the robbery, and that the gunman stood two to three feet away from him with the most distance between the two men at any time was ten feet. Mr. Morris picked the defendant out of a photographic lineup within “less than a minute” and also identified him at trial and was “100 percent certain” that the defendant was the person who robbed him.

Mr. Groves testified that he knew the defendant as one of his steak customers whom he had met on “several” and “quite a few” occasions. Further, Mr. Groves recognized the defendant as the robber “within three seconds” of|fiviewing the surveillance footage. He also identified the defendant in court as the robber on the surveillance footage.

Likewise, Officer Clavo “immediately” recognized the defendant by name as the robber depicted in the photo made from the surveillance video. Officer Clavo was familiar with the 1900 block of Pauger Street where the gunman was identified as living. Officer Clavo’s family was from that portion of the First District, and he patrolled that area on a regular basis since his assignment to the First District in 2002. Officer Clavo also viewed the surveillance video and had no doubt that the robber depicted therein was the defendant.

Mr. Hoerner, the owner of Melvin’s Bar, testified that he learned of the robbery from Matthew Morris. Upon arriving at the bar, Mr. Hoerner made a copy of the surveillance video for the police. He also made still photos of the gunman as depicted on the surveillance tape.

Considering the Manson v. Brathwaite factors in relation to the testimony given by the State’s witnesses, we find sufficient evidence was presented to the jury that the defendant was the perpetrator of the armed robbery and that there was no substantial likelihood of misidentification.

In his third and fourth assignments, the defendant maintains that he was prohibited from presenting a complete defense at trial as-a result of the trial court refusing to allow him to offer impeachment evidence as to one witness, Officer Clavo’s and in limiting his cross-examination of another witness, Mr. Groves.

La. C.E. art. 609.1(A) provides that in a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to certain limitations. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is | (¡permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal. La. C.E. art. 609.1(B). Further, La. C.E. art. 607(C) allows a witness’ credibility to be attacked intrinsically by examining him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony.

Officer Clavo

The defendant sought to impeach Officer Clavo through introduction of evidence of his alleged six day suspension from the New Orleans Police Department in 2005 for untruthfulness relating to a 2004 incident. The record herein indicates that the trial judge specifically found that Officer Clavo was not disciplined for untruthfulness when she reviewed his record. The trial judge noted that a complaint was made against Officer Clavo and an investigation was conducted; however, no punishment was given in response to the allegations made (use of force during arrest); only a letter of reprimand was issued. The alleged truthfulness aspect of the incident related to Officer Clavo’s claim that he reported the allegations immediately following the incident, as required by the department. The outcome of the complaint was that the truthfulness violation was “non-sustained.” Thus, we do not find the trial court abused its discretion by not allowing the defendant to use Officer Cla-vo’s disciplinary record in an effort to impeach him. See State v. Pleasant, 2010-1533 (La.App. 4 Cir. 5/18/11), 66 So.3d 51; State v. Thompson, 2008-0874, p. 7 (La. App. 4 Cir. 4/8/09), 10 So.3d 851, 855 writ denied, 2009-1044 (La.1/29/10), 25 So.3d 827.

| rjAnthony Groves

The defendant also contends that the trial court’s ruling curtailed his ability to ascertain the nature of the pending criminal charge against the State’s witness, Mr. Groves, was a violation of his right to fully cross-examine the witness.

At trial, the defendant sought to impeach Mr. Groves via his criminal record. Defense counsel questioned Mr. Groves about convictions as well as criminal charges pending against him. The defense was able to elicit whether Mr. Groves had any pending charges but was prohibited from asking him the nature of the charges. Although every witness, by testifying, subjects himself to examination relative to his criminal convictions, no inquiry is permitted into matters for which there has only been an arrest. La. C.E. art. 609.1.

Nevertheless, in support of his argument, the defendant cites State v. Vale, 95-1230 (La.1/26/96), 666 So.2d 1070, 1072, for the proposition that the possibility that the State may have some leverage over a witness due to that witness’s pending criminal charges is recognized as a valid area of cross-examination. A witness’ hope or knowledge that he will receive leniency from the State in exchange for his testimony is highly relevant to establish bias or interest. State v. Bowie, 2000-3344, p. 10 (La.4/30/02), 813 So.2d 377, 385. A witness’ bias or interest may arise from arrests, pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the State regarding the conduct. Vale, 95-1230 p. 4, 666 So.2d at 1072.

The record indicates that prior to trial, the prosecutor notified the trial court and defense counsel that Mr. Groves had a pending charge against him in East IsBaton Rouge Parish. In addition, in an exchange with defense counsel and the trial judge, the prosecutor noted for the record that she had not made any promises to Mr. Groves to secure his testimony at trial and what Mr. Groves could expect in exchange for his cooperation.

During direct examination, the prosecutor elicited Mr. Groves’ criminal convictions, which were possession of cocaine in 1990; illegal use of a credit card in 1998; theft in 1988; receiving stolen goods and theft in 2005; theft and illegal use of a motor vehicle in 2007, and theft in 2009. Mr. Groves emphatically denied receiving promises or inducements in order to testify. He agreed that the prosecutor told him she would notify the East Baton Rouge District Attorney’s Office that he cooperated and testified in this matter; however, the prosecutor told him that after he had decided to testify. The testimony was sufficient to develop any bias on the part of Mr. Groves. We do not find that the trial court abused its discretion in limiting the cross-examination of Mr. Groves.

As to his fifth assignment of error, the defendant argues that the trial judge committed reversible error in not granting a mistrial based on the statement made by the prosecutor during closing rebuttal argument, namely that the defendant “does have a defined lower lip, we haven’t had the opportunity to hear him speak”... “But who’s to say”. The defendant argues that this improperly referred to his failure to testify in his own defense.

