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

text:
    Jason LEWIS v. DEPARTMENT OF POLICE.
    No. 2011-CA-1408.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 2012.
    Rehearing Denied June 13, 2012.

      Claude A. Schlesinger, C. Theodore Al-paugh, III, Kristie D. Holm, Guste, Barnett, Schlesinger, Henderson & Alpaugh, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Victor L. Papai, Jr., Deputy City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge, MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| Mason Lewis appeals his termination from the New Orleans Police Department. For the reasons that follow we reverse the decision of the appointing authority and reinstate Jason Lewis.

Officer Jason Lewis was assigned to the Police K-9 Division in 2004. In 2006, Officer Lewis was assigned to be the handler for Primo, a Belgian Malinois. As Primo’s handler, Officer Lewis cared for Primo twenty-four hours a day, seven days a week. After working. Primo out on May 27, 2009, Officer Lewis placed Primo in his K-9 unit, gave him water and turned on the unit’s cooling system. Then Officer Lewis went inside his home to shower and dress for his ÑOPD shift.

When Officer Lewis returned to the vehicle he immediately noticed that the seats in the vehicle had been torn to pieces. He opened the vehicle to reprimand Primo for destroying the seats and noticed he was lying in the back coughing. Believing that foam stuffing from the seats was obstructing his airway, Officer Lewis pulled Primo from the vehicle and attempted to clear his air passageway. He testified that the dog’s body temperature seemed elevated so he hosed him Rdown trying to cool him down. Next, he placed the dog in his personal vehicle and drove him to the closest veterinarian office.

After being treated on an emergency basis at the Algiers Animal Clinic, Primo was transferred to Southeast Veterinary Specialists, where he was pronounced dead. Primo’s remains were sent to the LSU School of Veterinary Medicine for an autopsy and report. The official cause of death for Primo was determined to be overheating.

Immediately following Primo’s death, Captain Clarence Hebert and Sergeant Ricky Blanchard inspected the K-9 vehicle. The inspection of the vehicle was video-taped. When opening the door to the vehicle, they noticed and documented the damage to the front seats. Further documented was the vehicle’s air conditioner on and set to the maximum cool and maximum air positions. Next the officers tested the back-up system to determine if it was working properly. Once the air conditioner was turned off and the interior temperature reached 87 degrees, an alarm sounded, the fan started, and the windows rolled down.

Shortly after Primo’s death, there was an investigation by the Public Integrity Bureau (“PIB”). In addition to reviewing the vehicle and medical reports, PIB conducted several interviews including Officer Lewis’ co-workers, neighbors and three veterinarians. None of the interviews gave any indication that |,..Officer Lewis ever mishandled or neglected Primo. To the contrary, the doctors stated that Pri-mo’s heat stroke could have been brought on by his physical conduct Primo was known to be high strung and to suffer from separation anxiety when he was away from Officer Lewis. The result of the PIB was that there was insufficient evidence to prove that Officer Lewis neglected any of his duties as they pertained to the handling and care of Primo. PIB’s conclusion was that the disposition to the alleged violation be classified as “Rule 4: Performance of Duty; Paragraph 4a: Neglect of Duty; . Not Sustained”.

Later, the Metropolitan Crime Commission received an anonymous tip that they should “look into” Primo’s death. This was forwarded to the Orleans Parish District Attorney’s office. In December 2009, a Grand Jury reviewed the evidence of the case and failed to return an indictment or a “no true bill.” On April 22, 2010, the District Attorney filed a Bill of Information in Orleans Parish Criminal District Court against Officer Lewis. The Bill of Information charged Officer Lewis with Aggravated Cruelty to Animals, a felony. Officer Lewis was arrested.

Officer Lewis’ testimony before the hearing officer gave an account of the events that followed. The case was allotted to Judge Alarcon’s section. Officer Lewis stated that his attorneys considered Judge Alarcon to be an animal activist. At his bond hearing before Judge Alarcon, the Judge ordered a $100,000.00 bond. A $10,000.00 bond was suggested by the attorneys without objection by the State. According to Officer Lewis’ undisputed testimony, Judge Alarcon altered the Ramount of the bond to $35,000.00 and said “[w]ell, I am going to put on the record that this is what I normally give my negligent homicide cases.” There was some discussion by his attorneys regarding filing a motion to recuse, but that was not done.

Just prior to trial, Officer Lewis stated that he met with his attorneys who reviewed his options with him. Due to all the media hype and special interest groups pushing the case, his attorneys did not think he could get a fair jury trial. Officer Lewis had already experienced Judge Alarcon’s demeanor towards him and had a general understanding of his opinion of the crime. So when his attorneys urged him to plead to a misdemeanor he eventually succumbed to the reality of his situation. According to his testimony, he had no choice but to plead guilty to Misdemeanor Cruelty to Animals. Judge Alar-con accepted the plea, but only after redacting any reference to La.C.Cr.P. article 894.

Following his plea in Criminal Court, he was terminated from his employment with the NOPD by the Superintendent of Police Roñal Serpas. Officer Lewis appealed his termination to the Civil Service Commission. That hearing was had on February 9, 2011, and a ruling was issued on September 14, 2011. The Commission upheld the appointing authority’s decision to terminate Officer Lewis. That ruling is the subject of this appeal.

| Jt is well settled that when determining if the disciplinary action taken by the appointing authority was based on good cause and commensurate with the infraction, this court will not modify the order of the Commission unless the decision was arbitrary, capricious or characterized an abuse of discretion. Pearson v. Dept. of Police, 09-725, p.7 (La.App. 4 Cir. 11/12/09), 26 So.3d 264, 268 (citing Cure v. Dept of Police, 07-166, p.2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094). On appeal to the Commission, the appointing authority must prove, “by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority.” Id. This Court’s review of the Commission’s findings of fact is governed by the manifestly erroneous/clearly wrong standard. Id.

On appeal Jason Lewis contends that the Commission erred in affirming his termination since the appointing authority did not prove by a preponderance of the evidence that Jason Lewis’ actions impaired the efficient operation of the public service. Alternatively, he argues that the penalty imposed by the appointing authority was excessive.

