text:
    STATE of Louisiana v. Natasha S. BROWN.
    No. 2011-KA-0947.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellant.
    Verity Gentry Bell, James Harper, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

| TThis is a criminal case. The State is the appellant. The sole issue presented is whether the district court erred in granting the motion to quash the bill of information filed by the defendant, Natasha Brown, after the State entered a nolle prosequi on the day of trial and eight months later reinstituted the charge. Answering that question in the affirmative, we reverse and remand.

STATEMENT OF THE CASE

On October 28, 2009, the State charged Ms. Brown with a felony, aggravated battery (a violation of La. R.S. 14:34), and a misdemeanor, simple battery (a violation of R.S. 14:35). The underlying alleged offenses occurred on August 26, 2009; Ms. Brown was arrested the following day and released on bond. After twice failing to appear for arraignment, Ms. Brown pled not guilty to both charges on January 12, 2010. On February 4, 2010, Ms. Brown appeared for a preliminary hearing. The district court found probable cause only for the offense of simple battery.

|2On March 11, 2010, Ms. Brown appeared for trial. Although the docket master indicates that the trial was “continued on defense motion,” Ms. Brown disputes the accuracy of this notation. As noted elsewhere, the court acknowledged at the hearing on the motion to quash that the docket master was inaccurate and that this was a court continuance. On April 23, 2010, Ms. Brown again appeared for trial. The district court denied the State’s motion to continue. In response, the State entered a nolle prosequi.

Eight months later, on December 22, 2010, the State reinstituted the charges. The case was initially allotted to Section K and then transferred to Section D in compliance with the local rules of court. On February 7, 2011, a status hearing was held, and a trial date was set for April 15, 2011. Meanwhile, Ms. Brown filed a motion to quash. On April 6, 2011, following a hearing, the district court sustained the motion and dismissed the prosecution with prejudice. This appeal by the State followed.

STATEMENT OF THE FACTS

The facts are unknown and irrelevant to the review of the assignment of error raised by the State.

ERRORS PATENT

A review of the record for errors patent reveals none.

hPISCUSSION

The sole assignment of error the State raises on appeal is whether the district court abused its discretion in granting Ms. Brown’s motion to quash the bill of information relating to the felony offense, aggravated battery, based on the State’s earlier dismissal of the original charge and its reinstitution of this charge eight months later.

A motion to quash is the proper procedural mechanism to challenge the State’s nolle prosequi and reinstitution of charges. State v. Hayes, 10-1538, p. 4 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, 12, writ denied, 11-2144 (La.3/2/12), 83 So.3d 1043. It is also the proper procedural mechanism to raise a speedy trial violation. State v. Reaves, 376 So.2d 136, 137-38 (La.1979). The motion to quash Ms. Brown filed in this case raised both grounds; particularly, she asserted the following grounds:

• The State’s practice of entering a nolle prosequi and then reinstituting prosecution in order to grant itself a continuance violated her right to due process, see Wardius v. Oregon, 412 U.S. 470 [93 S.Ct. 2208, 37 L.Ed.2d 82] (1973); and the separation of powers doctrine, see La.C.Cr.P. art. 17.
• Even if there was no abuse of authority, the State violated Ms. Brown’s constitutional right to a speedy trial by failing to bring her to trial within twenty months of arrest.

Granting Ms. Brown’s motion, the district court provided the following oral reasons for judgment:

14Well, if you look at [Article] 576 of the Code, and it talks about the State not being able to do this. And I’ve always had a problem with the idea that the State can give itself a continuance, but the Defense can’t. It puts the Defense on an unequal footing. I did it Leban, and I think the law had nuance on this.

The district court characterized the State’s eight month delay in reinstituting the prosecution as a “lengthy delay.” The district court noted that “this is a practice [by the District Attorney’s Office] that is happening routinely now.”

The governing standard of review of a district court’s ruling on a motion to quash is the abuse of discretion standard. State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206-07. “A district court’s resolution of a motion to quash in cases such as this one, where the district attorney entered a nolle prosequi and later reinstituted charges, is considered on a case-by-case basis.” State v. Lee, 11-0892, p. 1 (La.App. 4 Cir. 1/18/12), 80 So.3d 1292, 1293 (citing State v. Batiste, 05-1571, p. 5 (La.10/17/06), 939 So.2d 1245, 1249).

Both the Louisiana Supreme Court and this court have recognized that the State has the authority to enter a nolle 'prosequi and to reinstitute the charge. The State is authorized to reinstitute charges “within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.” La.C.Cr.P. art. 576. The Legislature’s reference to “this Chapter” is to “Chapter 1, Limitations Upon Institution of Prosecution,” which includes La.C.Cr.P. arts. 571 to 577. Because Ms. Brown was charged with aggravated battery and thus exposed to a sentence to be imposed with or without hard labor, the pertinent article is La.C.Cr.P. art. 572 A(2), which provides for prosecution to be instituted within four years after the offense is committed. The State thus had until August 26, 2013, to institute prosecution. Given the State reinstituted the charges against Ms. Brown |5on December 22, 2010, it did so well within the four year statutory period to institute prosecution.

The State also is required to show that the dismissal of the original prosecution was not for the purpose of avoiding the time limitations set by Article 578. Given that the charge at issue in this case is a non-capital felony (aggravated battery), Article 578 required the State to bring Ms. Brown to trial within two years from the date of the bill of information. La.C.Cr. P. art. 578. The original bill of information was filed on October 28, 2009, and the State dismissed the charges (nolle prose-qui) on April 23, 2010, only six months later. The State did not dismiss the first case in order to avoid the time limitations of Article 578. Thus, the State timely reinstituted prosecution of the felony offense of aggravated battery. As to this offense, none of the statutory time limitations have been surpassed.

The jurisprudence has recognized that the State’s dismissal-reinstitution authority may be overborne under the circumstances of any given case by proof either that the defendant’s right to a fair trial was violated or that the defendant’s constitutional right to a speedy trial was violated. State v. King, 10-2638 (La.5/6/11), 60 So.3d 615. A defendant challenging the State’s dismissal and reinstitution of charges has the burden of showing a violation of his or her right to a fair trial or constitutional right to speedy trial. King, 10-2638 at pp. 7-8, 60 So.3d at 619; State v. Scott, 04-1142, pp. 11-12 (La.App. 4 Cir. 7/27/05), 913 So.2d 843, 850-51.

In this case, the gist of the State’s argument on appeal is that none of the reasons cited by the district court supports it granting the motion to quash. The State further argues that Ms. Brown failed to establish a speedy trial violation.

|flThe district court’s first reason for granting the motion to quash was its dislike of the State’s exercise of its dismissal-reinstitution authority to grant itself a continuance: “the idea the State can give itself a continuance, but the Defense can’t.” The Louisiana Supreme Court in King, supra, rejected similar reasoning given by the district court as its basis for granting a motion to quash.

In King, the defendant was charged with issuing worthless checks. The State nolle prosequied the original case when the court refused to grant the State a continuance that it requested because it was having trouble procuring financial records from a bank. When the State reinsti-tuted the charges, the defendant moved to quash the charges, raising the same violation of the separation of powers argument Ms. Brown raised in this case. The district court granted the motion, and, on the State’s appeal, the First Circuit affirmed, with one judge dissenting. State v. King, 10-0074 (La.App. 1 Cir. 10/29/10), 48 So.3d 1288. The State sought writs, and the Louisiana Supreme Court reversed, agreeing with the dissenting judge.

The Supreme Court in King noted the “frequent collisions between a trial judge’s authority to conduct proceedings ‘in an orderly and expeditious manner,’ La. C.Cr.P. art. 17, including the authority to adopt rules ‘governing the procedure for setting cases for trial and giving notice thereof,’ La.C.Cr.P. art. 702, and a district attorney’s plenary ‘charge and control’ over every criminal prosecution instituted or pending in his district, including the determination of ‘whom, when, and how he shall prosecute,’ La.C.Cr.P. art. 61.” King, 10-2638 at p. 5, 60 So.3d at 618. The Court further noted that when the State dismisses a case in which the district court has denied its motion for continuance and then reinstitutes the charges, the State “can be said to have ‘flaunted’ the state’s unique power and |7authority that the defense does not also possess.” King, 10-2638 at p. 6, 60 So.3d at 618. Nonetheless, the Court reasoned:

[Bjecause of the severe consequences of dismissing a pending prosecution that is neither time-barred as a matter of La. C.Cr.P. art. 578, nor precluded by the Speedy Trial Clause of the Sixth Amendment, we made clear in Love that the state must exercise that authority in such a way that it does not simply disrupt the trial court’s conduct of the proceedings or challenge the court’s authority to manage its docket, but also significantly disadvantages the defense at any forthcoming trial.