A mistrial may be granted for references made to a defendant’s failure to testify under two separate criminal code articles. La. C. Cr. P. art. 770 provides for a mandatory mistrial in certain instances, and states:

1 nUpon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(3) The failure of the defendant to testify in his own defense ...

Thus, upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the district attorney, during the trial or in argument, refers directly or indirectly to the failure of the defendant to testify in his own defense. La. C. Cr. P. art. 770(3). This code article protects the defendant’s Fifth Amendment right against self-incrimination by preventing attention being drawn directly or indirectly to the fact that the defendant has not testified on his own behalf. State v. Mitchell, 2000-1399 (La.02/21/01), 779 So.2d 698. “To warrant a mistrial, the inference must be plain that the remark was intended to bring to the jury’s attention the failure of the defendant to testify.” State v. Stephenson, 412 So.2d 553, 557 (La.1982).

The trial judge has broad discretion in controlling the scope of closing argument. State v. Prestridge, 399 So.2d 564, 580 (La.1981). When testing the permissibility of the statement and whether such was direct or indirect, the context of the statement is also crucial. La. C. Cr. P. art. 770 (requiring a mandatory mistrial) only applies to statements referring to a defendant’s failure to testify. State v. Smith, 336 So.2d 867 (La.1976). As used in art. 770, the word “testify” means to give testimony under oath at the trial. Id. at 868.

One of the issues at trial in this case was whether the perpetrator had gold teeth. While the defendant’s brother and Officer Clavo testified that the defendant has always had gold teeth, neither of the victims nor did other State’s witnesses get a good enough look at the defendant’s mouth to say whether the defendant had |ingold teeth. In the instant case, the defense argued that the defendant had numerous gold teeth and no one that identified him as the perpetrator recalled seeing gold teeth. Thus, there was a misidentification. The reference made in closing arguments, taken in context, referred to how exposed the gold teeth are when the defendant speaks and the ability for the teeth to be clearly observed during the commission of the crime. There is nothing in the record to suggest that the statement was meant to draw the jury’s attention to the defendant’s failure to testify. Accordingly, we find that the comment did not warrant the granting of a mistrial.

ASSIGNMENT OF ERROR # 6

In a final assignment, the defendant argues that his sentence is excessive. In conjunction with his argument, the defendant argues that the trial judge failed to state reasons for sentencing the defendant as required by La.C.Cr. P. art. 894.1.

Article I, section 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. La. Const. art. I, 20; State v. Landry, 2003-1671, p. 7 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239-1240 (sentence is constitutionally excessive if it is grossly out of proportion to the severity of the crime and is nothing more than purposeless imposition of pain and suffering). A trial judge has broad discretion in imposition of sentences within statutory limits but shall, pursuant to La. C.Cr.P. art. 894,1(C), “state for the record the considerations taken into account and the factual basis therefore in imposing sentence.” La.C.Cr.P. art. 894.1(C). Even a sentence within the statutory limit may violate a defendant’s constitutional right against excessive punishment, Id.; State v. Dorthey, 623 So.2d 1276, 1280 (La.1993), and, accordingly, imposition of |na sentence, even those within the statutory limit, may be reviewed on appeal. State v. Caston, 477 So.2d 868 (La.App. 4 Cir.1985).

Although rigid compliance with Article 894.1 has been deemed unnecessary where the record clearly shows an adequate factual basis for the sentence imposed, the record should reflect the considerations taken into account by the trial court in determining the sentence to aid the reviewing court in determining whether the sentence is warranted in light of the particular circumstances of the case. See State v. Quebedeaux, 424 So.2d 1009 (1982).

The maximum penalty for armed robbery is ninety-nine years imprisonment at hard labor. La. R.S. 14:64. The defendant in this case was sentenced as a third felony offender under the Habitual Offender Law (La. R.S. 15:529.1(A)(3)(a)), which calls for a sentence of “determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.” Accordingly, the mandatory sentencing range available to defendant as a multiple offender was sixty-six years to one hundred ninety-eight years at hard labor. The defendant received a sentence of seventy years, only four years longer than the minimum sentence allowed.

The minimum sentences imposed by the Habitual Offender Law are presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. The circumstances in which the presumption is rebutted and a departure is warranted are rare. State v. Lindsey, 99-3302, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343. To rebut the presumption, a defendant must clearly and convincingly show he is exceptional by establishing that due to “unusual circumstances, the defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the | ^gravity of the offense, and the circumstances of the case.” Id. Contrary to this defendant’s contention, this is not such a rare case. He has failed to present any evidence to rebut the presumption that his sentence is constitutional, especially when considering that a seventy year sentence was the sentence he bargained for when he pled guilty to being a multiple offender. We, therefore, find the sentence imposed in this case is not excessive.

CONCLUSION

For the reasons discussed Kerry Paul’s conviction and sentence are affirmed.

AFFIRMED

      . Count one related to an armed robbery at the John Bar.

        . Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

      . On July 25, 2011, the defendant filed a motion to supplement the record with Anthony Groves’ criminal record. The Motion to Supplement the Record is denied.


author: DENNIS R. BAGNERIS, SR., Judge. BONIN, J.,

text:
    ORLEANS DISTRICT REDEVELOPMENT CORPORATION v. Mr. and Mrs. Joseph FEIN, III and Mr. and Mrs. Jerome Fein, their Heirs, Assigns and Successors.
    No. 2011-CA-1634.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2012.