The hearing officer for the Commission heard the testimony of several witnesses, including investigating officers and experts. Glaringly absent from the hundreds of pages of testimony was any evidence that Jason Lewis was negligent in his duties as a handler and caregiver for Primo. All evidence indicates otherwise and the Commission’s ruling acknowledged as much, stating “[t]his case would be 1 ^simple if in fact the Appellant mistreated, neglected, or was cruel towards the animal that he was assigned to care for and protect.”

During his testimony, Chief Serpas claimed that he found Officer Lewis had violated “moral conduct, adherence to the law.” He further testified that “[a]s an appointing authority, when you review cases like this you don’t do it by whim ... You take and consider all the issues....” Chief Serpas stated that in this case he concluded “that the effective and efficient service of the Police Department could not be guaranteed in Mr. Lewis’ continued employment.” He reasoned that the loss of Primo and the cost to replace him was a consideration and that he viewed it as impairing the efficiency of the operation. However, on cross-examination he admitted that although he knew of PIB’s investigation and report, it was not something he looked at. In direct contradiction to his statement that all the issues must be considered, Chief Serpas based the decision to terminate solely on Jason Lewis’ guilty plea. He ultimately determined that the guilty plea, on its face, warranted termination, even though the guidelines for disciplinary action spanned from two weeks to termination.

The Commission recognized that the appointing authority, for unknown reasons, ignored the underlying facts of this case when making the decision to terminate. It went so far as to state, “[i]f ever there was a case that would justify an exploration of the underlying facts, this would be such a case.” Nonetheless, the Commission went on to find that termination based solely on the guilty plea was not an abuse of discretion. We disagree.

|7The Commission was presented with ample evidence indicating that Primo’s death was not a result of any action or inaction by Jason Lewis. Included in that evidence was expert testimony that established Primo was high strung and had a history of working himself up when he was separated from his handler. The expert testimony explained that the condition of the interior of the vehicle was not representative of a dog suffering from heat stroke, but rather a dog that worked himself into a frenzy, which subsequently resulted in increased body temperature and heat stroke.

The appointing authority had the burden of proving, by a preponderance of the evidence, that the dereliction occurred and presented a real and substantial relationship to the efficient operation of the appointing authority. Pearson, supra. Based on the record before this court, the appointing authority failed to meet that burden. The only evidence put forth by the appointing authority was the guilty plea. We find it was arbitrary, capricious and an abuse of discretion for the appointing authority to ignore the results of the PIB investigation surrounding the death of Primo and the mitigating circumstances involved with Jason Lewis’ plea. We further find it arbitrary and capricious for the Commission to acknowledge the evidence in support of Jason Lewis’ appeal and then disregard it when making its determination.

For these reasons, we reverse the decision of the Civil Service Commission and order that Jason Lewis be reinstated. All pay and benefits are to be restored to Jason Lewis with interest.

REVERSED

TOBIAS, J., concurs in part, dissents in part, and assigns reasons.

TOBIAS, J.,

concurs in part, dissents in part, and assigns reasons.

_JjThe gravamen in this case is whether the appointing authority, the New Orleans Police Department, and more specifically, Superintendent of Police Roñal W. Serpas, abused his discretion in terminating Officer Lewis from his civil service status protected job with the department solely because Officer Lewis entered a plea of guilty to the misdemeanor offense of simply cruelty to animals, La. R.S. 14:102.1 A(2), even though Superintendent Serpas opines that each disciplinary action is reviewed on a case-by-case basis.

The law is, in my view, quite clear and is summarized by the following quote from Stevens v. Dept. of Police, 00-1682, pp. 4-8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 625-27:

