text:
    Judith C. MERWIN v. Douglas G. and Elizabeth Ann Benzer SPEARS and Farmers Insurance Exchange.
    No. 2012-CC-0946.
    Supreme Court of Louisiana.
    June 22, 2012.
   PER CURIAM.

|, Plaintiffs filed a claim against their homeowners’ insurer, Farmers Insurance Exchange (“Farmers”), based on a water leak in their bathroom. After investigation, Farmers determined the damage was due to a slow, long-term leak in the wall of the master bedroom, and was not covered under its policy. After Farmers denied the claim, plaintiffs hired their own expert. Farmers’ investigator met with plaintiffs’ expert, at which time Farmers maintained its position that the damage was not covered under its policy.

Plaintiffs then filed suit against Farmers, and sought penalties on the ground Farmers denied the claim in bad faith. After suit was filed, Farmers conducted a detailed examination to determine if the leak could be replicated. Based on this examination, Farmers found that some of plaintiffs’ damages were caused by a sudden and accidental water leak located one-half inch above the slab behind the master tub. Accordingly, Farmers tendered unconditional payment of the claim to plaintiffs within thirty days of receiving the experts’ reports.

Plaintiffs then filed a motion for summary judgment on their bad faith claim. The district court granted summary judgment, finding Farmers “was and is in bad faith concerning the manner in which it has adjusted the plaintiffs claim made under the insurance policy and by way of this civil action.” Farmers sought supervisory review, which was denied by the court of appeal with one judge dissenting. This application followed.

12With the benefit of hindsight, it is apparent the Farmers’ policy provided coverage for at least part of plaintiffs’ damages. However, for purposes of plaintiffs’ penalty claim, the issue is whether Farmers’ failure to make timely payment was arbitrary, capricious, or without probable cause. La. R.S. 22:1892. We conclude there are genuine issues of material fact as to whether Farmers’ initial decision to deny the claim, based on its investigation and consultation with plaintiffs’ expert, was reasonable under the totality of the facts. Therefore, the district court erred in granting summary judgment on this issue. See Penalber v. Blount, 550 So.2d 577, 583 (La.1989) (holding summary judgment is “rarely appropriate for a determination based on subjective facts such as intent, motive, malice, knowledge or good faith”).

Accordingly, the writ is granted. The judgment of the district court is reversed, and the case is remanded to the district court for further proceedings.

KNOLL, J., dissents and would deny.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Peter CASERTA, Jr. v. WAL-MART STORES, INC. and ABC Insurance Company.
    No. 2012-CC-0853.
    Supreme Court of Louisiana.
    June 22, 2012.
   PER CURIAM.

I,Plaintiff brought a truck to Wal-Mart Tire & Lube Express (“Wal-Mart”) to have new tires mounted on the vehicle. After attempts to remove the lug nut on one of the tires proved unsuccessful, the Wal-Mart technician agreed to take plaintiff to the automotive service area to show him the problem.' The technician gave plaintiff a pair of safety goggles, and at plaintiffs request, agreed to allow plaintiff to use the lug wrench to attempt to loosen the nut. As plaintiff attempted to remove the lug nut, it snapped, causing plaintiff to suffer injury.

Subsequently, plaintiff filed the instant suit against Wal-Mart and its insurer. Defendants moved for summary judgment, arguing in part that Wal-Mart was not responsible for plaintiffs own negligence. The district court denied defendants’ motion, and the court of appeal denied defendants’ application for supervisory writs. This application followed.

If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. Eisenhardt v. Snook, 08-1287 (La.3/17/09), 8 So.3d 541; Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La.12/2/08), 995 So.2d 1184. In the instant case, plaintiff testified he is a machinist who regularly uses a lug wrench, and typically services his own truck. He admitted he was using his body weight to put pressure on the lug in an attempt to turn it. ^Further, plaintiff conceded the wrench was not defective, and did not break. Based on these undisputed facts, we believe any risk from attempting to remove the frozen lug nut should have been obvious to plaintiff, and could have been avoided through the use of ordinary care. See Pryor v. Iberia Parish School Board, 10-1683 (La.3/15/11), 60 So.3d 594 (holding “[t]he evidence establishes plaintiff was aware of this open and obvious risk” and explaining “[s]he could have easily avoided any risk by using additional care ... ”). Therefore, defendants owe no duty to plaintiff.

Accordingly, the writ is granted. The judgment of the district court is reversed, and summary judgment is granted in favor of defendants.


text:
    In re Gregory Paul HARDY.
    No. 2012-B-1164.
    Supreme Court of Louisiana.
    June 22, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

LThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent engaged in professional misconduct, including his failure to refund unearned fees. Respondent failed to cooperate with the ODC in its investigation. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Gregory Paul Hardy, Louisiana Bar Roll number 22414, be suspended from the practice of law for a period of eighteen months. Prior to filing an application for reinstatement following his suspension, respondent shall comply with the conditions set forth in the Petition for Consent Discipline.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Howard Lucas MARCELLO.
    No. 2012-B-1152.
    Supreme Court of Louisiana.
    June 22, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hln February 2007, and again in May 2007, respondent, Howard L. Marcello, was arrested and charged with DWI. Respondent subsequently pleaded no contest to DWI and second-offense DWI. On August 7, 2007, respondent executed a five-year recovery agreement with the Lawyers Assistance Program (“LAP”).