      Ryan P. Reece, Allen H. Borne & Associates, New Orleans, LA, for Plaintiff/Ap-pellee, Orleans District Redevelopment Corporation, Inc.
    Jane F. Mentz, Kelly A. Loisel, Faia & Associates, LLC, Metairie, LA, for Defendants/Appellants, Mr. and Mrs. Joseph Fein, III, and Mr. and Mrs. Jerome Fein, their Heirs, Assigns and Successors.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   DENNIS R. BAGNERIS, SR., Judge.

| defendants, Mr. and Mrs. Joseph Fein III and Mr. and Mrs. Jerome Fein, appeal a judgment of the trial court that granted Plaintiffs, Orleans District Redevelopment Corporation’s, motion for summary judgment. The motion for summary judgment sought to quiet title to immovable property located at 4616-18 S. Johnston Street, New Orleans, Louisiana. Because we find there are genuine issues of material fact that preclude summary judgment, we hereby reverse the judgment of the trial court and remand the matter for further proceedings.

FACTS

Mr. and Mrs. Joseph Fein, III and Mr. and Mrs. Jerome Fein were the record owners of the immovable property located at 4616-18 S. Johnson Street in Orleans Parish from June 1984 to November 11, 2003. However, on November 12, 2003, the property was sold to LeBorne II at a tax sale for $15, 839.83. Following the tax sale, the collector of ad valorem taxes for the city executed a tax deed on January 12, 2004, in favor of LeBorne II, transferring “Mr. and Mrs. Joseph Fein III” rights, title and interest in and to the property for non-payment of taxes for the years 1997-2002, totaling $15,839.83. According to the January 12, 2004, tax [2deed, notice of the unpaid ad valorem taxes was mailed to Mr. and Mrs. Joseph Fein III only. The tax deed was filed in the Orleans Parish Conveyance Office on February 27, 2004. On April 7, 2009, LeBorne II transferred all of its right, title and interest in and to the subject property by quitclaim deed to Orleans District Redevelopment Corporation (“ODRC”).

On April 29, 2009, ODRC filed a petition to quiet tax title pursuant to La. Constitution Article VII § 25 against defendants. On May 26, 2009, the trial court appointed a curator to represent the defendants after the Orleans Parish Civil | .(¡Sheriffs Office unsuccessfully attempted to serve them. The curator answered the petition to quiet title on June 8, 2009. Shortly thereafter, the curator successfully located defendants and on June 25, 2009, defendants, on their own behalf, filed a second answer.

On February 3, 2011, ODRC filed a motion for summary judgment quieting title to the property. ODRC argues in its motion that summary judgment should be granted to quiet title because the defendants failed to file suit annulling the tax sale within six months following the service of its petition to quiet title. In support of its motion for summary judgment, ODRC attached (1) a certified copy of the tax sale deed, (2) a certified copy of the quitclaim deed, and (3) an affidavit of Allen H. Borne, Jr., Manager of LeBorne II, L.L.C. A hearing on the motion for summary judgment was held on May 13, 2011; however there was a dispute as to whether defendants filed an opposition to the motion for summary judgment and the trial court granted ODRC’s motion for summary judgment without permitting oral argument from either side.

On May 20, 2011, defendants filed a motion for new trial arguing that the opposition was in fact filed on March 17, 2011, and that the granting of the summary judgment in this matter was both premature and contrary to law. Specifically, the motion for new trial argues that: (1) the January 2004 tax sale was an absolute nullity because the tax collector conducting the sale failed to give |4proper notice to all defendant owners of the property, (2) material facts exist as to whether notice was actually delivered to all defendants and as to the contents of such alleged notice since the parties have not conducted thorough discovery on these issues; (3) the court failed to recognize that the continuous, open possession of the property on behalf of the defendant owners operated to prevent prescription from commencing thus, the tax sale purchase could not legally confirm title to the property; and (4) ODRC did not file its petition in accordance with La. R.S. 47:2266 since “ODRC” failed to notify and name in its ordinary proceeding all |5necessary parties whose interests the petitioner seeks to be terminated, failed to include the time and place of the sale, and failed to include the name of the officer who made the sale.” In support of the motion for new trial, defendants attached (1) an affidavit of Henry Mentz, Jr. who testified that he, on March 17, 2011, delivered an opposition to motion for summary judgment to the Clerk of Court as well as to Judge Medley’s chambers, and (2) a copy of the memorandum in opposition to motion for summary judgment with attachments.

In opposition to the motion for new trial, ODRC argues that (1) defendants are procedurally barred from assailing the tax sale deed since they did not institute an action to annul the tax sale within six months of being served with the petition to quiet title, and (2) the trust is not an indispensable party to the instant litigation because defendant Louise Fein died on December 26, 2009, which was twenty five days after the six month preemptive period for instituting an annulment action had expired.

A hearing on the motion for new trial was held on July 8, 2011, and after brief arguments, the trial court again granted ODRC’s motion for summary judgment. Defendants now appeal this final judgment.

STANDARD OF REVIEW

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, |fiand admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. La. C.C.P. art. 966(C)(2) provides that where, as in the instant case, the party moving for summary judgment will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law.

DISCUSSION

On appeal, defendants argue that the trial court erred in granting ODRC’s motion for summary judgment because: (1) inadequate notice was provided to at 17least two of the four record owners of the property; (2) two of the four property owners were given no notice at all of the impeding tax sale; (3) the requirements of the tax sale were not met; (4) the procedural requirements of the petition to quiet title were not met, thus if the six month prescriptive period to annul were relevant, that prescriptive period has not begun; (5) an indispensable party to the action has not been joined; (6) the original record owners have maintained open and continuous physical possession of the property in question, and to date, continue to do so.