King, 10-2638 at p. 6, 60 So.3d at 619. The Court found that the record did not show that the State’s failure to obtain the records in time for trial was due to its lack of preparation. The Court further noted:

[Ajlthough the trial court took a dim view of the state’s efforts in preparing its case for trial, the court did not challenge the credibility of the state’s explanation that its problems stemmed from difficulties with Capitol One Bank. The court discounted the prosecutor’s explanation on grounds that, but for the state’s lack of diligence in preparing the case for its first trial setting, it would not have had the problems with the bank at the second trial setting in May 2009. However, as Judge Kuhn emphasized in his dissent, the record fails to suggest that the state simply sought a tactical advantage over the defense, or that it was whipsawing defense witnesses by forcing them to make repeated but futile trips to the courthouse, see State v. Reaves, 376 So.2d 136, 138 (La.1979), as opposed to struggling to put its case together by identifying and summoning the appropriate witnesses.

King, 10-2638 at pp. 6-7, 60 So.3d at 619. The Court thus held that it was error for the district court to grant a motion to quash given that the defendant failed to assert a violation of his Sixth Amendment right to a speedy trial and “in any event claimed no prejudice to his defense of the case arising out of the delay occasioned by the State’s dismissal and immediate reinst-itution of prosecution to force a second continuance of trial.” King, 10-2638 at p. 8, 60 So.3d at 620.

As we noted in Hayes, supra, the Supreme Court now requires that a defendant “show that the district attorney’s abusive exercise of its power actually [¿violates the defendant’s constitutional right to a fair trial.” Hayes, 10-1538 at p. 9, 75 So.3d at 14. Continuing, we noted that this burden parallels “the burden in a claim of a violation of a constitutional right to a speedy trial” in that it “requires the defendant ‘to make a showing of specific prejudice to his defense.’ ” Id. (quoting King, 10-2638 at p. 8, 60 So.3d at 620). In this case, Ms. Brown has neither alleged nor proven specific prejudice to her defense.

Another reason the district court cited for granting Ms. Brown’s motion to quash was its opinion that the eight month delay in reinstituting prosecution was too long. The State contends that the district court’s reliance on its opinion that the delay was too long was misplaced. In support, the State emphasizes that none of the statutory time limits set by the state legislature for instituting prosecution or commencing trial have been surpassed in this case as a result of it dismissing the charges on April 23, 2010, and reinstituting the charges on December 22, 2010.

In King, the Louisiana Supreme Court, in reversing the trial court’s grant of the motion to quash, also relied on the fact that the applicable statutory time limits had not been surpassed. In so doing, the Court cited United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), for the proposition that “statutory periods of limitation on the prosecution of cases offer the primary means of enforcing the Sixth Amendment right to a speedy trial because they ‘provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.’ ” King, 10-2638 at p. 7, 60 So.3d at 620. The Court noted:

Short of that statutory tolling, our decision in Love requires the defendant to make a showing of specific prejudice to his defense |9because even under the Sixth Amendment, which offers a defendant the ultimate bulwark against the state’s manipulation of its plenary charging powers, and “unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself.” Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972).

King, 10-2638 at pp. 7-8, 60 So.3d at 619-20. In this case, Ms. Brown has not alleged or established specific prejudice to her defense; and the statutory limits have not been surpassed.

Independent of the statutory time limits, a defendant has a constitutional right to a speedy trial. In determining whether a defendant’s constitutional right to a speedy trial has been violated, Louisiana courts utilize the following four-part analysis set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. None of these factors is “ ‘either a necessary or sufficient condition to the finding of a deprivation of the right to speedy trial.’ ” Love, 00-3347 at p. 15, 847 So.2d at 1210 (quoting Barker, 407 U.S. at 533, 92 S.Ct. 2182). Rather, these are “ ‘related factors and must be considered together ... in a difficult and sensitive balancing process.’ ” Id.

The first Barker factor, the length of the delay, is a threshold requirement for invoking a speedy trial analysis; it functions as a triggering mechanism for further inquiry into the other three Barker factors. Love, 00-3347, p. 16, 847 So.2d at 1210. Only if there is a “presumptively prejudicial” delay will courts proceed to analyze the other Barker factors. Id.

In this case, Ms. Brown contends that the delay should be calculated from the date of her arrest, August 26, 2009, to the date of the granting of her motion to quash, April 6, 2011. She thus contends the delay was one year and eight months | m(twenty months). The State counters that the eight-month period between its dismissal and reinstitution of the charges should be excluded from the calculation and that the delay was only twelve months. In support, the State cites United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), for the proposition that “the Sixth Amendment [right to speedy trial] does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused.” MacDonald, 456 U.S. at 6, 102 S.Ct. 1497.

The State cites no Louisiana jurisprudence in support of its position that the eight month period should be excluded, and our research reveals none. Rather, the Louisiana jurisprudence, as Ms. Brown points out, has included the period between dismissal and reinstitution in the calculation of the delay, albeit without discussion of the issue. See Batiste, supra; State v. Leban, 611 So.2d 165 (La.App. 4th Cir.1992). Given the circumstances of this case, we find it unnecessary to resolve the issue, although raised here. The result would be the same whether the delay was twelve or twenty months. Finding either delay presumptively prejudicial, we examine the other three Barker factors.

The second Barker factor relates to the reason for the delay. In this regard, we note that the procedural history of this case was as follows:

• August 27, 2009: Ms. Brown was arrested for the offense, which allegedly occurred the prior day; and she was released on bond.
• October 28, 2009: The State filed a bill of information initiating prosecution.
| u* January 12, 2010: After twice failing to appear for arraignment, Ms. Brown was arraigned and pleaded not guilty.
• March 10, 2010: Ms. Brown appeared for trial. Although the docket master indicates that the trial was “continued on defense motion,” Ms. Brown disputes the accuracy of this notation. Moreover, at the hearing on the motion to quash, the district court acknowledged that this was a court continuance. The court noted it remembered, as defense counsel pointed out, that “the Court had a funeral to go to that day.”
• April 28, 2010: Ms. Brown again appeared for trial. According to the motion to quash, “[t]he State claimed that they were waiting on a witness and could not proceed to trial without this alleged witness. The Court allowed the State to pass the matter until it was the last matter on the docket. At the end of the docket, the State requested a continuance. The Judge denied the state’s continuance and, based on the denial of the continuance, the state entered a nolle prosequi.” The transcript of the motion to quash hearing further indicates that the State’s witness was the victim, who had been subpoenaed and not shown up for court. The State further pointed out that they waited until the end of the day, but no capias was issued. The State still further pointed out that the witness was served and that it asked for some time to track down the witness, but the district court denied its request for a continuance.
• December 22, 2010: The State reinsti-tuted prosecution after an eight month delay.
• February 7, 2011: A status hearing was held at which a trial date was set for April 15, 2011.
• April 6, 2011: Ms. Brown’s motion to quash was filed and granted by the district court.

As the above chronology of events establishes, Ms. Brown was responsible for an initial portion of the delay as a result of her failure to appear twice for arraignment. The court was responsible for the initial trial continuance, which was on the court’s own motion. (The docket master inaccurately reflects that this was a defense continuance.) The State was responsible for the second continuance, which it in effect granted itself by entering a nolle prosequi when the district court denied its request for a continuance. The State also was responsible for the eight 112month delay caused by its nolle prosequi. Otherwise, the delays in this case were the result of the routine judicial processing of the ease.