Thereafter, the Office of Disciplinary Counsel (“ODC”) filed formal charges against respondent arising out of his convictions. Prior to a hearing in the matter, respondent and the ODC filed a joint petition for consent discipline in this court, proposing that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to a five-year period of probation to coincide with his LAP agreement. We accepted the petition for consent discipline on October 9, 2009. In re: Marcello, 09-1945 (La.10/9/09), 18 So.3d 1271.

On May 23, 2012, respondent and the ODC filed a “Joint Motion to Extend Probation.” In the joint motion, the parties represent that on November 7, 2011, LAP Director Buddy Stockwell notified the ODC that respondent had suffered a relapse in his recovery from chemical dependency and that he was in violation of his LAP contract. Following his relapse, respondent immediately admitted himself to a ninety-day inpatient treatment program at Bradford Health Services in Warrior, Alabama. After he was released from Bradford, respondent executed a new recovery agreement with LAP on February 23, 2012. By letter dated March | ⅞20, 2012, Mr. Stockwell submitted an updated report to the ODC, noting that respondent had fully complied with the terms of his recovery agreement since his release from Bradford.

Based on these circumstances, the parties urge the court to extend respondent’s probation for up to five years, to coincide with his February 23, 2012 LAP agreement. We agree that the requested extension is appropriate.

DECREE

Considering the Joint Motion to Extend Probation filed by respondent and the ODC, it is ordered that the five-year period of probation imposed against respondent in In re: Marcello, 09-1945 (La.10/9/09), 18 So.3d 1271, be extended for a five-year period which coincides with respondent’s February 23, 2012 contract with the Lawyers Assistance Program.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Stacey L. THOMAS.
    No. 2012-B-1129.
    Supreme Court of Louisiana.
    June 22, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_JjThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent mishandled a real estate closing. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Stacey L. Thomas, Louisiana Bar Roll number 27892, be suspended from the practice of law for six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of unsupervised probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


text:
    STATE ex rel. Todd BENN v. STATE of Louisiana.
    No. 2011-KH-2418.
    Supreme Court of Louisiana.
    June 22, 2012.
   PER CURIAM.

11Writ granted; relief denied. Established jurisprudence of this Court grants district judges the discretion to allow or to refuse amendment of timely filed but not yet ruled-on applications for post-conviction relief. See, e.g., State ex rel. Foy v. Whitley, 92-1281 (La.10/6/95), 661 So.2d 455. Thus, to the extent that the trial judge exercised that discretion to allow the supplemental filing, the court of appeal erred in finding that the application is untimely under La.C.Cr.P. art. 930.8 and State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

Nonetheless, relator’s underlying claims lack merit. Relator shows no error in the district court’s conclusion that the allegedly withheld physical evidence was cumulative to the testimony of the state’s forensic expert and thus shows no violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See United States v. Zuazo, 243 F.3d 428, 431 (8th Cir.2001) (no Brady violation when prosecution “does not disclose a potential source of evidence but the evidence available from that source is cumulative of evidence already available to the defendant....”); United States v. Quintanilla, 25 F.3d 694, 699 (8th Cir.1994)2 (no Brady violation when prosecution does not disclose some cumulative evidence, but “substantial” other evidence on same point does reach jury).

In addition, relator fails to carry his burden of proof post-conviction of showing that counsel erred under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by this Court in State v. Washington, 491 So.2d 1337, 1339 (La.1986). See La.C.Cr.P. art. 930.2.

Accordingly, relator presents no grounds for relief.


text:
    STATE ex rel. Raymond McKEY v. STATE of Louisiana.
    No. 2011-KH-2002.
    Supreme Court of Louisiana.
    May 18, 2012.
   In re McKey, Raymond; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 390-550; to the Court of Appeal, Fourth Circuit, No. 2011-K-1009.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    Maria HOLMES v. PACARINI USA, INC., Tyrone “Gleck” Soniat, Vaughn Gay, and Jerry Johns.
    No. 2012-C-0781.
    Supreme Court of Louisiana.
    May 25, 2012.
   In re Pacarini USA Inc.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 2006-4183; to the Court of Appeal, Fourth Circuit, No. 2011-CA-1033.

Denied.


text:
    Ellis BOURQUE, Sr. et al. v. PETER KIEWIT SON’S COMPANY, et al.
    No. 2012-CC-1232.
    Supreme Court of Louisiana.
    June 3, 2012.
   In re Bourque Sr., Ellis et al.; Judice, Marianne; — Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. E, No. 45,051; to the Court of Appeal, Fifth Circuit, No. 12-C-463.