The first issue to be addressed by this Court is whether the original tax sale was an absolute nullity due to inadequate notice since this issue could be dis-positive of the case. Under the Fourteenth Amendment to the United States Constitution and La. Const. Art. I, § 2, a person is protected against a deprivation of his life, liberty or property without due process of law. Hamilton v. Royal Intern. Petroleum Corp., 2005-846, p. 9 (La.2/22/06), 934 So.2d 25, 32 (citation omitted). The fundamental requirement of procedural due process is notice and the opportunity to be heard at a meaningful time and in a meaningful manner. Id.

La. Const, art. VII, § 25 requires the tax collector to provide notice to a delinquent taxpayer. In enacting former La. R.S. 47:2180, which was in effect at the time of this tax sale, the legislature established the manner in which notice of delinquencies in immovable property taxes should be provided in compliance with La. Const, art. VII, § 25. Specifically, La. R.S. 47:2180 provides:

A. (l)(a) On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes which |shave been assessed to him on immovable property or to the record owner of the property for which the taxes are delinquent, or to the actual owner in the event the record owner is deceased, written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law.
(b) On the second day of January of each year, or as soon thereafter as possible, in each year following the year in which the original notice of delinquency is made pursuant to Subparagraph (a) herein, the tax collector shall address to each taxpayer who has not paid the taxes which have been assessed to him on immovable property a written notice in the manner provided herein. The notice shall specify the property upon which the taxes are delinquent, the amount of taxes due, and the manner in which the property may be redeemed. The notice shall be made each year until the property is no longer redeemable as provided in Article VII. Section 25(B) of the Constitution of Louisiana. The cost of mailing the notice shall be considered cost for purposes of redemption.
(2) Any taxpayer may designate one additional person to be notified in the event of a delinquency. Such designated person shall receive the same notification as the delinquent taxpayer and such notice shall be made in the manner provided herein.
B. The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein, provided that in cities containing a population of over fifty thousand persons, the tax collector may either send this notice by certified mail or may make personal or domiciliary service on the taxpayer. In the event the certified notice is returned as being undeliverable by the post office, the tax collector may comply with Article 7 Section 25 of the Constitution of Louisiana and the provisions of this Section by advertising the tax debtors property in the advertising required for unknown owners in Subsection C of this Section. After the tax collector shall have completed the service by the notices herein required, either by mail or by personal domiciliary service, he shall make out a proces verbal stating therein the names of delinquents so notified, their post office addresses, a brief description of the property, the amount of taxes due and how the service |flof notice was made. Such proces verbal shall be signed officially by him in the presence of two witnesses and filed, in the parishes other than the parish of Orleans, in the office of the clerk of court for recording and preservation. In the parish of Orleans, such proces verbal shall be filed in the office of the state tax collector for the city of New Orleans and preserved for record. This proces verbal shall be received by the courts as evidence. The tax collector shall be entitled to collect actual mailing costs of each certified, with return receipt, notice, and mileage shall be charged for service of this notice. A like charge will be made if the property is adjudicated to the state or any subdivision thereof.
C. The tax collector shall publish one general notice substantially in the form set forth herein, addressed to all known owners of assessed immovable property situated in his parish, and to non-resident owners of such property whose post office address is unknown, in which he shall describe the property as described in the tax roll. Such notice shall be published once a week for two weeks in a newspaper published in his parish, or if there be none published in the parish, then such notice shall be given in the manner provided by law for judicial sales. He shall pay for the publication, and shall be entitled to collect as costs therefor the pro rata share of the publication costs from each unknown owner or from the property assessed to him. The collector shall certify on his tax rolls that he has published the notices, and the certificate on either roll shall make full proof thereof until disproved in a judicial proceeding.
D. Within thirty days after the tax sale, or as soon thereafter as possible, the tax collector shall research the records of the clerk of court for transfers on all property sold. Within thirty days of finding a transfer of any property sold at a tax sale, the tax collector shall attempt to serve the new owner with a certified notice that the property was sold and include in the notice the amount necessary to redeem the property. This notice shall also advise the owner that the property may be redeemed at any time within three years from the date recordation of the sale. This shall serve as the required notice to the record owner in Subsection A of this section.

In discussing La. R.S. 47:2180, the Louisiana Supreme Court in Lewis, stated “in order to give property owners reasonable notice so as not to deprive | inthem of constitutionally protected property rights, the tax collector is required to provide ‘each taxpayer’ with written notice, sent by certified mail return receipt requested, alerting each record owner of the immovable property that the owner’s failure to pay the taxes within twenty days will result in the sale of the property.” Lewis v. Succession of Johnson, 05-1192, p. 8 (La.4/4/06), 925 So.2d 1172, 1177-1178. The Supreme Court stated that “a sale of property for delinquent taxes is invalid if the tax collector has failed to comply with the legal requirements for giving notice to the tax debtor and, if in consequence, the tax debtor did not have notice prior to the sale.” Id. p. 9, 925 So.2d at 1177-1178. Further, the Supreme Court held “that each co-owner is entitled to individual written notice of delinquent taxes . because alienation by tax sale of immovable property, owned in indivisión, without notice to each co-owner deprives the owners of due process.” Id. p. 15, 925 So.2d at 1181.

After reviewing the record, we agree with the defendants that summary judgment in this matter was premature as it is unclear whether all four property owners received notices of tax delinquency and notice of the tax- sale. The only document in the record is the tax sale deed itself; however, it states that notice was only sent to Mr. & Mrs. Joseph Fein III. The affidavits of Joseph Fein, Jerome Fein, and Mary Ryan Fein, which are attached to defendants’ opposition for summary judgment, allege that they did not receive notice of the tax delinquencies nor the tax sale and that the only notice they received of a tax sale on their property was through the petition to quiet title. Because lack of notice to all co-owners provides grounds to invalidate the tax sale, we hereby reverse the granting of the summary judgment and remand this matter to the trial court as there are genuine Inissues of fact concerning whether notice was properly provided to the property owners.