The third Barker factor relates to the defendant’s assertion of the right to speedy trial. The record reflects that Ms. Brown never objected to any of the continuances and never asserted her right to speedy trial, either in writing or otherwise, before she filed the motion to quash. In her motion to quash, Ms. Brown states that the reason for her not making a prior motion for speedy trial was “because at each postponement, trial was set for a fairly near date.”

The fourth, and final, Barker factor is the prejudice to the defendant caused by the delay. Ms. Brown in her motion to quash alleges that she was prejudiced in the following three ways:

1. “Any contact with witnesses in this case has been lost since the state dismissed these charges eight months ago.”
2. Ms. Brown has been “deprived of the benefit of continuity of counsel;” she has been passed between at least four different attorneys.
3. Ms. Brown is “a student and the reinstitution of this case has created problems in her applying for internships,” has prevented her from working as a coach, and has deprived her of “peace of mind.”

We find, as the State contends, that none of the allegations Ms. Brown makes were sufficient to establish actual prejudice. Rather than alleging specific prejudice to her defense, Ms. Brown makes a generalized allegation regarding losing contact with unidentified witnesses. Insofar as continuity of counsel, as the State points out, there is no jurisprudence supporting “the notion that the right to a speedy trial includes within it the right to ‘continuity of counsel.’ ” As to her claim that the pending felony charges have certain collateral effects, this alone is insufficient to constitute actual prejudice. Moreover, Ms. Brown was not incarcerated during the delay.

| ialn balancing the Barker factors in this case, we find the following summary of the jurisprudence by a commentator instructive:

Length of the delay may well be the least important factor as a general rule since the statute sets an implied outer limit and even a delay of seven years has been tolerated under certain circumstances. With respect to reasons for the delay, obviously if the defense provokes or acquiesces in the delays, he is less likely to prevail on a denial of speedy trial claim. Likewise, if the state’s requests for delays are for “good cause” or if the delays are not attributable to the state, e.g., caused by a crowded court docket, a speedy trial claim is less likely to prevail (although the reasoning for that position is questionable). A defendant should assert the right promptly in order to prevail, not waiting until the bulk of the delay has already passed. With respect to showing prejudice, a defendant who is released on bond during the delay has less claim for prejudice than one who is incarcerated during that period. A generalized complaint that the delay prevented the marshalling of a defense is insufficient. Nor is the anxiety and psychological pressure inherent in any prosecution or the hardship caused by incarceration per se enough to constitute prejudice. The court really envisions an actual hindrance to the defense caused by the delay such as a witness dying or otherwise becoming unavailable. Delay alone, even when unjustified by the state, cannot apparently constitute a denial of the defendant’s right to a speedy trial unless he can show actual prejudice.

15 Gail Dalton Schlosser, La. PraaCrim. Trial Prac. § 14:24 (4th ed.2011).

In this case, the delay was at most twenty months. Although the State failed to articulate a reason for delaying eight months to reinstitute the charges, the State’s request to continue the March 2Srd trial date was for good cause — the lack of a necessary witness (the victim). Ms. Brown failed to file a speedy trial motion. Ms. Brown’s claim regarding prejudice to her defense was a generalized one. Likewise, the general collateral effects she suffered as a result of the pending felony charges alone were insufficient to constitute prejudice. Balancing the Barker factors, we find no violation of Ms. Brown’s constitutional right to a speedy trial.

114Given that Ms. Brown has neither established a speedy trial violation nor shown specific prejudice to her right to a fair trial, the district court abused its discretion in granting the motion to quash.

DECREE

For the forgoing reasons, the judgment of the district court is reversed; and the matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED

      . The record does include a copy of the screening action form, which states that the aggravated battery was with a tire iron.

      . The State does not appeal the district court’s granting of the motion to quash as to the misdemeanor offense, simple battery.

      . Another ground she asserted was that the State violated La.C.Cr.P. art. 578 by failing to bring her to trial within one year from the institution of the prosecution on the misdemeanor offense. As noted, the State does not challenge the district court's granting of the motion to quash the misdemeanor offense on appeal.

      .Both the Louisiana Supreme Court and this court have rejected the separation of powers and due process claims Ms. Brown asserts. See State v. King, 10-2638 (La.5/6/11), 60 So.3d 615; State v. Batiste, 05-1571 (La.10/17/06), 939 So.2d 1245; State v. Lee, 11-0892 (La.App. 4 Cir. 1/18/12), 80 So.3d 1292; State v. Hayes, 10-1538 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, writ denied, 11-2144 (La.3/2/12), 83 So.3d 1043.

      . State v. Leban, 611 So.2d 165 (La.App. 4th Cir. 1992).

      . As noted elsewhere, pursuant to La.C.Cr.P. art. 572 A(2), the State had four years to institute prosecution on the aggravated battery charge — until August 26, 2013. Pursuant to La.C.Cr.P. art. 578, the State had two years from the date of the initial institution of prosecution to bring the case to trial — until October 28, 2011.

      . The MacDonald case was a divided decision in which the majority held that the time between dismissal of military charges and a subsequent indictment on civilian criminal charges could not be considered in determining whether the delay in bringing the defendant to trial violated his constitutional right to speedy trial. The majority reasoned that “[Hollowing dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.” MacDonald, 456 U.S. at 9, 102 S.Ct. 1497. The dissenting justices in MacDonald stated that "[suspending application of the speedy trial right in the period between successive prosecutions ignores the real impact of the initial charge on a criminal defendant and serves absolutely no governmental interest.” MacDonald, 456 U.S. at 24, 102 S.Ct. 1497.


source: Caselaw Access Project

license: Public Domain

text:
    Maria HOLMES v. PACARINI USA, INC., Tyrone “Gleck” Soniat, Vaughn Gay, and Jerry Johns.
    No. 2011-CA-1033.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2012.
    Patrick G. Kehoe, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Patrick E. O’Keefe, Andrew T. Lilly, Montgomery Barnett, LLP, New Orleans, LA, for Defendant/Appellee, Pacarini USA, Inc.
    (Court composed of Chief Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MADELINE M. LANDRIEU).
   FACTS AND PROCEDURAL HISTORY

On May 15, 2005, Maria Holmes was employed by Pacarini USA, Inc. and was performing longshore work at the Poland Avenue Wharf in the Port of New Orleans. On that day, she was injured when a fellow employee, Tyrone “Gleck” Soniat ran into her with a forklift and pinned her to a load of T-bars. Before he ran into Ms. Holmes with the forklift, Mr. Soniat had been drinking alcoholic beverages and smoking marijuana cigarettes laced with crack. This was not the first time that an intoxicated Pacarini employee had run into a fellow employee with a forklift at the Port of New Orleans. As a result of the incident, Ms. Holmes suffered a laceration of the right leg, an avulsion fracture of the mid left foot, and permanent scarring; she also missed five weeks from work.

|2On May 15, 2006, Ms. Holmes filed a petition for damages against Pacarini and two of its employees, including Mr. Soniat. At the close of discovery, Pacarini filed a motion for summary judgment. Pacarini argued that the plaintiffs tort claims were barred by the exclusive remedy provisions of the Longshore and Harbor Workers’ Compensation Act (LHWCA). The trial court agreed and it granted Pacarini’s motion for summary judgment. It is from this judgment that Ms. Holmes now appeals.

DISCUSSION

On appeal, the plaintiff raises the following assignments of error: 1) whether the LHWCA provides employees an exception allowing plaintiff to sue her employer for an intentional act caused by a co-worker; 2) whether intentionally imbibing alcohol and illicit drugs which leads to injury is an “intentional act”; and 8) whether the trial court committed legal error in granting defendant’s motion for summary judgment.

“Favored in Louisiana, the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish Nat’l Bank, 04-0837, p. 7 (La.10/19/04), 885 So.2d 540, 545 (citing La. C.C.P. art. 966 A(2)). Motions for summary judgment are reviewed on appeal de novo. The same criteria that govern the trial court’s determination of whether summary judgment is appropriate are used by the reviewing court. Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-883. A motion for summary judgment will be granted “if the |spleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. 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. 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. La. C.C.P. art. 966 C(2).