Stay denied; writ denied.

JOHNSON and KNOLL, JJ„ would grant plaintiffs’ request for stay and writ.


text:
    Ellis BOURQUE, Sr. et al. v. PETER KIEWIT SON’S COMPANY, et al.
    No. 2012-CC-1234.
    Supreme Court of Louisiana.
    June 4, 2012.
   In re Fischer, Wesley; Swisher, Michael; — Plaintifffs); Applying For Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. E, No. 45,051; to the Court of Appeal, Fifth Circuit, No. 12-C-462.

Denied.

JOHNSON and KNOLL, JJ., would grant.


text:
    In re Whitney H. GERMANY.
    No. 2012-OB-1200.
    Supreme Court of Louisiana.
    June 13, 2012.
   In re Germany, Whitney H.; — Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Within fifteen days of notification that she has satisfactorily passed this examination, petitioner may file a brief with this court, supported by appropriate documentary evidence, explaining the details of the delinquent financial matters.


text:
    In re Ramez F. SHAMIEH.
    No. 2012-OB-1183.
    Supreme Court of Louisiana.
    June 13, 2012.
   In re Shamieh, Ramez F.; — Plaintiff; Applying For Permission to Take Bar Examination.

Denied. See Supreme Court Rule XVII, § 4(C).


text:
    In re Sean SANDERSON.
    No. 2012-OB-1206.
    Supreme Court of Louisiana.
    June 13, 2012.
   In re Sanderson, Sean; — Plaintiff; Applying For Permission to Take Bar Examination.

Denied. See Supreme Court Rule XVII, § 4(c).


text:
    STATE of Louisiana v. Sharon WILLIS.
    No. 2012-KK-1240.
    Supreme Court of Louisiana.
    June 13, 2012.
   In re Willis, Sharon; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. C, No. 2008-CR-48574; to the Court of Appeal, Third Circuit, No. KW 12-00250.

Denied.


text:
    STATE of Louisiana v. Delancy HARRIS.
    No. 2012-KK-1340.
    Supreme Court of Louisiana.
    June 14, 2012.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 509-720; to the Court of Appeal, Fourth Circuit, No. 2012-K-0782.

Stay denied. Writ denied.


text:
    Jane DOE v. SOUTHERN GYMS, L.L.C., et al.
    Nos. 2012-CC-448, 2012-CC-449, 2012-CC-455.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Jane Doe; — Plaintiff; Applying for Rehearing of this Court’s Order dated May 4, 2012; to the Court of Appeal, Third Circuit No. CW-11-01169; Parish of Evangeline; 13th Judicial District Court Div. B, No. 71767.

Rehearing denied.


text:
    Richard GUNTER, et ux. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 2012-C-562.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Richard Gunter and Betty Gunter; — Plaintiffs; Applying for Rehearing of this Court’s Order dated May 4, 2012; to the Court of Appeal, Second Circuit No. 46,796-CA; Parish of Bossier; 26th Judicial District Court Div. B, No. 130277.

Rehearing denied.

KNOLL, J., would grant rehearing.


text:
    STATE ex rel. Mickell A. CALVERT v. STATE of Louisiana.
    No. 2010-KH-0107.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Calvert, Mickell A.; — Plaintiff; Applying for Reconsideration of this Court’s action dated January 7, 2011, and from Parish of Washington, 22nd Judicial District Court Div. A, No. 05-CR10-92582; to the Court of Appeal, First Circuit, No. 2009 KW 1486.

Reconsideration denied.


text:
    Geneva PITCHER v. DEPARTMENT OF SOCIAL SERVICES OFFICE OF COMMUNITY SERVICES.
    No. 2012-C-0594.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Pitcher, Geneva; — Plaintiff; Applying for Reconsideration of this Court’s action dated April 20, 2012; State Civil Service Commission, No. S-16750; to the Court of Appeal, First Circuit, No. 2011 CA 1168.

Not considered. See Louisiana Supreme Court Rule DC, Section 6.


text:
    STATE of Louisiana v. Delvin WIGGINS.
    No. 2012-KK-0945.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Wiggins, Delvin; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. E, No. 10583; to the Court of Appeal, First Circuit, No. 2011 KW 2352.

Not considered. Not timely filed.


text:
    In re Layne C. HILTON.
    No. 2012-OB-1045.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Hilton, Layne C.; — Plaintiff; Applying For Petition for Appointment of a Commissioner.

Not considered; not timely filed. See Supreme Court Rule XVII, § 9(B).


text:
    STATE ex rel. Billy Joe PATTON v. STATE of Louisiana.
    No. 2011-KH-0395.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Patton, Billy Joe; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. A, No. 23719; to the Court of Appeal, First Circuit, No. 2010 KW 1980.