In Smith v. New Orleans Police Department, 99-0024, pp. 5-6 (La.App. 4 Cir. 9/22/99), 743 So.2d 834, 837-838, writ denied, 99-3242 (La.1/14/00), 753 So.2d 221, this Court set forth the standard of appellate review regarding civil service disciplinary cases as.follows:
In civil service disciplinary cases, an appellate court is presented with a multifaceted review function. Walters v. Department of Police of the City of New Orleans, 454 So.2d 106 (La.1984). First, as in other civil matters, deference will be given to the factual conclusions of the Commission. Hence, in deciding whether to |2affirm the Commission’s factual findings, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Walters, supra.
* * ⅜
Second, in evaluating the Commission’s determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the court should not modify the Commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. La. R.S. 49:964.
Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311 (La.App. 4th Cir.1990). The Appointing Authority has the burden of proving the impairment. La. Const. Art. X, Sec. 8(A). The appointing authority must prove its case by a preponderance of the evidence. Cittadino, supra.
“Arbitrary or capricious” can be defined as the lack of a rational basis for the action taken. Shields v. City of Shreveport, 579 So.2d 961 (La.1991). A reviewing court should affirm the Civil Service Commission conclusion as to existence or cause for dismissal of a permanent status public employee when the decision is not arbitrary, capricious, or an abuse of the Commission’s discretion, as presented in this case.
Employees with the permanent status in the classified civil service may be disciplined only for cause expressed in writing. La. Const., Art. X, Sec. 8(A). Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. Newman v. Department of Fire, 425 So.2d 753 (La.1983).
In reviewing the Commission’s findings of fact, the Court’s appropriate standard of review suggests that this Court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. If the Commission’s order is not arbitrary, capricious or characterized by abuse of discretion, this Court should not modify the Commission’s decision. Cittadino, supra.
The Commission has the authority to “hear and decide” disciplinary cases, which includes the authority |3to modify (reduce) as well as to reverse or affirm a penalty. La. Const, art. X, § 12; Branighan v. Department of Police, 362 So.2d 1221, 1223 (La.App. 4 Cir.1978). However, the authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Id. at 1222. Thus, in the instant case, unless the Commission determined that there was insufficient cause for the appointing authority to impose the fifteen day suspension, the penalty must stand.
The appointing authority is charged with the operation of his or her department and it is within his or her discretion to discipline an employee for sufficient cause. Joseph v. Department of Health, 389 So.2d 739, 741 (La.App. 4 Cir.1980); Branighan, supra. The Commission is not charged with such operation or such disciplining. Id. In James v. Sewerage and Water Board of New Orleans, 505 So.2d 119 (La.App. 4 Cir.1987), we considered a decision of the Commission which reversed a five day suspension of an employee and suggested a reprimand instead. In reversing the Commission and reinstating the suspension, we reaffirmed and reiterated the holdings in Joseph and Brani-ghan, stating:
It is not the job of the Commission to decide who should be disciplined how. The appointing authority is charged with the operation of his department. He is the one who must run the department, an obviously necessary part of which is dismissing or disciplining employees. While he may not do so without cause, he may, and indeed must, within the exercise of sound discretion, dismiss or discipline an employee for sufficient cause. The Commission is not charged with such operation or such disciplining.
Id. at 121.
In Chapman v. Department of Police, 97-1384 (La.App. 4 Cir. 1/28/98), 706 So.2d 656, we rejected the Commission’s reduction of a suspension from thirty days to ten days, holding that the Commission is not charged with the operation of the NOPD or disciplining its employees. We concluded that the Commission’s action was simply a substitution of its judgment for the Superintendent’s judgment. We found that the Superintendent had sufficient cause to impose the penalty and that the NOPD carried its burden of proof. The Commission’s action was an arbitrary and capricious | ^interference with the authority of the Superintendent to manage his department.
Similarly, in Palmer v. Department of Police, 97-1593 (La.App. 4 Cir. 1/28/98), 706 So.2d 658, we reversed the Commission’s reversal of the NOPD’s imposition of a two day suspension. In that case, the Commission substituted its judgment as to the appropriate sanction without an articulated basis for its action. We held the Commission acted arbitrarily and found legal cause for disciplinary action existed where the officer’s actions clearly impaired the efficient operation of the public service.
Recently, in Smith v. New Orleans Police Department, 00-1486 (La.App. 4 Cir. 4/11/01), 784 So.2d 806, we reversed the Commission’s reduction of a suspension from five days to two days for an officer’s failure to complete an investigation of a shoplifting incident by writing a police report and confiscating surveillance tapes that showed the alleged perpetrator fleeing the scene. We found there was ample evidence to show that the Superintendent acted reasonably and with sufficient legal cause in imposing a five day suspension under the circumstances of the case.
The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. Newman, supra. Indeed, • the Commission should give heightened regard to the appointing authorities that serve as special guardians of the public’s safety and operate as quasi-military institutions where strict discipline is imperative. [Emphasis supplied; footnote omitted; reproduced verbatim.]

I have been unable to locate any Louisiana jurisprudence where a civil service employee such Officer Lewis has been terminated either for the death of a dog in his care and custody or a single misdemean- or that does not involve a crime against a person, sexual abuse, or dishonesty.

My review of the record of this ease establishes clearly that Officer Lewis’ plea of guilty to the lesser offense of simple cruelty to animals in lieu of the | ..charged felony offense of aggravated cruelty to animals was nothing more than an Alford , plea. Substantial public interest in the criminal case was present due to media attention. Although no abuse of the Criminal District Court trial judge’s discretion is demonstrated, possible perceived “hostility” towards Officer Lewis by the trial judge may have induced him to enter a guilty plea. The trial judge refused to continue the trial or permit Officer Lewis to plead to the misdemeanor charge without waiver of La.C.Cr.P. art. 894 benefits.

The mandate to the Civil Service Commission is only to give “heightened” regard to the appointing authority in police discipline cases, not to blindly follow that which the appointing authority determines where the appointing authority is a quasi-military institution. Stevens, p. 8, 789 So.2d at 627.

In this case, Officer Lewis’ guilty plea will follow him for the rest of his career with the police department, let alone the rest of his work life. Any time he might testify in a case in the future, his guilty plea is subject to being addressed on cross-examination by a defendant. La. C.E. arts. 404, 607 et seq. But this must be weighed against Officer Lewis’ entire disciplinary record from the time he became a police officer on 28 September 1997 and the reasonable possibility that a reassignment to another position in the police department where contact with the courts is unlikely.

Accordingly, I concur in that part of the majority’s decision to reverse the discharge of Officer Lewis. The Commission abused its discretion under the totality of the facts developed during the course of the investigation of Officer Lewis. However, I do find that the appointing authority had a right to impose reasonable discipline in this case simply because a police officer, a person with permanent civil service status, who pleads guilty to a misdemeanor that is a lesser |fioffense than the felony for which the person is charge, does on some level impair the efficient operation of the appointing authority. Accordingly, I would reduce Officer Lewis’s discipline to a 90-day suspension without pay, or, alternatively, remand the matter to the Civil Service Commission to impose a more appropriate penalty than dismissal from service. I therefore respectfully concur in part and dissent in part.

      . The testimony established that the Algiers Animal Clinic was approximately two minutes away from Officer Lewis’ home.

      . K-9 vehicles are equipped with cooling systems that allow the air condition to run while the dog is in the vehicle. The system also has a heat sensor that activates a fan and rolls down the windows if the interior temperature of the vehicle reaches 87 degrees.

      . The switches in the rear canine compartment were also in the cold mode.

      . The investigation was conducted by Sergeant Jenerio Sanders of the Administrative Investigations Section of the Public Integrity Bureau.

      . The record indicates that his treating veterinarian sedated him for exams and treatment because of his personality. Also discussed where incidents where he would work himself up inside the vehicle when left by Officer Lewis.

      . Sergeant Sanders reduced the results of his investigation into a report dated June 24, 2009.

      . Officer Lewis was aware that the Metropolitan Crime Commission, the Humane Society, and SPCA had all taken an interest in his case.

      . La.C.Cr.P. article 894 provides for the possibility of having a misdemeanor conviction set aside and the prosecution dismissed.

      . There was a disciplinary hearing on October 27, 2010, which resulted in his termination on that same day.

      . I am mindful of the fact that Primo, the Belgian Malinois, was in Officer Lewis' care and custody 24-hours a day, seven days per week, and lived with Officer Lewis and his family. Certainly and implicitly some affection between Officer Lewis and Primo existed, and I believe that Officer Lewis was sincerely saddened by Primo’s death and suffered.