The determination of whether a fact is material turns on the applicable theory of recovery. Thomas v. North 40 Land Dev., Inc., 04-0610, p. 22 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, 1174. A fact is material if its existence or non-existence is essential to a plaintiffs cause of action under the applicable theory of recovery. Harvey v. Francis, 00-1268, p. 5 (la.App. 4 Cir. 3/21/01), 785 So.2d 893, 897.

Under most circumstances, when a harbor worker or longshoreman is injured while on the job, his employer’s liability is limited to compensation benefits under the LHWCA. See 33 U.S.C.A. § 905(a). Ordinarily, this is an employee’s “exclusive” remedy against his employer. Id. The LHWCA embodies the heart of the worker’s compensation “bargain”: the employee receives the certainty of a specified benefit but foregoes a tort action and the employer incurs | liability for the specified benefit but avoids the risk of a tort action. See WMATA v. Johnson, 467 U.S. 925, 931-32, 104 S.Ct. 2827, 81 L.Ed.2d 768 (1984); Taylor v. Transocean Terminal Operators, Inc., 2000-0604 (La.App.3/14/01), 785 So.2d 860. However, in Taylor, this Court recognized an exception to that general rule. In that case, an employee stabbed a co-worker while they were both on the job. This Court went on to hold that an intentional tort was not subject to the exclusive remedy provision of the LHWCA. Id. The Court reasoned that that type of act was different because it was beyond the scope of what the LHWCA had intended to cover. “Universally, harmful conduct is considered more reprehensible if intentional” so that “[tjhere is a definite tendency to impose greater responsibility upon a defendant whose conduct has been intended to do harm or morally wrong.” Id. at 864; See also Bazley v. Tortorich, 397 So.2d 475, 480 (La.1981). The particular issue of whether the intoxication of a longshoreman falls under the intentional act exception to the LHWCA has never been addressed by this Court.

In the instant case, Mr. Soniat intentionally ingested illegal drugs and alcohol; he then got on a forklift and injured Ms. Holmes. In the instant case, there is a material issue of fact as to whether or not the conduct of Mr. Soniat rises to the level of an intentional tort under the rationale of Taylor. The allegations that this is not the first time an intoxicated Pacarini employee injured someone with a forklift are also troubling.

Although the LHWCA is ordinarily the exclusive remedy for a longshoreman or harbor worker against his or her employer, there do exist certain 1 .^exceptions to this rule as noted above. However, the issues particular to this case have never been addressed by this Court before. That being said, there are certain similarities between the facts of this case and the facts in Taylor. There are genuine issues of material fact as to whether Mr. Soniat intended to harm Ms. Holmes. This should have precluded the granting of summary judgment.

CONCLUSION

For the foregoing reasons, the trial court’s granting of the defendant’s motion for summary judgment is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED


author: JAMES F. McKAY III, Judge.

text:
    John Lee TALBERT, Jr. and Cynthia Talbert v. Henry M. EVANS, Jr., M.D. and Louisiana Avenue Medical Center, Inc., a Medical Corporation.
    No. 2011-CA-1096.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2012.

      Thomas A. Gennusa, II, Joseph S. Pia-cun, Reid S. Uzee, Gennusa Piacun & Ruli, Metairie, LA, for Plaintiffs/Appellees.
    Stephanie B. Laborde, Heather L. Landry, Milling Benson Woodward L.L.P., Baton Rouge, LA, for Appellant, Louisiana Patient’s Compensation Fund Oversight Board.
    (Court composed of Chief Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MADELINE M. LANDRIEU).
   JAMES F. McKAY III, Judge.

hln this medical malpractice case, the defendant, Louisiana Patient’s Compensation Fund Oversight Board, appeals the trial court’s judgment finding it liable for acts of malpractice committed by Dr. Henry M. Evans, Jr. The plaintiffs, John Lee Talbert Jr. and Cynthia Talbert, answered the appeal questioning the trial court’s allocation of fault and quantum of damages. For the following reasons, we affirm as amended.

FACTS AND PROCEDURAL HISTORY

On the morning of December 21, 1999, John Lee Talbert, Sr., a seventy-two (72) year old male accompanied by his adult daughter presented as a new patient at the Louisiana Avenue Medical Center, Inc. (LAMC) with complaints of recurring headaches for three days. During his visit to LAMC, Mr. Talbert was seen and exclusively treated by Miriam Wilbon. Ms. Wilbon was a physician’s assistant to Dr. Henry Evans, Jr., the owner and operator of LAMC.

Mr. Talbert informed Ms. Wilbon that he had been experiencing headaches that lasted for approximately five minutes for several days. A number of | ^diagnostic tests were performed on Mr. Talbert and an EKG was ordered. However, Ms. Wil-bon failed to chart the results of the tests and the EKG was not performed because the EKG machine had run out of fracing paper. From her examination of Mr. Tal-bert, Ms. Wilbon concluded that he suffered from migraine headaches. She then gave him a 2.5 mg sample of Zomig that she retrieved from Dr. Evans’s unlocked medication sample closet. She also issued a prescription to Mr. Talbert for more Zomig on a blank prescription order sheet that Dr. Evans had pre-signed. Ms. Wil-bon advised Mr. Talbert to take the medication every six hours to relieve his head pain. Before he was discharged from LAMC, Mr. Talbert’s daughter advised Ms. Wilbon that her father was not able to remember the instructions he had been given regarding the medication because of a head trauma that had occurred in the past. However, no further examination was conducted and Mr. Talbert was discharged.

Mr. Talbert and his daughter returned home where he took the Zomig as he had been instructed. Within thirty (30) minutes of taking the Zomig, Mr. Talbert began to experience nausea, weakness and slurred speech. Mr. Talbert was transported by ambulance to Memorial Medical Center. It was discovered that he had had a reaction to Codeine. He was then given ten (10) mg of Compazine. After his headache decreased, Mr. Talbert was discharged later that day with a new prescription for Fiorcet.

Mr. Talbert again returned to his home. However, his condition worsened to the point where he could no longer sit up and his speech was impaired. He also | (¡complained of abdominal pain and shortness of breath. He was then taken to Charity Hospital. When he arrived at Charity, his vital signs revealed a blood pressure of 100/P, pulse 186, and a respiratory rate of 44. An EKG was run and it was found to be abnormal. It showed a pattern of sinus tachycardia, right bundle branch block, anterior infarct of undetermined age, and possible infarct of undetermined age. Mr. Talbert died at 3:10 a.m. the following morning. The cause of death was acute myocardial infarct due to ather-osclerotic coronary artery disease.

On November 6, 2000, Mr. Talbert’s adult children, Cynthia Talbert and John Lee Talbert, Jr., filed a medical malpractice complaint against Dr. Evans with the Division of Administration. A medical review panel was convened and it found that Dr. Evans failed to meet the applicable standard of care. In its opinion, the medical review panel concluded: “Dr. Evans was responsible for the care rendered by the Physician Assistant and authorizing the distribution of the medication administered to the patient. The administration of Zomig increased the risk of vasospasm in a patient at risk for coronary artery disease.”

On August 1, 2007 the Talberts filed a post-panel petition for damages against Dr. Evans and LAMC. On April 1, 2008, the Patient’s Compensation Fund (PCF) intervened and subsequently filed a motion for summary judgment on the grounds that the PCF does not cover the acts of Ms. Wilbon. After hearing oral arguments on the motion, the trial court concluded that Ms. Wilbon was not qualified under the PCF and granted the PCF’s motion for summary judgment.

|4The case proceeded to trial on April 7, 2010. The trial court found for the plaintiffs and against the defendants awarding wrongful death damages of $175,000.00 to John Lee Talbert, Jr. and $200,000.00 to Cynthia Talbert. In accompanying reasons for judgment, the court stated that Dr. Evans had breached the standard of care by failing to properly supervise his employee, which breach caused Mr. Tal-bert’s death. All parties filed post-trial motions seeking to amend the judgment. The trial court granted the plaintiffs’ JNOV and/or new trial and amended its judgment to award the plaintiffs an additional $75,000.00 for survival damages and $1,120.00 for past medical expenses incurred by their father. The trial court also granted in part the defendants’ motion for new trial and reduced the damage award to comply with the limitations required by the Louisiana Medical Malpractice Act. The trial court further amended its original judgment to assign comparative fault among the defendants: Dr. Evans 30%, LAMC 30%, and Miriam Wilbon 40%. However, the trial court emphasized that Dr. Evans was legally responsible for all fault that caused the wrongful death of Mr. Talbert. The defendants have appealed this judgment and the plaintiffs have answered the appeal.