Denied.


text:
    STATE ex rel. Billy Joe PATTON v. STATE of Louisiana.
    No. 2011-KO-1831.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Patton, Billy Joe; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 2Srd Judicial District Court Div. A, No. 28719; to the Court of Appeal, First Circuit, No. 2010 KA 1841.

Denied.


text:
    STATE ex rel. Calvin Lee CRADDOCK v. STATE of Louisiana.
    No. 2011-KH-2172.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Craddock, Calvin Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 397650; to the Court of Appeal, First Circuit, No. 2011 KW 1502.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Tyrone ALLEN v. STATE of Louisiana.
    No. 2011-KH-2184.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Allen, Tyrone; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 92-5998; to the Court of Appeal, Fifth Circuit, No. 11-WR-121.

Denied.


text:
    STATE ex rel. Ashley POSEY v. STATE of Louisiana.
    No. 2011-KH-2209.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Posey, Ashley; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. F, No. 19709; to the Court of Appeal, First Circuit, No. 2011 KW 1382.

Denied.


text:
    STATE ex rel. Beauregard WATTIGNEY. v. STATE of Louisiana.
    No. 2011-KH-2214.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Wattigney, Beauregard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, Nos. 98-7344, 98-7345; to the Court of Appeal, Fifth Circuit, No. 11-KH-806.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Kenneth JOHNSON v. STATE of Louisiana.
    No. 2011-KH-2291.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Johnson, Kenneth; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, Nos. 356-749, 354-849; to the Court of Appeal, Fourth Circuit, No. 2011-K-1200.

Denied.


text:
    STATE ex rel. Patrick BOLIAN v. STATE of Louisiana.
    No. 2011-KH-2292.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Bolian, Patrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 279748; to the Court of Appeal, First Circuit, No. 2011 KW 1377.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

WEIMER, J., recused.


text:
    Jonas WILLIAMS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Louisiana Board of Parole, Elayn Hunt Correctional Center, et al.
    No. 2011-CI-2296.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Williams, Jonas; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 595260; to the Court of Appeal, First Circuit, No. 2011 CA 0293.

Denied.


text:
    STATE ex rel. Orlando GRIFFIN v. STATE of Louisiana.
    No. 2011-KH-2355.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Griffin, Orlando; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 060,317; to the Court of Appeal, First Circuit, No. 2011 KW 0880.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Milton YOUNG v. STATE of Louisiana.
    No. 2011-KH-2356.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Young, Milton; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 422-051; to the Court of Appeal, Fourth Circuit, No. 2011-K-1309.

Denied.


text:
    STATE ex rel. Ronnie HAMMOND v. STATE of Louisiana.
    No. 2011-KH-2357.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Hammond, Ronnie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. A, No. 22835; to the Court of Appeal, First Circuit, No. 2011 KA 0378.

Denied.


text:
    Eric HAYES v. Warden Jerry GOODWIN, James M. LeBlanc Secretary, Col. Tolliver.
    No. 2011-CI-2370.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Hayes, Eric; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 583,150; to the Court of Appeal, First Circuit, No. 2011 CA 0310.

Denied.


text:
    STATE ex rel. Robert LAIR v. STATE of Louisiana.
    No. 2011-KH-2373.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Lair, Robert; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 229,955; to the Court of Appeal, Third Circuit, No. CW 10-00526.

Denied.


text:
    Michael SHOEMAKER v. James LeBLANC, Secretary, Department of Public Safety and Corrections; Burl Cain, Warden, Louisiana State Penitentiary; Gary Aymond; and Preston Bordelon.
    No. 2011-CI-2390.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Shoemaker, Michael; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 564,534; to the Court of Appeal, First Circuit, No. 2011 CA 0210.

Denied.


text:
    STATE ex rel. Anthony J. ROBERTS v. STATE of Louisiana.
    No. 2011-KH-2393.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Roberts, Anthony J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 96-5196; to the Court of Appeal, Fifth Circuit, No. 08-WR-1108.

Denied.


text:
    STATE ex rel. James MITCHELL v. STATE of Louisiana.
    No. 2011-KH-2394.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Mitchell, James; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 5, No. 271116; to the Court of Appeal, Second Circuit, No. 46932-KH.

Denied.


text:
    STATE ex rel. Lucious GORDON v. STATE of Louisiana.
    No. 2011-KH-2414.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Gordon, Lucious; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 394-265; to the Court of Appeal, Fourth Circuit, No. 2011-K-1306.

Denied.


text:
    STATE ex rel. Anthony HOLLIDAY v. STATE of Louisiana.
    No. 2011-KH-2416.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Holliday, Anthony; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 12-86-0363; to the Court of Appeal,' First Circuit, No. 2011 KW 1105.

Denied.


text:
    STATE ex rel. Tony MOSELY v. STATE of Louisiana.
    No. 2011-KH-2419.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Mosely, Tony; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 426701; to the Court of Appeal, First Circuit, No. 2011 KW 1333.

Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; see also State ex rel. Hall v. State, 99-0326 (La.9/24/99), 871 So.2d 1071. Cf. La. C.Cr.P. art. 980.4(D).


text:
    STATE ex rel. Clinton H. FORREST v. STATE of Louisiana.
    No. 2011-KH-2422.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Forrest, Clinton H.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 94-918; to the Court of Appeal, Fifth Circuit, No. 09-WR-567.

Denied.


text:
    STATE ex rel. Terrance L. JOHNSON v. STATE of Louisiana.
    No. 2011-KH-2441.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Johnson, Terrance L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 142,760; to the Court of Appeal, Second Circuit, No. 46,-980-KH.

Denied. The result is correct.


text:
    Timothy Hugh QUEEN v. O.S. NUGENT, Assistant Warden.
    No. 2011-CI-2447.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Queen, Timothy Hugh; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 2010-1445; to the Court of Appeal, Third Circuit, No. 11-257.

Denied.


text:
    STATE ex rel. Charles BURNS v. STATE of Louisiana.
    No. 2011-KH-2451.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Burns, Charles; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 262422; to the Court of Appeal, Second Circuit, No. 46,-839-KH.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Morian Lavelle SPIVEY v. STATE of Louisiana.
    No. 2011-KH-2498.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Spivey, Morían Lavelle; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. B, No. 48,066; to the Court of Appeal, Second Circuit, No. 46,-942-KH.

Denied.


text:
    STATE ex rel. Paul GILLAN v. STATE of Louisiana.
    No. 2011-KH-2499.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Gillan, Paul; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 418-302; to the Court of Appeal, Fourth Circuit, Nos. 2011-K-0622, 2011-K-0911.

Denied.


text:
    STATE ex rel. Ray BINGHAM v. STATE of Louisiana.
    No. 2011-KH-2500.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Bingham, Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Franklin, 5th Judicial District Court Div. A, No. 2004F-637; to the Court of Appeal, Second Circuit, No. 46,-939-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Jerry CLABORN v. STATE of Louisiana.
    No. 2011-KH-2501.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Claborn, Jerry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 00-5861; to the Court of Appeal, Fifth Circuit, No. 11-KH-811.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Louis MITCHELL v. STATE of Louisiana.
    No. 2011-KH-2503.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Mitchell, Louis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 09-WCR-178.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Joseph RICHARDSON v. STATE of Louisiana.
    No. 2011-KH-2507.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Richardson, Joseph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. M, No. A1771589; to the Court of Appeal, Fourth Circuit, No. 2011-K-1251.

Denied.


text:
    STATE ex rel. Jerome MILLER v. STATE of Louisiana.
    No. 2011-KH-2527.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Miller, Jerome; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. D, Nos. 390505, 424947; to the Court of Appeal, First Circuit, No. 2011 KW 1587.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Alfred STEWART v. STATE of Louisiana.
    No. 2011-KH-2536.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Stewart, Alfred; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 401-184; to the Court of Appeal, Fourth Circuit, No. 2011-K-1426.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030.


text:
    STATE of Louisiana v. Brandi BROWN.
    No. 2012-KP-0154.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Brown, Brandi; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. E, No. 10190; to the Court of Appeal, First Circuit, No. 2011 KW 2068.

Denied.


text:
    STATE of Louisiana v. Darren ROBINSON.
    No. 2012-K-0279.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Robinson, Darren; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 09-4314; to the Court of Appeal, Fifth Circuit, No. 11-KA-12.

Denied.


text:
    STATE of Louisiana v. Daniel WATTS.
    No. 2012-KP-0376.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Watts, Daniel; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. A, No. 94017; to the Court of Appeal, First Circuit, No. 2011 KW 1577.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Charles WATTS, Jr.
    No. 2012-KO-0557.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Watts Jr., Charles; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 408521-2; to the Court of Appeal, First Circuit, No. 2011 KA 1426.

Denied.


text:
    STATE of Louisiana v. Albert J. MARRERO, Jr.
    No. 2012-K-0563.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Marrero Jr., Albert J.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 485,767; to the Court of Appeal, First Circuit, No. 2011 KA 1285.

Denied.


text:
    STATE of Louisiana v. Stephen GRAVES.
    No. 2012-KO-0575.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Graves, Stephon; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 803291 C/W 803292 C/W 803524 C/W 1-000458; to the Court of Appeal, First Circuit, No. 2011 KA 1422.

Denied.


text:
    STATE of Louisiana v. Marvin DAVIS.
    No. 2012-K-0597.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Davis, Marvin; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, Div. J, No. 462,090; to the Court of Appeal, First Circuit, No. 2011 KA 0990.

Denied.


text:
    STATE of Louisiana v. Bennie BANNISTER.
    No. 2012-KO-0628.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Bannister, Bennie; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 07-709; to the Court of Appeal, Fifth Circuit, No. 11-KA-602.