      . An Alford plea or “best interest” plea is derived from North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), in which the defendant pleads guilty while maintaining his innocence.


source: Caselaw Access Project

author: KEATY, Judge. AMY, J., GREMILLION, Judge,

license: Public Domain

text:
    Veronica GILES v. OAKDALE HEALTHCARE SYSTEMS, LLC, et al.
    No. 11-1197.
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2012.
    Daniel E. Broussard, Jr., Broussard, Halcomb & Vizzier, Alexandria, LA, for Plaintiff/Appellant, Veronica Giles.
    Eugene J. Sues, Sarah Spruill Couvillon, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants/Appellees, Rapides Healthcare System, LLC d/b/a Oakdale Community Hospital, Joanna M. Carpenter.
    Court composed of MARC T. AMY, J. DAVID PAINTER, JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| í Plaintiff, Veronica Giles, was terminated from employment at Wal-Mart for testing positive on a drug screen she took in connection with her promotion to assistant manager. Ultimately, Giles was reinstated as assistant manager at Wal-Mart, though she was unemployed for about six months. She filed suit against Joanna Carpenter, the phlebotomist who took the sample, and Oakdale Community Hospital, alleging that Carpenter’s failure to follow Oakdale’s internal policies for collecting drug test samples, in addition to her failure to follow Wal-Mart’s drug screen policy and Louisiana law, led to a false positive test result that resulted in her termination from Wal-Mart. Giles sought damages for loss of income, emotional distress and mental pain and suffering, mental anguish, anxiety, humiliation and embarrassment, loss of reputation, and penalty and taxes paid and loss of interest earned for early withdrawal of her 401K.

Oakdale and Carpenter filed a joint motion for summary judgment, urging that although Carpenter was admittedly negligent in obtaining the sample, Giles would be unable to prove that Carpenter’s negligence had anything to do with the positive drug test that resulted in the termination of Giles’ employment. After a hearing on the matter, the trial court granted defendants’ motion for summary judgment. Giles is now before us on appeal, asserting that the trial court erred in granting the motion for summary judgment, erred in finding that the handling of her specimen did not turn on the credibility of Carpenter, and erred in finding that the credibility of Carpenter was not a genuine issue of material fact in this case. After carefully reviewing the record, we reverse the trial court’s grant of summary judgment and remand the matter to the trial court for further proceedings.

Appellate courts review summary judgments de novo. Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634. In that review, we must determine whether “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.” La.Code Civ.P. art. 966(B).

The trial court granted defendants’ motion for summary judgment, finding that

[t]he only evidence as to when and how the first sample was sealed came from Ms. Carpenter. Ms. Giles did not dispute it. She said she left immediately after giving the sample. Ms. Carpenter said Ms. Giles was present when she sealed and marked the sample. So, really the only evidence as to what Ms. Carpenter did with the sample is from her. And it is undisputed. She marked and sealed the sample in front of Ms. Giles. The Court finds that Ms. Carpenter and the hospital had a duty to take the sample in such a manner that the integrity of the sample was maintained. The signing of the form does not necessarily affect the integrity of the sample. The marking and the sealing of the form — of the sample are the insurers of that. So, even though there was a breach in policy by having Ms. Giles sign the form before instead of after taking the sample, the Court does not find that this breach was a cause in fact or legal cause of the damages alleged by Ms. Giles. Since this is an essential element of the cause of action the Court grants the Motion for Summary Judgment.

“The trial court’s determinations with regard to the credibility of witnesses ... are factual issues.” Roy v. City of Lake Charles, 11-989, 11-990, p. 3 (La. App. 3 Cir. 12/7/11), 81 So.3d 53, 56. Further, “[c]ause-in-fact is a factual question to be determined by the factfinder.” Johnson v. Lull Enters., Inc., 92-18, p. 9 (La.App. 3 Cir. 10/11/95), 663 So.2d 403, 409, writ denied, 95-2754 (La.2/9/96), 667 So.2d 529. In reaching its conclusion, the trial court made factual findings. It determined that Carpenter’s version of the events was the true version, and it determined that Carpenter’s breach of duty was not in any way the cause of Giles’ termination.

The documents considered by the trial court raised questions of fact, which the trial court determined absent an evidentia-ry hearing. The trial court’s grant of | ^summary judgment was inappropriate. Accordingly, that judgment is reversed and the matter is remanded for further proceedings. Costs are assessed against the defendants/appellees.

REVERSED AND REMANDED.

AMY, J., dissents and assigns reasons.

GREMILLION, J., dissents and assigns written reasons.

AMY, J.,

dissenting.

Li would affirm the trial court’s judgment, finding that the plaintiff failed to offer proof that she will be able to establish that any breach of the standard of care owed by the defendants caused any of the damages alleged. Thus, summary judgment was appropriate pursuant to La. Code Civ.P. art. 966(C)(2).

GREMILLION, Judge,

dissents.

_JjIn this matter, the drug-testing specimen collector, Carpenter, admittedly failed to follow Oakdale’s policies for collecting samples. Plaintiff, Giles, an assistant manager for Wal-Mart, suffered adverse employment consequences because her sample tested positive for proscribed substances. Carpenter and Oakdale filed a motion for summary judgment in which they argued that the policy breach had nothing to do with Giles’s employment setbacks, because the violation of policy did not cause Giles’s sample to test positive for cocaine. In support of the motion, Carpenter testified by deposition that the specimen she placed in the bag that was sent for testing was Giles’s. Carpenter’s testimony was completely uncontradicted. Nonetheless, the majority reverses the trial court’s grant of summary judgment.

I respectfully dissent. Summary judgment procedure is intended “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2). While the burden of proof rests with the mover, if the mover will not bear the burden of proof regarding an issue at trial, all she has to do is point out that there is an absence of factual support for one or more essential elements of plaintiffs claim; after that, the plaintiff must come forth with factual support | ^sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial or summary judgment must be granted. La. Code Civ.P. art. 966(C)(2).