For the foregoing reasons, the judgment of the trial court is reversed and this matter is remanded for further proceedings.

REVERSED AND REMANDED.

BONIN, J., concurs with additional reasons.

BONIN, J.,

concurs with additional reasons.

|,I concur with additional reasons. The plaintiff argues that it is too late for the defendants to file an action to annul the tax sale because more than six months have expired since the defendants were served with citation and petition in this matter and no proceeding to annul the tax sale was timely instituted. See La. Const, art. VII, § 25(C); La. R.S. 47:2266 A. But the plaintiff has not established that its timeliness in giving notice to all of the defendants of the tax sale. See La. Const, art. VII, § 25(C) (“A notice of sale shall not be served until the final day for redemption has ended. It must be served within five years after the date of the recordation of the tax deed if no notice is given.”) Here, the according to the petition, the tax-sale deed was recorded on February 27, 2004; the lawsuit, however, was not even filed until April 29, 2009. Moreover, the plaintiff itself in this lawsuit did not acquire an interest in the property until April 7, 2009, after the five-year period had expired.

Because there is a genuine issue of material fact whether all of the named defendants were given notice of the tax sale, the trial court was wrong to conclude as a matter of law that the six-month period for filing an annulment action was dispositive of the defendants’ right to redeem then-property by paying the overdue taxes.

      . On the date of the tax sale, the provisions of La. Const. Art. VII, § 25, pertinent to this matter, provided:
      (A) Tax Sales. (1) There shall be no forfeiture of property for nonpayment of taxes. However, at the expiration of the year in which the taxes are due, the collector without suit, and after giving notice to the delinquent in the manner provided by law shall advertise for sale the property on which the taxes are due. The advertisement shall be published in the official journal, as provided by law for sheriff's sales, in the manner provided for judicial sales. On the day of sale, the collector shall sell the portion of the property which the debtor points out. If the debtor does not point out sufficient property, the collector shall sell immediately the least quantity of property which any bidder will buy for the amount of the taxes, interest, and costs. The sale shall be without appraisement. A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.

      (B) Redemption. (1) The property sold shall be redeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, five percent penalty thereon, and interest at the rate of one percent per month until redemption.
      ⅜ ⅜ ⅜ ⅝
      (C) Annulment. No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale. A notice of sale shall not be served until the final day for redemption has ended. It must be served within five years after the date of the recordation of the tax deed if no notice is given. The fact that taxes were paid on a part of the property sold prior to the sale thereof, or that a part of the property was not subject to taxation, shall not be cause for annulling the sale of any part thereof on which the taxes for which it was sold were due and unpaid. No judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until ten percent per annum interest on the amount of the price and taxes paid from date of respective payments are paid to the purchaser; however, this shall not apply to sales annulled because the taxes were paid prior to the date of sale.
      (D) Quieting Tax Title. The manner of notice and form of proceeding to quiet tax titles shall be provided by law.

      . Although the opposition to the summary judgment is missing from the record, counsel for plaintiff acknowledged at the hearing that there was an opposition filed. Further, defendants filed an affidavit of Henry Mentz who, on May 26, 2011, testified that on March 17, 2011, at 11:45 a.m., he "filed a Motion and Order for Continuance of Rule to Show Cause and a Memorandum in Opposition to Motion for Summary Judgment” and that he "immediately after filing said Motion and Memorandum with the Clerk of Court, ... walked an original copy of the pleadings to the chambers of the Honorable Lloyd J. Medley, ... for the setting of a new hearing date and for delivery of the Memorandum.”

      . La. R.S. 47:2266. Procedure to quiet tax titles
      A.(1) After expiration of the redemptive period, an acquiring person may institute an ordinary proceeding against the tax sale parties whose interests the petitioner seeks to be terminated. The petition shall contain a description of the property, the time and place of the sale, and the name of the officer who made the sale, the page and record book and date of filing of the tax sale certificate, and for adjudicated properties sold or donated by a political subdivision, reference to the page of record book and date of filing of the sale or donation, notice that the petitioner is the holder of tax sale title to the property by virtue of tax sale or is the owner of the property by virtue of a sale or donation of adjudicated property, and notice that the title and full ownership in the property will be confirmed unless a proceeding to annul is instituted within six months after the date of service of the petition and citation. This suit shall be brought in the parish in which the property is located unless it lies in two or more parishes, in which case this suit may be instituted in either of the parishes.
      (2) The petition and citation shall be served as in ordinary suits; however, if a tax sale party is a nonresident of the state, is unknown, or his residence is unknown, the court shall appoint a curator ad hoc to represent hi and receive service. The curator shall receive a reasonable fee for his services to be fixed by the court in each suit, which shall be taxed as costs of suit. If no proceeding to annul the sale has been instituted after the lapse of six months after the date of service of petition and citation, judgment shall be rendered quieting and confirming the title and the full ownership interest therein.
      B. In all cases when tax titles have been quieted by prescription of five years under the provisions of Article VII, Section 25 of the Louisiana Constitution, the purchaser, donee, or his heirs or assigns may, either obtain a judgment of the court confirming the title by suit in the manner and form in Subsection A of this Section, except that he delay for answer shall be ten days instead of six months, provided that the failure to bring suit shall in no manner affect such prescriptive titles.
      C. The petitioner may file a notice of lis pendens with the recorder of mortgages of the parish in which the property is located. A transfer, mortgage, lien, privilege, or other encumbrance filed after the filing of the notice of lis pendens shall not affect the property. The recorder of mortgages of the recorder of conveyances shall cancel, erase, terminate, or release the acts upon the request of the petitioner.