Denied.


text:
    STATE of Louisiana v. Richard STRIPPLING.
    No. 2012-KP-0692.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Strippling, Richard; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 98-797; to the Court of Appeal, Fifth Circuit, No. 11-KH-1097.

Denied.


text:
    STATE of Louisiana v. Eddie WILLIAMS.
    No. 2012-KP-0698.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Williams, Eddie; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 05-4196; to the Court of Appeal, Fifth Circuit, No. 11-KH-1110.

Denied.

GUIDRY, J., recused.


text:
    STATE of Louisiana v. Shane Michael GATES.
    No. 2012-KK-0806.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, Nos. 423508, 423509; to the Court of Appeal, First Circuit, No. 2012 KW 0164.

Denied.

VICTORY, J., would grant.


text:
    ROBERT M. COLEMAN & PARTNERS, ARCHITECTS v. Crawford LEWIS, C & L Professional Services, Inc., et al.
    No. 2012-CC-0845.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Crawford Lewis, et al.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 570,282; to the Court of Appeal, First Circuit, No. 2011 CW 1466.

Denied.

JOHNSON and CLARK, JJ., would grant.


text:
    Roland RIVETTE, Sr., et ux. v. LAFAYETTE AIRPORT COMMISSION.
    No. 2012-CC-0867.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Schindler Elevator Corporation;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. I, No. 2009-5728; to the Court of Appeal, Third Circuit, No. CW 11-01380.

Denied.

VICTORY, GUIDRY and CLARK, JJ., would grant.


text:
    STATE of Louisiana v. Dale ELMORE, et al.
    No. 2012-KK-0871.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Elmore, Dale; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 505-700; to the Court of Appeal, Fourth Circuit, No. 2012-K-0196.

Denied.

JOHNSON and WEIMER, JJ., would grant.


text:
    Eleanor T. FRANATOVICH Wife of/and Darryl Franatovich v. ST. BERNARD PARISH GOVERNMENT.
    No. 2012-C-0989.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re St. Bernard Parish Government;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 98-510; to the Court of Appeal, Fourth Circuit, No. 2011-CA-1128.

Denied.

GUIDRY, J., would grant.


text:
    Jean Laforge Wife of/and Jay Michael NAPOLITANO v. STATE of Louisiana, through the DIVISION OF ADMINISTRATION, in its Capacity as Successor to the Board of Commissioners of the Orleans Levee District, and BellSouth Telecommunications, Inc.
    No. 2012-C-0901.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Laforge, Jean et al.; Napolitano, Jay Michael; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 2007-4529; to the Court of Appeal, Fourth Circuit, No. 2011-CA-1286.

Denied.


text:
    STATE of Louisiana v. Kendrick JOHNSON.
    No. 2012-KK-0902.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Johnson, Kendrick; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 06-10-0232; to the Court of Appeal, First Circuit, No. 2012 KW 0268.

Denied.


text:
    Neelam PARVEEN, individually and on Behalf of Mansoor Raja and their minor children v. TIKI TUBING, LLC and ABC Insurance Company.
    No. 2012-C-0903.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Parveen, Neelam et al.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. F, No. 128,216; to the Court of Appeal, First Circuit, No. 2011 CA 1477.

Denied.


text:
    Patrick JOHNSON v. CONAGRA POULTRY COMPANY.
    No. 2012-C-0904.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Pilgrim’s Pride f/k/a Conagra Poultry Company; — Defendants; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 02, No. 10-05586; to the Court of Appeal, Third Circuit, No. 11-0986.

Denied.


text:
    Anthony ST. PIERRE v. Loretta Ann Rivera ST. PIERRE.
    No. 2012-C-0911.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re St. Pierre, Loretta; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 83873; to the Court of Appeal, First .Circuit, No. 2011 CA 1579.

Denied.


text:
    John POULLARD v. Lester ST. AMANT and Louisiana State Board of Medical Examiners.
    No. 2012-CP-0919.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Poullard, John; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2008-9808; to the Court of Appeal,. Fourth Circuit, No. 2011-CA-0958.

Denied.


text:
    Andrew DUFRENE, Jr. a/k/a Andre Dufrene and Dufrene Developers, Inc. v. CERTAIN INTERESTED UNDERWRITERS AT LLOYD’S OF LONDON SUBSCRIBING TO CERTIFICATE NUMBER 3051393; Equity Partners Insurance Services, Inc.; Insurance Underwriters, Ltd. and Carr & Associates, Inc.
    No. 2012-C-0930.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Andrew Dufrene, Jr. a/k/a Andre Dufrene; Dufrene Developers Inc.;— Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 635 — 407; to the Court of Appeal, Fifth Circuit, No. 11-CA-1002.

Denied.


text:
    STATE of Louisiana v. Harold REED, Jr.
    No. 2012-KK-0932.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Reed Jr., Harold; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 436486; to the Court of Appeal, First Circuit, No. 2011 KW 2412.