DISCUSSION

On appeal, the defendants raise the following assignments of error: 1) the trial court failed to clearly rule that the Louisiana Patient’s Compensation Fund Oversight Board has no liability for any portion of the judgment rendered in these proceedings; and 2) the trial court failed to rule that none of the acts for which | ^defendants were found to be liable constitute acts of “medical malpractice” under applicable law. In their answer to the appeal, the plaintiffs raise the following assignments of error: 1) the trial court improperly apportioned fault among Dr. Evans, Ms. Wilbon and LAMC in its May 3, 2011 judgment when it failed to find Dr. Evans 100% at fault; 2) the trial court’s quantum award to John Lee Talbert, Jr. and Cynthia Talbert for their wrongful death damages in its May 3, 2011 judgment was inappropriate and plaintiffs/ap-pellees suggest that an award of $250,000.00 to John Lee Talbert, Jr. and $250,000.00 to Cynthia Talbert is appropriate; and 3) the trial court’s quantum award for Mr. Talbert’s survival damages was inappropriate and plaintiffs/appellees suggest that an award of $250,000.00 is appropriate.

At the time of the decedent’s death in 1999, the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq., defined medical malpractice as follows:

“Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, and also includes all legal responsibility of a health care provider arising from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

La. R.S. 40:1299.41(A)(13).

In 2001, the Louisiana Legislature amended the definition of malpractice in the Act to include “training or supervision of health care providers.” Act No. 108 of 2001. The statute then read:

“Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render 1 (¡services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

La. R.S. 40:1299.41(A)(13).

The PCF argues that it is not liable for Dr. Evans’s supervision of Ms. Wilbon because that was not covered under the version of the Act that was in place at the time of the alleged malpractice. The PCF relies on three cases from the First Circuit, Bickham v. Inphynet, Inc., 2003-1897 (La.App 1 Cir. 9/24/04), 899 So.2d 15, Williams v. State, 2000-0365 (La.App. 1 Cir. 6/22/01), 801 So.2d 463, and Eusea v. Blanchard, 2004-1855 (La.App. 1 Cir. 2/11/05), 899 So.2d 41, to suggest that claims of negligent supervision do not constitute medical malpractice because the definition of medical malpractice did not specifically include the word “supervision” at the time of Mr. Talbert’s death. However, in Coleman v. Deno, 2001-1517 (La.1/25/02), 813 So.2d 303, the Louisiana Supreme Court noted that the medical malpractice statute could not possibly exhaust every potential scenario of malpractice as defined by the Act; the Court suggested six factors to assist the trier of fact in evaluating whether a claim of malpractice falls within the limited statutory definition. Those factors are:

“[1] whether the particular wrong is ‘treatment related’ or caused by a dereliction of professional skill,
whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached, and
whether the pertinent act or omission involved assessment of the patient’s condition.”
“[4] whether an incident occurred in the context of a physician — patient relationship, or was within the scope of activities which a hospital is licensed to perform,
whether the injury would have occurred if the patient had not sought treatment, and
|7[6] whether the tort alleged was intentional.”

Id. at 315-16.

In the instant case, Ms. Wilbon failed to perform an adequate assessment of Mr. Talbert; this included not performing an EKG because there was no paper for the machine. Mr. Talbert was also given a medication, Zomig, that could have an adverse effect on him because of his coronary artery disease. This all took place at the LAMC where Dr. Evans was the sole supervising physician of Ms. Wilbon. There were also actions on the part of Dr. Evans that were clearly his own which failed to meet the applicable standard of care: namely, his practice of having pre-signed prescription forms and leaving his medication sample closet unlocked and open to his employees.

Dr. Robert Ryan, a board certified family practice physician and a member of the Medical Review Panel, testified as an expert in the field of family medicine. Dr. Ryan opined that the history taken by Ms. Wilbon was inadequate and that the information documented in the chart did not support a diagnosis of migraine headache. Dr. Ryan also stated that it was a breach of the standard of care for Ms. Wilbon to have not obtained an EKG on Mr. Talbert, because without an EKG it was impossible for Ms. Wilbon to confirm Mr. Talbert’s underlying coronary artery disease. Dr. Ryan further opined that Dr. Evans breached the standard of care by allowing his physician assistants access to his unlocked medication sample closet and pre-signing blank prescription sheets. In Dr. Ryan’s opinion, the Zomig caused a coronary spasm which in turn caused Mr. Tal-bert’s myocardial infarction, which in turn caused his death.

As noted above, just because a particular situation is not mentioned by the Medical Malpractice Act, it does not mean that the activity is not covered by the IftAct. See Coleman v. Deno. When we apply the factors enumerated in Coleman to the conduct in the instant case, we find what happened to Mr. Talbert was definitely treatment related. Medical experts opined that the appropriate standard of care was breached. Clearly, the patient’s condition was not properly assessed. Finally, although Dr. Evans never saw Mr. Talbert, a physician-patient relationship existed between them; this is evidenced by Dr. Evans’s operation of the clinic and his signature on Mr. Talbert’s prescription for Zomig. Accordingly, we find no error in the trial court’s finding that the acts constituted medical malpractice and the PCF was liable.

In its original judgment, the trial court found Dr. Evans 100% liable. Although, the trial court amended this judgment to assign fault to Dr. Evans (30%), LAMC (30%) and Ms. Wilbon (40%), the trial court still referred the parties to its discussion regarding respondeat superior and Dr. Evans’s responsibility for the actions of Ms. Wilbon in its previous judgment. Accordingly, it appears that the trial court intended to hold Dr. Evans 100% liable for the judgment.

LAMC was Dr. Evans’s clinic and he was the sole supervising physician for Ms. Wilbon. Without Dr. Evans, LAMC would not exist and Ms. Wilbon would never have treated Mr. Talbert. Therefore, it goes without saying that Dr. Evans is ultimately responsible for what transpired at his clinic. This includes any malpractice that may have occurred. To the extent that the trial court’s judgment is ambiguous, we amend it to reflect that Dr. Evans is 100% liable for the plaintiffs’ damages.

The plaintiffs contend that the trial court’s damage awards of $75,000.00 for survival and $175,000.00 and $200,000.00 for wrongful death were too low. A trial court’s assessment of quantum is entitled to great deference on review because [9it is a determination of fact. Menard v. Lafayette Ins. Co., 2009-1869, p. 14 (La.3/16/10), 31 So.3d 996, 1007. Therefore, an appellate court should rarely disturb an award on review. Id. It is only when an award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). It is only when an abuse of discretion is found that the reviewing court will determine the highest or lowest point within the court’s discretion. Guillot v. Daimlerchrysler Corp., 2008-1485, p. 30 (La.App. 4 Cir. 9/24/10), 50 So.3d 173, 196; Logan v. Brink’s Inc., 2009-0001, p. 13 (La.App. 4 Cir. 7/1/09), 16 So.3d 530, 540; Riley v. Maison Orleans II, Inc., 2001-0498, p. 11 (La-App. 4 Cir. 9/25/02), 829 So.2d 479, 487. In the instant case, the trial court’s awards for the survival and wrongful death claims are not so low as to indicate an abuse of discretion.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in all respects except we amend it to indicate that Dr. Evans is 100% liable for the plaintiffs’ damages.

AFFIRMED AS AMENDED

LANDRIEU, J., concurs in the result.


author: PAUL A. BONIN, Judge.

text:
    Pamela Hatheway PERSON, Wife of/and Eric Oliver Person v. 2434 ST. CHARLES AVENUE CONDOMINIUM ASSOCIATION, Harold Judell and Soniat Realty.
    No. 2011-CA-1097.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2012.