      . La. R.S. 47:2180 was repealed by Acts 2008, No. 819, § 2, effective January 1, 2009. The substance of former La. R.S. 47:2180, 2180.1 and 2181 was consolidated and reproduced, with certain modifications, and renumbered as current La. R.S. 47:2153 by Acts 2008, No. 819, § 1.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana through the DEPARTMENT OF CHILD AND FAMILY SERVICES, Child Support Enforcement in the Interest of Austin Dennis Minor Child(ren) of Kirby Taylor Jones v. Devin DENNIS.
    No. 2011-CA-1736.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2012.

      George J. Higgins, Jr., New Orleans, LA, for Plaintiff/Appellee.
    Cynthia D. Samuel, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   EDWIN A. LOMBARD, Judge.

Lin this appeal, Devin Dennis, seeks review of the confirmation of a default judgment obtained by the plaintiff, the State of Louisiana, through the Department of Child and Family Services, Child Support Enforcement in the interest of Austin Dennis, minor child of Kirby Taylor Jones (the “State”). For the following reasons, we reverse.

Relevant Facts and Procedural History

On July 25, 2011, the State filed a petition to establish an order of child support praying that the court render judgment in favor of the State ordering Mr. Dennis to pay support through the State via an income assignment order, to maintain a policy of insurance for the benefit of the minor child, to be taxed with cost, and for other relief as the law may require. Mr. Dennis did not file any responsive pleadings.

On August 31, 2011, the State obtained a judgment of default. Thereafter, the State filed a motion to confirm the judgment of default. In support of its motion to confirm, the State offered: (1) an affidavit of paternity and non-military | .¿service signed by Ms. Jones; (2) a statement of income and expenses signed by Ms. Jones; (3) an obligation worksheet; and (4) a document identified as an “LDET.

On September 15, 2011, the trial court issued a judgment confirming the judgment of default in favor of the plaintiff, Ms. Jones, and against Mr. Dennis, declaring Mr. Dennis be the biological father of the minor child, Austin Dennis, and ordering Mr. Dennis to pay $482.41 monthly, to the State. It is from that judgment the defendant timely filed a motion for appeal.

Applicable Law

Default judgments are governed by La. Code Civ. Proc. art. 1701 et seq. That provision states that “[i]f a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be answered against him.” La.Code Civ. Proc. art. 1701. “A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” La. Code Civ. Proc. art. 1702.

“In order to obtain a reversal of a default judgment appealed from, or to obtain a remand, defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and that it is correct.” Ascension Builders, Inc. v. Jumonville, 263 So.2d 875, 262 La. 519 (1972). This presumption, however, does not attach when the record upon which the judgment is rendered indicates otherwise. Id. at 878; see also Arias v. Stolthaven New Orleans, L.L.C., 2008-1111, p.8 (La.5/5/09), 9 So.3d 815, 820.

|3“In reviewing the confirmation of a default judgment, ‘an appellate court is restricted solely to determining whether the record contains sufficient evidence to support a prima facie case.’ ” McIntyre v. Sussman, 2010-1281, p. 5 (La.App. 4 Cir. 10/26/11), 76 So.3d 1257, 1261, quoting Gresham v. Prod. Mgmt., Inc., 2002-1228, p. 3 (La.App. 4 Cir. 2/11/04), 868 So.2d 171, 175. “This determination is a factual one governed by the manifest error standard of review.” McIntyre, p. 5, 76 So.3d at 1261, quoting Arias v. Stolthaven New Orleans, L.L.C., 2008-1111, p. 5 (La.5/5/09), 9 So.3d 815, 818. “When the court of appeal finds that a reversible legal error or manifest error of material fact was made in the trial court, the court of appeal is required to determine the facts de novo from the entire record and render a judgment on the merits.” McIntyre, p. 5, 76 So.3d at 1261, quoting Anas, 2008-1111, p. 5, 9 So.3d at 818.

Discussion

In his first assignment of error, Mr. Dennis avers that the trial court erred in granting the judgment of default without sufficient proof to establish a prima facie case as required by law.

The petition asserts entitlement to child support pursuant to Louisiana Revised Statute 9:315, et seq. Louisiana Revised Statute 9:315.8 provides “[t]he party without legal custody or non-domiciliary party shall owe his or her total child support obligation as a money of child support to the custodial or domiciliary party.” Accordingly, an element of proof which must be established for an award |4of child support is the custodial or domiciliary status of the party seeking the award.

A review of record indicates that there is no evidence to show that Kirby Jones is the domiciliary or custodial parent of the minor child. In confirming the judgment of default, the State submits the affidavit of Kirby Jones. The affidavit provides that she is the mother of Austin Dennis; she maintained a relationship with the defendant, which resulted in the conception and birth of Austin Dennis, and that the defendant is not a member of the military. The affidavit, notably, does not address custodial or domiciliary status.

Further, the petition (1) fails to name the custodian who is applying for services; (2) alleges that Austin Dennis resides with Devin Dennis; (3) names Austin Dennis as the defendant; (4) fails to request that Devin Dennis be ordered to pay child support; and (5) prays that “the defendant” be ordered to pay child support, without specifically naming the defendant.

Accordingly, after de novo review, we find that the record does not support the confirmation of the default judgment, and thus the presumption that the default judgment was rendered upon sufficient evidence does not attach. Given our finding we pretermit discussion of the second assignment of error.

Conclusion

Thus, the confirmation of the default judgment is hereby reversed and we remand the matter back to the trial court.

REVERSED AND REMANDED

      . A description of this document was not provided.


text:
    Fritz SCHROTH and Nellie Clark v. ESTATE OF Martha Ann SAMUEL; Cynthia Samuel; Stephanie Samuel & Lafayette Insurance Co.
    No. 2011-CA-1385.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2012.