Denied.


text:
    DOMINION CREDIT, L.L.C. v. LOUISIANA DEMOLITION, INC.
    No. 2012-CC-0933.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Louisiana Demolition Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 2011-6688; to the Court of Appeal, Fourth Circuit, No. 2012-C-0239.

Denied.


text:
    Norman PRESTENBACK v. Irma Dennett HEARN.
    No. 2012-C-0942.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Prestenback, Norman; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. C, No. 2004-1893; to the Court of Appeal, Fourth Circuit, No. 2011-CA-1380.

Denied.


text:
    James Nicholas ARTERBURN v. Karen Ann ARTERBURN.
    No. 2012-OC-0943.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Arterburn, Karen Ann; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. H, No. 2007-6667; to the Court of Appeal, Third Circuit, No. CA 12-34.

Denied.


text:
    James NEESE and Norma Neese v. EAST BATON ROUGE MEDICAL CENTER, LLC d/b/a Ochsner Medical Center-Baton Rouge.
    No. 2012-C-0948.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re East Baton Rouge Medical Center LLC D/B/A Ochsner Medical Center — Baton Rouge; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 590225; to the Court of Appeal, First Circuit, No. 2011 CA 0811.

Denied.


text:
    NOLA 180, a Non-profit Corporation, as Manager of Langston Hughes Academy Charter School v. TREASURE CHEST CASINO, LLC and Boyd Gaming Corporation.
    No. 2012-C-0949.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re NOLA 180, A Non-Profit Corporation, As Manager of Langston Hughes Academy Charter School; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 689-002; to the Court of Appeal, Fifth Circuit, No. 11-CA-853.

Denied.


text:
    Ashley HOFFMAN, Individually and on Behalf of all other similarly situated v. TRAVELERS INDEMNITY COMPANY OF AMERICA.
    No. 2012-CC-0956.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Travelers Indemnity Company of America; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. A, No. 70415; to the Court of Appeal, First Circuit, No. 2011 CW2804.

Denied.


text:
    Michael PARKER C/W Bryce Williams and Peter Reyes v. STATE of Louisiana.
    No. 2012-C-0957.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re State of Louisiana; — Defendant; Applying For Writ of Certiorari and/or Review Office of Worker’s Compensation District 8, Nos. 09-06668, 09-06669, 09-06670, 09-06671; to the Court of Appeal, Fourth Circuit, No. 2011-CA-1475.

Denied.

JOHNSON and VICTORY, JJ., would grant.


text:
    Kenneth TRICHE and Susan Triche v. Tony LeJEUNE, et al.
    No. 2012-CC-0958.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re GSM Consulting, Inc.; LeJeune, Tony et al.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. D, No. 72329; to the Court of Appeal, Third Circuit, No. CW 11-01512.

Denied.


text:
    W.P. and E.P. Individually and on Behalf of their Minor Son, H.P. v. UNIVERSAL HEALTH SERVICES FOUNDATION d/b/a River Oaks Child and Adolescent Hospital.
    No. 2012-C-0960.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re P., E.; P., W. et al.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 690-364; to the Court of Appeal, Fifth Circuit, No. 11-CA-801.

Denied.

GUIDRY, J., recused.


text:
    STATE of Louisiana v. Thomas N. SALZANO.
    No. 2012-KK-0961.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Salzano, Thomas N.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 6742-09; to the Court of Appeal, Third Circuit, No. KW 11-01415.

Denied.


text:
    James Nicholas ARTERBURN v. Karen Ann ARTERBURN.
    No. 2012-OC-1004.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Arterburn, Karen Ann; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. H, No. 2007-6667; to the Court of Appeal, Third Circuit, No. CA 12-34.

Denied.


text:
    Kevin MORALES v. Cherie BERGERON.
    No. 2012-CJ-1126.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Bergeron, Cherie; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. D, No. 112488; to the Court of Appeal, First Circuit, No. 2012 CU 0071.

Denied.

KNOLL, J., would grant.


text:
    STATE of Louisiana in the Interest of D.N.P. and M.R.P.
    No. 2012-OC-1222.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Russell, Misty Dawn; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, Denham Springs City Court, No. J-10680; to the Court of Appeal, First Circuit, No. 2012-CJ-0163.

Denied.

JOHNSON and KNOLL, JJ„ would grant.


text:
    STATE of Louisiana v. Leo RENNIX.
    No. 2012-KK-1282.
    Supreme Court of Louisiana.
    June 15, 2012.
   In re Rennix, Leo; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 08-10-0408; to the Court of Appeal, First Circuit, No. 2012 KW 0501.

Denied.


text:
    Brandy REESE v. WORKNET 2000, INC., et al.
    No. 2012-CC-1284.
    Supreme Court of Louisiana.
    June 22, 2012.
   In re Liberty Mutual Insurance; Worknet 2000, Inc., et al.; — Defendant(s); Applying For Supervisory and/or Remedial Writs Office of Workers’ Compensation; District 4, No. 11-04564; to the Court of Appeal, Third Circuit, No. WCW 12-00073.