      Brett J. Prendergast, New Orleans, LA, for PlaintiffyAppellant.
    Lawrence J. Boasso, Scott G. Jones, In-abnet & Jones, L.L.C., Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

|, Pamela and Eric Person, owners of a condominium unit on St. Charles Avenue, sued their adjoining neighbor and condo unit owner, Harold Judell, and his insurer, Encompass Property and Casualty Company. The Persons claimed that Mr. Judell and Encompass were liable to them for water and mold damages to their unit caused by Mr. Judell’s failure to properly repair, or to repair at all, his unit which had been storm-damaged. Mr. Judell and Encompass filed a motion for summary judgment, seeking dismissal of the Persons’ lawsuit on the basis that the condominium agreement released Mr. Judell from liability to them to the extent that the damage was covered by insurance. The summary judgment motion contended that the Persons’ damage had been covered by their own and the condo association’s insurers, who had been released.

When the motion was first scheduled for hearing, the district judge, finding that the submitted evidentiary support for the motion was insufficient, requested Mr. Judell and Encompass to supplement their evidence, recessed the hearing, and considered the motion at a later date. The Persons objected to the admissibility of |;>the supplemental materials, but the district judge considered them and granted summary judgment, dismissing their lawsuit with prejudice. The Persons appeal the dismissal of their lawsuit.

After our de novo review, because we find that the supplemental materials do not satisfy the evidentiary requirements for admissibility at a summary judgment motion, we decide that Mr. Judell and Encompass were not entitled to summary judgment. We accordingly reverse the judgment and remand the matter to the district court for further proceedings. We explain our decision below.

I

The Persons argue that, except for the condominium declaration, the remaining materials submitted as evidentiary support by Mr. Judell and Encompass are inadmissible for the purposes of summary judgment. The Persons timely objected to the trial court’s consideration of the materials. Mr. Judell argues that the materials objected to by the Persons were produced in discovery and, apparently further argues, that on such account they are exempted from the evidentiary requirements for certification, authentication, and admissibility.

Mr. Judell supplemented his motion with the following exhibits: (a) an unverified copy of a letter from his counsel to the Persons’ counsel seeking copies of the Persons’ insurance policy and releases executed by them; (b) an unverified Rcopy of a letter from the Persons’ • counsel to Mr. Judell’s counsel, which letter essentially declines to comply with the earlier request; (c) an unverified copy of a letter from Manny Hidalgo, a State Farm agent, to Mr. Person, referencing proof of insurance certificates; (d) several uncertified “Evidence of Insurance” for the Persons as the “unitowner” and the condo association as the “insured” for different periods, and several uncertified “Certificate of Flood Insurance” for the Persons as the “unitowner” and the condo association as the “insured” for different periods; (e) uncertified “declarations page” for State Farm for the period May 22, 2002 to May 22, 2003 on unit 604, and (f) an unverified State Farm damage-estimate for condo unit 604.

Mr. Judell’s legal argument for summary judgment rests on the condominium agreement, which constitutes the law between him and the Persons. See La. R.S. 9:1124.115 A (“The condominium declaration and bylaws shall have the force of law between the individual unit owners.”) The agreement expressly provides that “[e]ach Unit owner waives and releases any and all claims which he may have against any other Unit Owner, ... for damages to the Common Elements, the Units, or to any personal property located in the Units.” But the waiver and release is expressly— and importantly — conditioned “to the extent that such damage is caused by a casualty for which insurance coverage is provided.” Because the Persons do not argue that the actions of Mr. Judell resulted from his intentional act or gross negligence, this advance exclusion of liability for property damage is enforceable as written. See La. Civil Code art. 2004.

|4But the Persons are not required to negate the waiver and release; Mr. Judell bears the burden of proving the facts supporting the waiver and release. See Boudreaux v. State Farm Mut. Auto. Ins. Co., 02-0411, p. 8 (La.App. 4 Cir. 8/14/02), 825 So.2d 558, 562-568 (State Farm moved for summary judgment based on the affirmative defense that it had already paid its policy limits and argued that the burden shifted to the plaintiff. The appellate court reversed the trial court’s award of summary judgment because State Farm had not satisfied its initial burden of proof). Thus, Mr. Judell must submit satisfactory evidence not only of the existence of the waiver and release but also that the damages claimed by the Persons were caused by a casualty for which insurance is provided. Mr. Judell, by submitting the condo declaration as support, establishes one essential element of his affirmative defense: an enforceable, albeit conditional, waiver and release provision.

We then turn to examine whether Mr. Judell’s evidence shows that the Persons’ claimed damage was caused by a casualty for which insurance is provided.

We have repeatedly held that “[i]n meeting the burden of proof, unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and therefore will not be considered.” Williams v. Memorial Medical Center, 03-1806, p. 14 (La.App. 4 C ir. 3/17/04), 870 So.2d 1044, 1053.

“The requirement that documents be verified or authenticated is not merely a mechanical one of form only. It is based on the fundamental fact that such | ¿documents are not self-proving.” Schully v. Hughes, 00-2605, p. 5 (La.App. 4 Cir. 6/5/02), 820 So.2d 1219, 1222. To allow unverified and or unauthenticated documents to be considered would result in “all manner of worthless documents [to] magically somehow become admissible by virtue of merely stapling them to a motion for summary judgment.” Id.

With respect to the three letters attached to Mr. Judell’s motion, they are not admissible because they are not affidavits and they are not otherwise certified or verified by an affidavit. See Cusimano v. Port Esplanade Condominium Ass’n, Inc., 10-0477, p. 6 (La.App. 4 Cir. 1/12/11), 55 So.3d 931, 936 (noting that the trial judge did not abuse her discretion in striking unverified letters when considering a motion for summary judgment). With respect to the unverified “evidences of insurance,” “certificates of insurance,” and “declarations page,” these too are not admissible; even, perhaps especially, an insurance policy itself must be verified if submitted in connection with a motion for summary judgment. See Lee v. Unum Life Ins. Co. of America, 04-1483, pp. 9-10 (La.App. 4 Cir. 3/30/05), 900 So.2d 1021, 1027. Here, Mr. Judell, it must be recalled, bears the burden of showing that the casualty loss was covered by insurance. Id. n. 8. Finally, the unverified State Farm damage-estimate report for unit 604 is not admissible; a report, in the absence of an agreement between the parties, when not properly identified by affidavit is not admissible. See Harvey v. Francis, 00-1268, p. 3 (La.App.3/21/01), 785 So.2d 893, 896 (concerning an arson report); Chariot Alabama Great Southern R. Co., 98-0895 (La.App. 4 Cir. 6/24/98), 716 So.2d 906, 908 (concerning a police report).

Because the Persons timely and correctly objected to the admissibility of these materials, we cannot consider them in our de novo determination of the appropriateness of summary judgment in this case.

II

Mr. Judell and Encompass argued to the trial judge about releases executed by the Persons in favor of the condo association and its insurers concerning mold damage to the Persons’ unit. But none of that argument was supported by any admissible evidence. And “[ajrgument of counsel no matter how articulate is not evidence.” Charlot, supra. Additionally, Mr. Judell and Encompass argue that their submissions are at least sufficient to shift the burden to the Persons under La. C.C.P. art. 966 C(2). The burden-shifting provision of that section, however, by its own terms only applies when the moving party (here Mr. Judell and Encompass) “would not bear the burden of proof at trial on the matter that is before the court on the summary judgment motion.” La. C.C.P. art. 966 C(2). The matter before the court on this summary judgment motion is whether the waiver and release provision of the condominium declaration has become operative “to the extent that such damage is caused by a casualty for which insurance coverage is provided.” As to that matter, Mr. Judell and Encompass bear the burden of proof at trial and thus their reliance on article 966 C(2) is misplaced.

17Based upon the record before us, there is no admissible evidence that any insurance coverage was provided for the casualty which caused damage to the Persons’ condo unit.

CONCLUSION

In the light of Mr. Judell’s burden of proof, the materials with which he sought to supplement his motion do not constitute competent evidence and should not have been considered by the trial judge. Mr. Judell is not entitled to judgment as a matter of law at this time because he has not proved with competent evidence that the waiver and release are operative. Thus the Persons (as the adverse party) are not yet required to demonstrate a genuine issue of material fact exists.