      Gregory David Guth, New Orleans, LA, for Plaintiff/Appellant.
    Kathleen C. Marksbury, Stephen R. Barry, Barry & Piccione, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

_JjThe plaintiffs appeal the trial court’s judgment granting a motion for summary judgment in favor of the defendants. After de novo review, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

In October 2003, the plaintiffs, Fritz Schroth, a contractor, and Nellie Clark, an artist, entered into a Commercial Lease Agreement with Martha Ann Samuel, the lessor, for a building located at 601 Elysian Fields Avenue in New Orleans, Louisiana to establish an art and framing business, as well as an occasional residence. It was the understanding of the parties that Mr. Schroth would renovate the interior to make it suitable for use as an art gallery and that Martha Ann Samuel would be responsible for maintenance such as the roof and painting of the exterior. In August 2005, the rental property was damaged in Hurricane Katrina, requiring repairs to the roof. Shortly after Hurricane Katrina, the lessor passed away, leaving her daughters, Cynthia Samuel and Stephanie Samuel, in control over the rental property at issue.

On September 18, 2006, the plaintiffs filed suit in the Civil District Court for the Parish of Orleans for damages arising out of the lease agreement, naming as 12defendants, estate of Martha Ann Samuel, her daughters, and her insurer, Lafayette Insurance Company. The plaintiffs contended that: (1) the damage sustained by Hurricane Katrina was more extensive due to the lessor’s failure to maintain the roof; (2) the failure to repair the property was a violation of the lease agreement and the defendants are liable for all resulting damage, including the loss of personal property stored in their storage unit in Chalmette, Louisiana, which flooded as a result of Hurricane Katrina; and (3) the defendants are liable for the damage and destruction of their property caused by the work crew that the defendants allegedly hired.

On February 22, 2011, the defendants moved for summary judgment asserting that the plaintiffs would not be able to sustain their burden of proof at trial to show that the defendants are liable for the damages allegedly sustained by the plaintiffs.

On March 24, 2011, the defendants’ motion for summary judgment was granted in part, leaving only the question as to whether the defendants’ failure to maintain the roof was the cause-in-fact of damages.

Subsequently, on April 5, 2011, the defendants filed a second motion for summary judgment as to the plaintiffs’ remaining claim, arguing that the plaintiffs did not present any evidence to show that the roof on the subject building was defective or in need of repair prior to Hurricane Katrina. On June 13, 2011, the trial court summary judgment in favor of the defendants. It is from this judgment; the plaintiffs timely filed this appeal.

^Applicable Law

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. Art. 966(B). The initial burden of producing evidence at the hearing on the motion for summary judgment is on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Schultz v. Guoth, 10-0343, p. 4 (La.1/19/11), 57 So.3d 1002, 1006, citing Samaha v. Rau, 07-1726, p. 4 (La.2/26/08), 977 So.2d 880, 883. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial ... Once the motion for summary judgment has been supported by the moving party, the failure of the non-moving party to produce evidence of material factual dispute mandates the granting of the motion.” Id.; (citations omitted).

“A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, pp. 3-4, 977 So.2d at 882-83.

Because the first summary judgment did not dismiss any of the parties, but only dismissed particular issues or causes of action under Louisiana Code of Civil Procedure article 966 E, it did not qualify for treatment as a final and appealable judgment under Louisiana Code of Civil Procedure articles 1911, 1915 A(l) and |4(3), and 2083. According to Louisiana Code of Civil Procedure article 1915(B)1, unless the first summary judgment was designated by the trial court as final and appealable, it shall not constitute a final judgment for the purpose of an immediate appeal. See La.Code Civ. Proc. art. 1915 B(2). See also Favrot v. Favrot, 10-0986, pp. 2-5 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102-1105.

However, an appellant can timely seek review of an interlocutory ruling or judgment at the time of appealing a final judgment, which, in this case, is the second motion for summary judgment, as filed by the plaintiffs. See People of the Living God v. Chantilly Corp., 251 La. 943, 207 So.2d 752 (1968). See also Roger A. Setter, LOUISIANA CIVIL APPELLATE PROCEDURE, 3:22 (2010-2011 ed.) (“When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings adverse to him, in addition to the review of the final judgment.”)

Discussion

Because the plaintiffs assigned as error the granting of the first summary judgment, which was not designated as final by the trial court, the plaintiffs are entitled to our review of that interlocutory ruling upon the appeal of the granting of the second summary judgment.

After a thorough review of the record and the evidence before us, it is the opinion of this Court that the primary issue presented by the instant case is whether the defendants can be held liable to the plaintiffs under the terms of the lease agreement.

The Commercial Lease Agreement contains the following pertinent provisions:

|,,5) DELIVERY OF PREMISES: Lessee hereby accepts the premises in their existing condition and assumes responsibility for the condition of the leased premises. Any improvements or alterations desired by the Lessee shall be at Lessee’s cost, with Lessor’s prior, written approval, except as hereinafter provided: Lessor to have bathtub leaks repaired and central a.c./heat to be in working order; thereafter lessee to maintain. Routine maintenance of exterior has to be responsibility of lessee with lessor to do major maintenance such as roof and overall paint.
28) SUBROGATION: Neither the Lessor nor the Lessee shall be liable to the other for the loss arising out of damage to, or destruction of the leased premises, or the building or improvements of which the leased premises are a part thereof, when such loss is caused by any of the perils which are or could be included within or are insured against by a standard form of ñre insurance with extended coverage, including sprinkler leakage, if any. All such claims for any and all loss, however caused, hereby are waived. Said absence of liability shall exist whether or not the damage or destruction is caused by the negligence of either Lessor or Lessee, by any of their respective agents, servants or employees. It is the intention and agreement of the Lessor and the Lessee that the rental reserved by this lease have been fixed in contemplation that each party shall fully provide his own insurance protection at his own expense, and that each party shall look to his respective insurance carriers for reimbursement of any such loss; and further; that the insurance carriers involved shall not be entitled to subrogation under any circumstances against any party to this lease. Neither the Lessor nor the Lessee shall have any interest or claim in the other’s insurance policy or policies, or the proceeds thereof, unless specifically covered therein as joint assured. (Emphasis added)