This is particularly the case when, as here, the material fact is undisputed. Giles came forward with no evidence to dispute Carpenter’s assertion that the urine sample she deposited in the bag that was sent to the testing lab was Giles’s. “[SJummary judgment is appropriate when all the relevant facts are marshaled before the court, the marshaled facts are undisputed, and the only issue is the ultimate conclusion to be drawn from those facts.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 29 (La.7/5/94), 639 So.2d 730, 752.

It is true that courts are not allowed to make credibility determinations in considering summary judgment motions, but the trial court made no such determination in this case. A credibility determination for summary judgment purposes can only arise when there is conflicting testimony regarding a material fact. See Hopkins v. Sovereign Fire & Cas. Ins. Co., 626 So.2d 880 (La.App. 3 Cir.1993), writ denied, 94-0154 (La.3/11/94), 634 So.2d 390 and 94-2958 (La.3/11/94), 634 So.2d 402. (“Weighing such conflicting evidence has no place in a hearing on a motion for summary judgment even when it appears from the record that the nonmoving party may experience difficulty in achieving ultimate success, as credibility determinations are best left to the trier of fact.” Id. at 886 (citations omitted)). There simply is no testimony or other evidence of any kind that even suggests that there was an error in the transmission of the urine sample to the testing lab. The trial court did not improperly determine that Carpenter’s testimony was credible. Rather, it properly determined that Carpenter’s testimony was unchallenged.

|aThe majority relies on language in Johnson v. Lull Enters., Inc., 92-18, p. 9 (La.App. 3 Cir. 10/11/95), 663 So.2d 403, 409, unit denied, 95-2754 (La.2/9/96), 667 So.2d 529, to the effect that cause-in-fact is a question for the trier of fact. It bears mentioning that Johnson involved the review on appeal of a jury verdict and has nothing to do with summary judgment. The quoted language does not foreclose the possibility of obtaining summary judgment on this issue. This court has, in fact, affirmed summary judgment on the issue of cause-in-fact when the facts were uncontested. See Nicholson v. Calcasieu Parish Police Jury, 96-314 (La.App. 3 Cir. 12/11/96), 685 So.2d 507. That is exactly the situation we have here.

I would affirm the trial court.


author: PAINTER, Judge.

text:
    STATE of Louisiana v. Jamey L. EVERETT.
    No. 11-1311.
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2012.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant-Appellant, Jamey L. Everett.
    David W. Burton, District Attorney, DeRidder, LA, for Appellee, State of Louisiana.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendant, Jamey L. Everett, appeals his conviction for distribution of hydroco-done based on failure to grant his motion to suppress certain evidence. For the following reasons, we affirm the conviction but remand the matter to the trial court with instructions to correct the sentencing minutes.

FACTS

Defendant sold ten hydrocodone tablets to a cooperating witness in the presence of an undercover police officer. He was charged, on November 9, 2010, with one count of distributing hydrocodone, one count of possessing hydrocodone with intent to distribute, one count of distributing carisoprodal, and one count of possessing alprazolam. The defense filed a motion to suppress evidence on February 16, 2011. Ten days after the hearing on the motion, the trial court denied the motion and issued written reasons.

After two days of jury selection for his trial, Defendant entered a plea agreement reserving the right to appeal the ruling on the motion to suppress. He pled no contest to distribution of hydrocodone, and the State dropped the remaining.charges as well as unrelated charges of unauthorized entry into an inhabited dwelling and aggravated assault. The State further noted for the record that it would not pursue child pornography charges which gave rise to the information that resulted in Defendant being investigated for drug related violations.

The trial court accepted the plea and sentenced Defendant to serve five years at hard labor with credit for time served and ordered him to pay court costs plus $800.00 for the costs of prosecution.

| .DISCUSSION

Errors Patent

This court reviews all appeals for errors patent on the face of the record. We find none. However, the minutes of sentencing are in need of correction.

The minutes state that Defendant must “pay cost of court and $800.00 for cost of prosecution.” The sentencing transcript contains no reference to the $300.00 sum. “[W]hen the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. Accordingly, the matter is remanded and the trial court is instructed to correct the sentencing minutes to delete the provision referring to the sum of $300.00.

Motion to Suppress

Defendant asserts that the trial court erred in failing to grant his motion to suppress evidence. He contends that an unlawful search of his phone was made and that all evidence seized as a result of that search should be suppressed. He argues that the information provided by Officer Reese Martin in the search warrant affidavit was stale, inaccurate, and failed to state probable cause, and that the warrant was signed by a judge who had previously represented him.

The proper standard of review for examining mixed questions of fact and law on a motion to suppress is abuse of discretion:

When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court’s ruling, unless the trial court’s conclusions are not supported by the |sevidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion.

State v. Bargeman, 98-617, p. 5 (La.App. 8 Cir. 10/28/98), 721 So.2d 964, 967, writ denied, 99-33 (La.5/28/99), 743 So.2d 658.

The defendant bears the burden of proving the inadmissibility of evidence seized with a warrant. La.Code Crim.P. art. 703(D).

1) Staleness

Defendant asserts' that the information in the warrant affidavit was stale because he was in jail and because his cell phone was in the custody of the jail property room at the time Tyree Rhodes, an associate of Defendant, told Officer Martin that Defendant sent him media texts of Defendant having sex with young boys and that Defendant often showed him sexually explicit or nude images of young boys on Defendant’s cell phone. Further, Defendant argues that the warrant affidavit made no indication of when the activity was supposed to have occurred. Defendant asserts that Mr. Rhodes did not provide the officer with a time frame for the alleged activity.

In State v. Friday, 10-2309, pp. 9-10 (La.App. 1 Cir. 6/17/11), 73 So.3d 913, 922 (citations omitted), a case in which the defendant entered a Crosby plea to 300 counts of child pornography and was convicted by jury of aggravated and attempted forcible rape of juvenile victims, the trial court found that the information was not stale, noting that:

[Tjhere is nothing revelatory about the notion that a collector of child pornography will maintain his collection for years. This idea is arguably part of the field of common knowledge. Courts over the years have consistently found that collectors of child pornography do not quickly dispose of their cache and, in fact, rarely if ever dispose of such material As such, even a substantial delay between the distribution of child pornography and the issuance of a search warrant does not render the underlying information stale. This is so because the possession |4of child pornography is a crime that is ongoing and continuing in nature.