DECREE

The summary judgment granted in favor of Harold Judell and Encompass Property and Casualty Company, dismissing the lawsuit by Pamela and Eric Person against them with prejudice, is reversed. The matter is remanded to the trial court for further proceedings consistent with this decision. Costs of this appeal are taxable at the time of final judgment.

REVERSED AND REMANDED

      . Mr. Judell subsequently died and his succession representative was voluntarily substituted. See La. C.C.P. art. 801.

      . See Jones v. Estate of Santiago, 03-1424, p. 5 (La.4/14/04), 870 So.2d 1002, 1006 ("Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Thus, this court uses the same criteria as the trial court in determining whether summary judgment is appropriate — whether there is a genuine issue of material fact and whether mover is entitled to judgment as a matter of law”).

      . The Persons also assign as errors the failure of the trial judge to require production of complete insurance policies as well as the inclusion of Encompass in the relief granted. Because the evidentiary insufficiency of the supplemental materials is dispositive, we pre-termit any analysis or decision on the remaining assignments.


author: TERRI F. LOVE, Judge. LANDRIEU, J.,

text:
    Brandy M. D’ANGELO v. Mandy GUARINO Wife of/and Eugenio Guarino, State Farm Fire and Casualty Company, Terry Tedesco, Inc., and XYZ Insurance Company.
    No. 2010-CA-1555.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 2012.

      Craig C. Knippenberg, Pearl River, LA, for Brandy M. D’Angelo.
    Dominic J. Ovella, Sean P. Mount, Stephen C. Kogos, Jr., Jason M. Baer, Hailey McNamara Hall Larmann & Papale, L.L.P., Metairie, LA, for Terry Tedesco, Inc.
    Kathryn T. Wiedorn, Alexander R. Saunders, Pelleteri & Wiedorn, L.L.C., New Orleans, LA, for Mandy and Eugenio Guarino.
    Doris T. Bobadilla, Andrea L. Albert, Shannon T. Brown, Galloway Johnson Tompkins Burr & Smith, Mandeville, LA, for North American Specialty Insurance Company.

      (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge MADELEINE M. LANDRIEU).

       Judge Madeleine M. Landrieu replaced Judge Patricia R. Murray on the remand due to Judge Murray’s retirement.

   TERRI F. LOVE, Judge.

|]The plaintiff fell and sustained injuries to her right ankle on the Guarino’s property. She alleges that the Guarino’s and the construction company breached a duty to her because the step she utilized to exit the residence was higher than codal requirements prescribe. All of the defendants filed motions for summary judgment, which the trial court granted. We dismissed the plaintiffs original appeal because the record lacked both motions for summary judgment, supporting memo-randa, exhibits, and reply memoranda. However, the Louisiana Supreme Court remanded the matter for record supplementation and consideration. After supplementation and consideration, we find that no genuine issues of material fact exist as to the legal causation of the plaintiffs injuries because the plaintiff failed to provide a scintilla of evidence that the alleged extra height of the step was the cause-in-fact of her injuries based on the facts and circumstances of this case. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Brandy D’Angelo exited the exterior side doorway of Mandy and Eugenio Guarino’s residence on July 11, 2004, and, after a flat footfall, broke her ankle. 12Specifically, Ms. D’Angelo suffered from a right tibial plafond and lateral malleolus fracture of the right leg and ankle. Ms. D’Angelo’s injuries resulted in multiple surgeries.

Ms. D’Angelo filed a petition for damages against the Guarinos, State Farm Fire and Casualty Company (“State Farm”), as their insurer, Terry Tedesco, Inc. (“TTI”), as the builder of the residence, and TTI’s insurer (collectively “Defendants”) alleging that the Defendants’ negligence was the proximate cause of her injuries. Ms. D’Angelo’s first supplemental and amended petition specifically named TTI’s insurer as North American Specialty Insurance Company (“NAS”).

The Guarinos filed a motion for summary judgment alleging that Ms. D’Angelo could neither prove that the step was defective, nor the remaining components of premises liability. TTI also filed a motion for summary judgment stating that Ms. D’Angelo “cannot offer any explanation or evidence how this ½ inch to 1 inch alleged codal deviation caused any damage.” The trial court granted the Defendants’ motions for summary judgment. However, Ms. D’Angelo filed a motion to vacate judgment and alternatively for a new trial.

The trial court then vacated the judgments, finding that “the standard used to determine if plaintiff had asserted evidence concerning causation of the plaintiffs injury had been incorrectly applied to Dr. Frederick Keppel’s testimony.” The trial court ordered additional memoranda from all parties for consideration prior to its next judgment. After consideration of the memoranda, the trial court granted the Guarinos’ motion for summary judgment and dismissed all of Ms. D’Angelo’s claims. The trial court granted TTI’s motion for summary judgment in part, but denied the motion for summary judgment in part based upon contractor immunity. |sHowever, the trial court dismissed all of Ms. D’Angelo’s claims against TTI and NAS. Ms. D’Angelo’s devolutive appeal followed.

This Court dismissed Ms. D’Angelo’s devolutive appeal because the appellate record lacked the motions for summary judgment, related memoranda, attached exhibits, and replies to oppositions to the motions for summary judgment upon which the trial court’s judgment was based. D’Angelo v. Guarino, 10-1555 (La. App. 4 Cir. 5/18/11), 66 So.3d 536, writ granted, 11-1558 (La.10/07/11), 71 So.3d 300. The Louisiana Supreme Court granted a writ of certiorari and remanded the case for further proceedings. D’Angelo v. Guarino, 11-1558 (La.10/07/11), 71 So.3d 300. This Court then ordered that the parties supplement the record for full consideration.

STANDARD OF REVIEW

Dispositions of motions for summary judgment are reviewed using the de novo standard of review “under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate.” Wilson v. Calamia Constr. Co., 11-0639, p. 3 (La.App. 4 Cir. 9/28/11), 74 So.3d 1198, 1200.

The summary judgment “procedure is favored and shall be construed” to “secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969.” La. C.C.P. art. 966(A)(2). “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). “After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue |4as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La. C.C.P. art. 966(C)(1).

The mover bears the burden of proof. La. C.C.P. art. 966(C)(2). “However, if the movant,” as in the case sub judice, “will not bear the burden of proof at trial,” the movant must “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.” La. C.C.P. art. 966(C)(2). “The burden of proof does not shift to the party opposing summary judgment until the moving party presents a prima facie case that no genuine issues of material fact exist.” Wilson, 11-0639, p. 3, 74 So.3d at 1200. “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.” La. C.C.P. art. 966(C)(2).

The Louisiana Supreme Court stated that:

A “genuine issue” is a “triable issue.” Toups v. Hawkins, 518 So.2d 1077, 1079 (La.App. 5th Cir.1987) (citing Brown [v. B & G Crane Service, Inc., 172 So.2d 708 (La.App. 4th Cir.1965) ], supra). More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.”
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991), writs denied, 596 So.2d 211 (La.1992).

Hayes v. Autin, 96-287, p. 5 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, 694, quoting Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 5730, 751. The Louisiana Supreme Court also expounded upon the burden of proof on a motion for summary judgment by stating that the mover:

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. 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 he or she will be able to meet the burden at trial. See MARAIST AND LEMMON, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE, § 6.8 (1999). Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3d Cir.12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41.

Babin v. Winn-Dixie Louisiana, Inc., 00-0078, p. 4 (La.6/30/00), 764 So.2d 37, 39-40.

SUMMARY JUDGMENTS

Ms. D’Angelo asserts that the trial court committed legal error and mistakenly granted the Defendants’ motions for summary judgment because the step leading onto the Guarinos’ driveway was allegedly approximately two inches higher than co-dal requirements, which created an “unreasonably dangerous” defect.