The interpretation of a contract “is the determination of the common intent of the parties.” La. Civ.Code art. 2045. Louisiana Civil Code article 2046 further provides that, “when the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” The determination of whether a contract is clear or ambiguous is a question of law. Louisiana Ins. Guar. Ass’n. v. Interstate Fire and Casualty Co., 630 So.2d 759, 764-65 (La.1994).

Based on the evidence, Hurricane Katrina was the sole cause of the plaintiffs’ damages. The language of the lease is clear and unambiguous, clearly stating that the lessor would not be held liable to the lessees for any losses arising [ fiout of damage to, or destruction of the rental property, however caused, when such loss is caused by any of the perils which could have been included within a standard form of fire insurance with extended coverage. Pursuant to Louisiana Revised Statute 1311, which governs fire insurance contracts, standard provisions, and variations, standard fire insurance contracts can be drafted to include additional coverages and perils. However, it is undisputed that neither plaintiff had any insurance. Accordingly, the defendants are not liable for such damages as claimed by the plaintiffs.

Additionally, we also find that, to the extent the defendants could be liable to the plaintiffs for the damages incurred at the hands of a work crew allegedly hired by the defendants, the plaintiffs have failed to provide evidence that identifies the vandals as the defendants’ work crew. Thus, they would not be able to meet their burden of proof at trial.

In their second motion for summary judgment, the defendants contend that the plaintiffs have not presented any evidence to show that the roof on the subject building was defective or in need of repair prior to Hurricane Katrina.

In response to the defendants’ motion for summary judgment, the plaintiffs file only a memorandum entitled, “Memorandum in Opposition to Motion to Compel.”

The plaintiffs’ memorandum, in pertinent part, states:

“This memorandum is submitted in opposition to the defendants’ motion for summary judgment.
The defendants have filed a motion for summary judgment based on the court’s prior rulings which all but eliminated plaintiffs’ claims.
The prior rulings, being erroneous, cannot support their summary judgment motion and should be denied.”

|7The defendants carried their burden of proof on its motion for summary judgment entitling it to a dismissal from this matter. Manning v. United Medical Corp. of New Orleans, 04-0035 (La.App. 4 Cir. 4/20/05), 902 So.2d 406. Upon the defendants’ pri-ma facie showing on their motion for summary judgment, the plaintiffs were required to establish that they would be able to satisfy their evidentiary burden of proof at trial. Schultz v. Guoth, 10-0343, 57 So.3d 1002. However, the plaintiffs have failed to introduce any evidence to show they will be able to meet their burden.

Conclusion

After de novo review, we find no genuine issue of material fact exists and the defendants are entitled to summary judgment. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED


author: JOY COSSICH LOBRANO, Judge.

text:
    Scott G. WOLFE, Sr., Wagner World, L.L.C., Wolfe World, L.L.C., and Pig Feet, Inc. v. Dale N. ATKINS, in her capacity as Clerk of the Orleans Parish Civil District Court.
    No. 2011-CA-1481.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2012.
    Scott G. Wolfe, Jr., Seth J. Smiley, Bradley Aldrich, Wolfe Law Group, LLC, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DANIEL L. DYSART, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| Appellants, Scott G. Wolfe, Sr., Wagner World, L.L.C., Wolfe World, L.L.C. and Pig Feet, Inc., appeal the trial court’s denial of an alternative writ of mandamus.

The record reveals that the appellants filed a Petition for Writ of Mandamus in the trial court on July 29, 2011. In this petition, appellants asked the trial court to issue an alternative writ of mandamus, pursuant to La. C.C.P. Article 3865, compelling the Honorable Dale N. Atkins, Clerk of the Civil District Court for Orleans Parish, to undo the transfer and consolidation of two ongoing civil suits, or, alternatively, to show cause why such writ should not be made peremptory. The trial court denied the request for the alternative writ of mandamus on August 15, 2011, stating only that the request was improper. The appellants filed this timely appeal from the August 15, 2011 ruling.

On appeal, the appellants argue that the trial court erred in its ex parte denial of their Petition for Writ of Mandamus, and in its failure to issue an alternative writ Land to set the matter for a show cause hearing. Specifically, appellants argue that the trial court’s actions violated La. C.C.P. Article 3865. We agree.

La. C.C.P. Article 3865 states, “[u]pon the filing of a petition for a writ of mandamus, the court shall order the issuance of an alternative writ directing the defendant to perform the act demanded or to show cause to the contrary.” La. C.C.P. Article 3866 then provides, “[a]fter the hearing, the court may render judgment making the writ peremptory.” Under La. C.C.P. Article 3865, the trial court had a mandatory duty to issue the alternative writ of mandamus upon the filing of the Petition for Writ of Mandamus. See Naquin v. Iberia Parish School Board, 157 So.2d 287 (La.App. 3 Cir.1963). Its failure to do so was error.

For the reasons stated above, the trial court’s denial of appellants’ request for the issuance of an alternative writ of mandamus is reversed. This matter is remanded to the trial court, with an order to issue the alternative writ of mandamus prayed for by the appellants in their Petition for Writ of Mandamus, and to set a show cause hearing to determine whether the writ shall be made peremptory.

REVERSED AND REMANDED WITH ORDER