In light of the finding in Friday, Mr. Rhodes’ information that Defendant frequently sent him media texts containing child pornography and that Defendant used his own cell phone to show Mr. Rhodes child pornography was not stale. Officer Martin had personal knowledge that Mr. Rhodes was a longtime close friend and confidante of Defendant. Moreover, Mr. Rhodes gave his statement on September 20, 2010; Officer Martin applied for and received a search warrant on September 21, 2010, and Officer Martin seized the cell phone on September 22, 2010. Therefore, Officer Martin promptly acted on the information Mr. Rhodes provided. Accordingly, Defendant’s assertion that the search warrant was based upon stale information is without merit.

2) Informant reliability

Defendant argues that the search warrant was invalid because it failed to show Mr. Rhodes’ reliability and because it failed to show that Officer Martin independently corroborated Mr. Rhodes’s information before filing the search warrant application. Defendant alleges that Officer Martin could not recall whether Mr. Rhodes was in jail at the time he provided the information leading to the search of Defendant’s phone. However, Officer Martin believed that Mr. Rhodes went to the police department and gave the information to officers there. Defendant points out that Mr. Rhodes was a convicted felon as well as a known methamphetamine user and seller. During that time, Mr. Rhodes was being investigated in connection with the burglary of Defendant’s home. Defendant was incarcerated for an aggravated assault charge arising from an incident when Defendant threw a |fibrick at Mr. Rhodes. Defendant asserts that, though Officer Martin testified that he informed the judge signing the warrant about the contentious relationship, the information was left out of the warrant affidavit.

Defendant urges that Officer Martin should not have believed Mr. Rhodes because of his contentious relationship with Defendant. Defendant points out that Mr. Rhodes was not a known confidential informant and that there was no information in the warrant affidavit showing Mr. Rhodes had a history of supplying reliable information to law enforcement. Defendant argues that Mr. Rhodes was a convicted felon with “an ax to grind.” Defendant asserts that because Mr. Rhodes was biased, the judge should have required the information to be corroborated before it issued a search warrant for Defendant’s phone. Defendant alleges that the search of his phone did not reveal any child pornography. However, it did result in Defendant being arrested on drug charges. Defendant insists that there was no probable cause upon which to issue a search warrant because the information in the search warrant application was not sufficiently reliable.

Unlike information provided by confidential informants, named witnesses are presumed to be credible:

While anyone who gives information to the police may be called an “informant,” a distinction may be drawn between an anonymous tipster and a citizen who witnesses or is the victim of criminal conduct and reports to police as a matter of civic duty. When the informant is an anonymous person, it is critical that there be some specific showing that he is a credible person and that his information is reliable. In contrast, citizen informant reports based on firsthand knowledge carry a high indicia of credibility. The citizen informer is a presumptively inherently credible source.

State v. Brown, 09-2456, pp. 6-7 (La.5/11/10), 35 So.3d 1069, 1073 (citations omitted).

| rfAs discussed in Brown, Mr. Rhodes was acting as a named citizen informant. Therefore, Mr. Rhodes’ information was presumed to be credible and required no independent verification of the details contained in his statement. Moreover, other than their personal and legal conflicts, Defendant introduced no evidence to dispute Mr. Rhode’s credibility.

As far as Officer Martin’s credibility was concerned, Defendant also failed to meet his burden of proof. Officer Martin stated that he believed Mr. Rhodes because he had personal knowledge of the close relationship which existed between Defendant and Mr. Rhode for the decade prior to their dispute and because law enforcement had already discovered child pornography on computers used by Defendant. Officer Martin further testified that law enforcement often benefits from schisms between parties when they are involved in criminal activity. Defendant offered no evidence that Officer Martin was not telling the truth.

Accordingly, Defendant’s allegation that the search warrant should have been suppressed because it failed to show Mr. Rhodes’ credibility is without merit.

3) Neutral and detached magistrate.

Defendant contends that the search warrant was invalid because it was not signed by a neutral and detached magistrate. Defendant asserts that Judge Martha O’Neal signed the search warrant in the instant case. Defendant adds that Judge O’Neal previously represented Defendant and his family in her capacity as an attorney. Defendant states that, in a prior criminal case, Judge O’Neal recused herself from presiding over Defendant’s case “based on that representation and information learned relating to mover during her office’s prior representation[.]” Defendant Rposits, therefore, that Judge O’Neal was not acting as a neutral and detached magistrate in the instant matter.

At the suppression hearing, Defendant introduced evidence showing that Judge O’Neal recused herself from presiding over a different criminal matter against Defendant because of information learned through her prior representation of Defendant. However, Defendant introduced no other evidence to support a finding that Judge O’Neal could not act as a neutral and detached magistrate. Defendant failed to introduce evidence concerning the nature of the prior representation, the allegations of the other criminal proceeding, or what information Judge O’Neal was privy to that would have prevented her from acting as a neutral and detached magistrate in the instant matter. Therefore, Defendant failed to meet his burden of proving that Judge O’Neal was not acting as a neutral and detached magistrate in signing the search warrant, and this assignment of error is without merit. La. Code Crim.P. art. 701(D).

4) Probable cause.

Defendant contends that no probable cause was set out in the warrant application because Officer Martin failed to corroborate Mr. Rhodes’ allegations; and because Mr. Rhodes did not support his allegations by providing law enforcement with copies of some of the text messages, failed to state a time frame for those messages, and did not testify at the suppression hearing; and because no child pornography was found on Defendant’s cell phone.