When seeking to recover under a strict liability theory, the plaintiff “must show that there was a defect in design which created an unreasonable risk of harm during normal use, and that the defect was the cause of’ his injuries. Se. Fid. Ins. Co. v. Cashio, Cochran & Associates, Inc., 505 So.2d 141, 142 (La.App. 4th Cir.1987). “A defect is a flaw or fault which creates an unreasonable risk of harm to others.” Id.

| fi“The test for determining the causal relationship between an accident and a subsequent injury is whether the plaintiff proved through medical and lay testimony that it is more probable than not that the subsequent injuries were caused by the accident.” Williams v. Stewart, 10-0457, p. 6 (La.App. 4 Cir. 9/22/10), 46 So.3d 266, 272. In order to meet the plaintiffs burden of causation,

a plaintiff may be aided by a presumption of causation if before the accident the plaintiff was in good health, but subsequent to the accident the symptoms of the disabling condition appear and those symptoms continuously manifest themselves afterward providing that the evidence establishes a reasonable possibility of causal connection between the accident and the disabling condition. Dabog v. Deris, 625 So.2d 492, 493-94 (La.1993); Housley v. Cerise, 579 So.2d 973, 980 (La.1991). This so-called Hous-ley presumption can be broken down into three component parts: (i) the plaintiff must prove that he or she was in good health before the accident; (ii) the plaintiff must prove that subsequent to the accident symptoms of the alleged injury appeared and continuously manifested themselves afterwards; and (iii) the plaintiff must prove through evidence — medical, circumstantial, or common knowledge — a reasonable possibility of causation between the accident and the claimed injury. Juneau v. Strawmyer, 94-0903 (La.App. 4 Cir. 12/15/94), 647 So.2d 1294, 1299. The plaintiff has the burden of proving each component part by a preponderance of the evidence. Id. The Housley presumption is rebut-table; the defendant may rebut it by showing that some other particular incident could have caused the disabling condition. 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof, § 4.3 (citing Simon v. United States, 51 F.Supp.2d 739 (W.D.La.1999)); Dixon [v. Travelers Insurance Company ], 02-1364 at pp. 8-9 [ (La.App. 4 Cir. 4/2/03)], 842 So.2d [478] at 484; Maranto [v. Goodyear Tire & Rubber Co.], supra [650 So.2d 757 (La.1995) ].

Williams, 10-0457, pp. 6-7, 46 So.3d at 272.

Causation is a factual issue. Jordan v. State ex rel. Bd. of Adm’rs of Louisiana State Univ. Agric. & Mech. Coll., Health Servs. Div., 09-1277, p. 4 (La.App. 4 Cir. 5/26/10), 40 So.3d 1139, 1142. However, it is undisputed that Ms. D’Angelo suffered a right tibial plafond and lateral malleoulus fracture of the right |7leg and ankle when she stepped out the Guarino’s doorway. Based upon her own testimony, it is also undisputed that Ms. D’Angelo made a flat footfall as opposed to a trip. The movers in this case, the Defendants, pointed to an absence of factual support for an element essential to Ms. D’Angelo’s claims. The Defendants presented a prima facie case that Ms. D’Angelo failed to submit any evidence regarding whether the alleged increased height of the step was the cause of her injuries. Therefore, the burden then shifted to Ms. D’Angelo to “produce factual support sufficient to establish that” she “will be able to satisfy his evidentiary burden of proof at trial.” La. C.C.P. art. 966(C)(2). As the trial court judge stated in his reasons for judgment:

[n]o matter how it is termed under negligence, strict liability principles, or duty-risk analysis, the plaintiff must establish that the duty owed to the plaintiff encompassed the injury arising in this manner. Whether you term is as being the cause, the proximate cause, the legal cause, or the cause in fact of the plaintiffs injury, the principle remains the same. In this instance, is the fact that plaintiff stepped down an additional two inches to the driveway the reason that defendants should be liable? Termed another way, has the plaintiff presented evidence that, but for this additional two inches, she would not have fallen as a result of her stepping down to the driveway?

We agree.

Ms. D’Angelo presented excerpts from numerous depositions, including Dr. Kep-pel’s deposition. Dr. Keppel testified that a flat footfall could cause Ms. D’Angelo’s injuries. However, he also stated that he could not answer anything to any degree of medical certainty as to whether an alleged increase in height of the step contributed to Ms. D’Angelo’s injuries. In sum, Dr. Keppel could only state that “a fall of the type that she sustained could have sustained — could have caused Rthese injuries.” The engineering reports submitted by Ms. D’Angelo described the applicable building codes, measurements of the step, and a theory on concrete settling. Dr. Ernest Chiodo’s affidavit stated that the “forces generated by the fall suffered by Brandy D’Angelo were the cause of her right leg and ankle fracture.” However, Dr. Chiodo’s report does not address whether Ms. D’Angelo’s injuries occurred because of the alleged two-inch deviation in the Guarinos’ step.

Ms. D’Angelo asserts that “Housley presumption” applies, which would entitle her to a reversal on appeal. The Louisiana Supreme Court reiterated that:

[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Housley v. Cerise, 579 So.2d 973, 980 (La.1991), quoting Lucas v. Ins. Co., 342 So.2d 591 (La.1977). We find this argument misplaced, as there is no dispute that Ms. D’Angelo suffered injuries as a result of the fall.

Although, in the case sub judice, Ms. D’Angelo presented expert and lay testimony, as well as engineering reports, she failed to respond with factual support sufficient to establish that she would be able to prove by a preponderance of the evidence the cause-in-fact element at trial. In other words, Ms. D’Angelo failed to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial that the alleged two-inch deviation from codal requirements caused her injuries, which thereby entitled the Defendants to summary judgments. Therefore, after conducting a de novo review, we find that the trial court properly granted the summary judgments in favor of the Defendants and affirm.

| ^decree

For the above mentioned reasons, we find that the trial court did not err because Ms. D’Angelo failed to present a scintilla of evidence that she would be able to meet her burden of proof at trial in regards to the legal cause of her injuries; more specifically, whether the alleged extra height of the step caused her injuries. Therefore, we affirm.

AFFIRMED

McKAY, J., concurs in the result.

LANDRIEU, J., dissents with reasons.

LANDRIEU, J.,

dissents with reasons.

hi respectfully dissent. Whether the alleged unreasonably dangerous condition of this stair is a cause-in-fact of an injury is a question of fact, and the plaintiff has sufficient evidence to proceed to trial.

The plaintiff can meet her burden of proof on the issue of causation by establishing that it is more probable than not that the defect was a proximate cause of her fall. It need not be the only cause. “Proof by direct or circumstantial evidence is sufficient to constitute a preponderance of evidence when, taken as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.” Norfleet v. Lifeguard Transportation Service, Inc., 2005-0501, pp. 4-5 (La.App. 4 Cir. 5/17/06), 934 So.2d 846, 852 (citing Riley v. Salley, 2003-1601, p. 2 (La.App. 4 Cir. 4/21/04), 874 So.2d 874, 876).

Here, the plaintiff introduced expert testimony that the rise of the stair was in violation of the applicable building code and created an “unreasonable trip hazard.” She also has presented evidence that she fell as she traversed this stair and sustained an injury to her ankle. It is undisputed that she was taken to the emergency room immediately after her fall, and was admitted to the hospital where she underwent surgery to repair her broken ankle. Dr. Keppel, the plaintiffs treating physician, testified in deposition that “... a fall of the type that she |2sustained — could have caused these injuries.” He further testified that the kind of injury sustained by the plaintiff is typically caused by a “turning in of the foot or a twisting type of event of the foot. In this case, she had a spiral fracture, so she had some type of twisting action to the foot.” The difficulty here is that Mrs. D’Angelo testified that after exiting through the doorway and stepping down, she put her foot on the cement driveway, heard a pop, and fell. The defendants conclude that this is a flat footfall, not a trip, and had nothing to do with the fact that the step had an allegedly defective rise. The trier of fact could reasonably conclude otherwise, however. See, e.g., Independent Fire Insurance Co. v. Sunbeam Corporation. 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

On motions for summary judgment, the trial court must draw from the undisputed facts those inferences that are most favorable to the party opposing the motions. In viewing the evidence in the light most favorable to the plaintiff and considering the totality of the evidence, both direct and circumstantial, the question of causation here is a question to be determined by the trier of fact.

Therefore, I would reverse the granting of the summary judgments and remand for trial.

      . Mrs. Guarino is Ms. D’Angelo’s sister. Ms. D'Angelo lived in the residence for at least six months and visited frequently after moving out.

      . It is undisputed in the record and noted by the learned trial court that Ms. D'Angelo did not trip.