The first circuit discussed the factors pertinent for reviewing claims that a search warrant application failed to state probable cause, as follows:

| ^Article 1, § 5 of the Louisiana Constitution requires that a search warrant issue only upon an affidavit establishing probable cause to the satisfaction of an impartial magistrate. See also La.Code Crim. P. art. 162. Probable cause exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Johnson, 408 So.2d 1280, 1288 (La.1982). The facts establishing the existence of probable cause for the warrant must be contained within the four corners of the affidavit. State v. Duncan, 420 So.2d 1105, 1108 (La.1982); State v. Green, 2002-1022, pp. 6-7 (La.12/4/02), 881 So.2d 962, 968.
An issuing magistrate must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a “fair probability” that evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); State v. Byrd, 568 So.2d 554, 559 (La.1990). The process of determining probable cause for the issuance of a search warrant does not involve certainties or proof beyond a reasonable doubt, or even a pri-ma facie showing, but rather involves probabilities of human behavior, as understood by persons trained in law enforcement and as based on the totality of circumstances. The process simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system. See State v. Rodrigue, 437 So.2d 830, 832-33 (La.1983).
The review of a magistrate’s determination of probable cause prior to issuing a warrant is entitled to significant deference by reviewing courts. “[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” Gates, 462 U.S. at 236, 103 S.Ct. at 2331. Further, because of “the preference to be accorded to warrants,” marginal cases should be resolved in favor of a finding that the issuing magistrate’s judgment was reasonable. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

Friday, 73 So.3d at 920.

Defendant does not actually allege that the contents of the warrant affidavit failed to establish probable cause. Instead, he reiterates his arguments that the information contained therein was stale and that the |flnamed informant was unreliable because Officer Martin failed to treat him as a confidential informant. As previously discussed, those arguments are without merit.

Defendant’s complaint that Mr. Rhodes did not testify at the suppression hearing is unfounded since Defendant bore the burden of proving the invalidity of the search warrant. Defendant should have subpoenaed Mr. Rhodes to testify if he thought that Mr. Rhodes’ testimony was relevant.

Additionally, Defendant’s claim that the warrant failed to establish probable cause because there was no child pornography actually recovered from his cell phone is without merit. The test for probable cause only required Officer Martin, as the affiant, to establish facts that supported a reasonable belief that child pornography could be found on Defendant’s phone. A search warrant application is not required to guarantee that evidence will be found.

Accordingly, Defendant’s contention that the search warrant failed to establish probable cause is without merit.

5) Good Faith Exception

Defendant urges this court to find that the good faith exception established in U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply in the instant case. Defendant argues that suppression is still appropriate because the affidavit failed to establish probable cause, in that Officer Martin concealed the information regarding Defendant’s contentious relationship with Mr. Rhodes and because Judge O’Neal abandoned her role as a neutral and detached magistrate by signing the search warrant.

ImHowever, there is no need to address Defendant’s arguments about the good faith exception because Defendant’s other claims are without merit.

CONCLUSION

Defendant’s conviction is affirmed. We remand the matter to the trial court with instructions to correct the sentencing minutes to delete the provision referencing the sum of $300.00.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.


author: GREMILLION, Judge. GENOVESE, J.,

text:
    Norbert BERARD, Sr. v. HOME STATE COUNTY MUTUAL INS. CO.
    No. 11-1372.
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2012.
    Richard Riley Montgomery, Briney, Foret & Corry, Lafayette, LA, for Defendant/Appellee, Home State County Mutual Ins. Co.
    Harry Karl Burdette, The Glenn Ar-mentor Law Corp., Lafayette, LA, for Plaintiff/Appellant, Norbert Berard, Sr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and BILLY H. EZELL, J. DAVID PAINTER, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| ,We are called upon to determine whether the trial court properly granted summary judgment in favor of Home State County Mutual Insurance Company, dismissing the demands of Norbert Berard, Sr. We conclude that it was not, for the reasons that follow.

FACTS

On September 11, 2008, Berard was allegedly south-bound on Louisiana Highway 839 in Lafayette Parish. So was Julian Palma, who was driving a pickup truck owned by Rolando Mata. Palma continued operating Mata’s truck in a south-bound direction, even after his path was interrupted by the rear-end of a vehicle driven by Joshua C. Reed. Reed’s vehicle struck that driven by Shelly A. Reed, which then struck Berard’s vehicle. As a result of the accident, Berard instituted the present litigation in May 2010 to recover for injuries he allegedly sustained. He sued Mata, Palma, their alleged liability insurer, Home State County, and his uninsured/un-derinsured motorist carrier, Progressive Security Insurance Company.

Home State County answered and denied coverage for Palma, who it maintains is not insured because he is not a resident relative of the named insured, Mata, and was not given permission to drive the vehicle by Mata. Berard attempted several times to serve Palma and Mata, including sending process servers into Mexico for that purpose. All attempts to serve them failed.

In September 2010, Home State County filed a motion for summary judgment in which it asserted that Palma was not an omnibus insured under its policy because Palma was not a licensed driver residing in Mata’s home and did not have Mata’s permission to drive the truck. In support of its motion, Home State County attached a certified copy of Mata’s policy. The trial court heard the | {.matter on May 31, 2011. The trial court ruled that Berard had until June 10, 2011, to produce evidence showing that Palma had permission to drive the truck. When Berard failed to produce such evidence, the trial court granted Home State County’s motion. Berard appeals.

ASSIGNMENT OF ERROR

Berard assigns two errors of the trial court:

I. The trial court committed manifest error and was clearly wrong in finding that Home State County Mutual Insurance Company was not liable for Mr. Norbert Berard Sr.’s property damage and personal injuries.
II. The trial court committed manifest error and was clearly wrong in finding that Julian Palma did not have express or implied permission to operate the vehicle at the time of the accident.

ANALYSIS

Courts of appeal review summary judgments de novo applying the same analysis as the trial court. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). Summary judgment is governed by La.Code Civ.P. arts. 966 and 967. Article 966 provides that while the burden of proving entitlement to summary judgment rests with the mover, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden does not require him to negate all essential elements of the adverse party’s claim, action or defense, but rather to point out 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. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

| oHome State County supported its motion for summary judgment with a certified copy of the policy that demonstrates that an insured is defined as a person who possesses a valid driver’s license and is either the named insured, any family member or resident of the named insured household who is listed in the declarations page, or a person operating the vehicle with the named insured’s express or implied permission. Because the burden of proving that Palma was driving Mata’s truck with Mata’s permission rested with Berard, Home State County argued that the burden on summary judgment was Berard’s to produce evidence that such permission had been granted. Because Berard could not produce such evidence, the trial court granted Home State County’s motion.

This argument ignores the express wording of article 966(C)(2), which provides, “The burden of proof remains with the movant.” Because Home State County would not bear the burden of proof at trial, though, it was not required to “negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense.” Id. How does one point out that there is an absence of factual support for one or more elements of the adverse party’s claim? That question is answered by La.Code Civ. P. art. 967.

Article 967(A) provides that supporting affidavits shall be made on personal knowledge, shall set forth facts admissible into evidence, and shall show that the affiant is competent to testify at trial. Section (B) provides, “When a motion for summary judgment is made and supported as provided above [in Section (A) ], an adverse party may not rest on the mere allegations and denials of his pleadings, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial.” (Emphasis added).

|4A party cannot simply file a motion for summary judgment that lacks proper support under Section (A) and rely on the fact that the opposing party will bear the burden of proof at trial. The threshold issue to consider on summary judgment is whether the moving party carried its burden of proof. Only then does the burden of production shift to the party opposing the motion. It is true that Berard will bear the burden of proving at trial that Palma was a permissive user. Manzella v. Doe, 94-2854 (La.12/8/95), 664 So.2d 398. But, Home State County had the burden on summary judgment to affirmatively show through affidavits, depositions, or other admissible evidence that a lack of factual support exists for the proposition that Palma was not a permissive user. All it succeeded in showing is that Palma was not the named insured.

We recognize the quandary this analysis presents. Because the whereabouts of Palma and Mata have proven difficult to establish, the parties find themselves in a holding pattern. However, expedience and judicial economy do not supplant the requirements a party must meet in order to obtain summary judgment. Such a motion must be properly supported with supporting evidence before it may be granted.

CONCLUSION

Motions for summary judgment must be properly supported by admissible evidence, regardless of who will bear the burden of proof at trial. In the present case, Home State County merely alleged that Berard cannot produce evidence that Palma was not a permissive user of Mata’s vehicle. And while that allegation may indeed prove true, it does not serve to shift the burden of production to Berard. The judgment of the trial court is reversed. All costs of these proceedings are taxed to defendant/appellant, Home State County Mutual Insurance Company.

REVERSED.

GENOVESE, J., dissents and assigns written reasons.

EZELL, J., dissents for the reasons assigned by GENOVESE, J.

GENOVESE, J.,

dissents, and assigns the following reasons.

hi disagree with this court’s opinion reversing the trial court’s grant of summary judgment in favor of the insurer. In my view, the majority completely misconstrues the intent, application, and purpose of summary judgment.

In this case, the tortfeasor, Mr. Palma, rear-ended a vehicle which caused a collision involving several vehicles, one of which struck Plaintiffs vehicle and injured him. At the time of the accident, Mr. Palma was operating a vehicle owned by a Mr. Mata and insured by Home State County Mutual Insurance Company (Home State). Plaintiff sued Mr. Palma, Mr. Mata, and Home State. Defendant, Home State, then filed a Motion for Summary Judgment which was granted by the trial court, and Plaintiff appealed.

The only evidence before the trial court for consideration at the hearing on Defendant’s Motion for Summary Judgment was the Home State liability policy. Plaintiff offered no evidence (no affidavit, deposition, or otherwise) that the insured, Mr. Mata, gave either express of implied permission to the driver, Mr. Palma.

Though, under La.Code Civ.P. art. 966, Defendant has the initial burden of proof in this summary judgment proceeding, that burden shifted to the Plaintiff when the Mata policy did not list the driver (Mr. Palma) as a named insured. At |2that point, Plaintiff had the burden of proving that Mr. Palma was either an omnibus insured or a permissive user according to the policy. This, Plaintiff did not do.

Thus, in order for there to be coverage available to Plaintiff pursuant to the Home State policy, it is the Plaintiff (not the Defendant) that must prove all essential elements of his case; particularly, he must prove that Mr. Palma was a permissive driver or an omnibus insured. Because Plaintiff failed to prove this essential element of his case, i.e., that Mr. Palma was a permissive driver or an omnibus insured, there is no question of material fact, and Plaintiff loses.

This case hinges on the “burden of proof.” It is not the insurance policy which shifts the burden of proof; it is the law (jurisprudence) that places the burden of proving “permissive user” status on the person claiming that status — and that would be the plaintiff. The jurisprudence is clear and unequivocal. The plaintiff has the burden of proving the express or implied permission of the insured in order to obtain coverage under the omnibus clause of an automobile liability policy. La.R.S. 32:900(B)(2); Arceneaux v. Norman, 05-1536 (La.App. 3 Cir.2006), 931 So.2d 484. All the defendant in this case had to do was 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.” La. Code Civ.P. art. 966(C)(2) (emphasis added). There is no factual dispute in this case that Home State, the defendant insurer, “pointed out” to the court that the tortfeasor was neither a permissive driver, nor a family member or resident of the household.

Plaintiff produced no evidence that Mr. Palma was driving the vehicle insured by Home State with the express or implied permission of Mr. Mata or that Mr. Palma was a family member or resident of Mr. Mata’s household. Therefore, | ^Plaintiff will not be able to prove this essential element of his case and, thus, this summary judgment must be sustained.

Plaintiffs only saving grace would have been to prove that he was not afforded adequate time for discovery. Well, that argument fails since Plaintiff was given over a year and four continuances by the trial court in order to locate Mr. Palma or Mr. Mata or someone in order to get an affidavit or deposition to establish that Mr. Palma was a permissive user or an omnibus insured. This case cannot be left open forever. The law only requires that a reasonable amount of time be given, and the trial court allowed more than a reasonable amount of time for adequate discovery.

Simply put, Plaintiff did not prove an essential element of his case; hence, there is no question of material fact, and Defendant is entitled to summary judgment as a matter of law. I find the trial court to be 100% correct; hence, I respectfully dissent from the majority and would affirm the trial court’s grant of summary judgment in favor of Defendant’s insurer.