Granted in part. The protective order is modified to eliminate the requirement that defendants are limited to asking leading questions when discussing claimant’s alleged assault. In all other respects, the application is denied.


text:
    Stephen Dale JACKSON v. STATE of Louisiana, LSU Health Sciences Center, Health Care Service Division—Earl K. Long Medical Center; Emergency Medical Services, Inc.; and Sid Gautreaux in his Capacity as Sheriff of East Baton Rouge Parish and the City of Baton Rouge.
    No. 2012-C-0912.
    Supreme Court of Louisiana.
    June 22, 2012.
   In re Michelle Bowman, as natural tu-trix of the minor children of Stephen Dale Jackson; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 566,092; to the Court of Appeal, First Circuit, No. 2011 CA 1716.

Writ granted. This matter is remanded to the trial court for an evidentiary hearing on the availability of an administrative remedy pursuant to La.R.S. 15:1171, et seq.


author: SAUNDERS, J.

text:
    Kellianne KELLY-WILLIAMS, indiv., etc. v. AT & T MOBILITY, LLC, et al.
    No. 11-1179.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Roy Clifton Cheatwood, Adam Bennett Zuckerman, Baker Donelson Bearman, New Orleans, LA, John Barney Davis, II, Elisabeth Quinn Prescott, Attorneys at Law, Baton Rouge, LA, John Michael Fitzpatrick, Johnathan Fitzgerald, Edwin J. Kilpela, Jr., Wheeler, Trigg, O’Donnell, LLP, Denver, CO, for Defendant Appellee, AT & T Mobility Services, LLC, Chris Benning, AT & T Mobility, LLC.

      Richard Jerald Dodson, Brent Paul Frederick, Michael T. Beckers, Dodson, Hooks & Frederick, Baton Rouge, LA, for Plaintiff Appellant, Kellianne Kelly-Williams.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and J. DAVID PAINTER, Judges.
   SAUNDERS, J.

Lin this personal injury case, a young child was struck by a falling advertisement sign inside an AT & T store in Alexandria, Louisiana after playing under and around the sign. After a jury trial, AT & T was found free of liability. The plaintiff appeals decisions of the trial court involving whether the law included in jury interrogatories and jury instructions was proper. For the reasons discussed herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Johnathan Davis (hereinafter “Johnathan”), a boy of two years and eight months, experienced an accident at an AT & T store in Alexandria, Louisiana while his mother, Kellianne Kelly-Williams (hereinafter “Williams”), was shopping. That evening, on March 21, 2008, while his mother shopped, Johnathan played in various parts of the store, eventually arriving at a part of the store where an inverted “V” plastic floor sign had been placed. Johnathan then played under and around the sign. In doing so, he pushed the sign against a window, causing the sign to fold up. Johnathan then dropped something on the floor. As he bent down to pick it up, the sign fell towards him, striking his head and causing him to fall down. He landed with his arms outstretched, which prevented his head from hitting the ground.

The next day, Johnathan experienced two seizures, which, according to Williams, have continued since the accident. Although the experts’ opinions differed at trial, Johnathan’s doctors have stated that he suffers from post-traumatic epilepsy and from serious cognitive issues.

Shortly after the accident, Williams filed suit on behalf of Johnathan, and sought damages due to the alleged negligence of AT & T, in that, inter alia, AT & T and its employees had placed the sign in an area of high customer traffic and in an 12unsecured manner, thereby creating a hazardous condition. After a trial, the jury returned a verdict in favor of AT & T. Williams now appeals, asserting four assignments of error.

ASSIGNMENTS OF ERROR

1. The trial court committed reversible error by failing to include any interrogatory on the jury verdict form regarding general negligence. This case involves specific allegations of negligence on part of AT & T’s employees, and Louisiana law is clear that the general principles of negligence and not those articulated in La.R.S. 9:2800.6 regarding merchant liability are applicable here.
2. The trial court committed reversible error by failing to include any interrogatory on the jury verdict form concerning the negligence of a named party, Chris Benning, AT & T’s manager.
3. The trial court committed reversible error by setting forth a much higher burden of proof for plaintiff to meet in order to prevail against AT & T, compared to the burden of proof AT & T had to meet to show that plaintiffs were comparatively negligent; although the same burden was applicable to both parties.
4. The trial court committed reversible error by failing to include in its jury charges an instruction regarding the causation presumption contained in Houseley [Housley] v. Cense, 579 So.2d 973 (La.1991).

LAW AND ANALYSIS

In her first assignment of error, Williams contends that the trial court erred by failing to include on the verdict form a jury interrogatory on the law of general | ¡¡negligence, as opposed to language from the Louisiana Merchant Liability Act, or La.R.S. 9:2800.6. We find no merit in this contention.

The issue before us is whether the trial court was mandated to include general negligence principles on the verdict form. The court in Citgo Petroleum Corp. v. Yeargin, Inc. explains the governing principles:

This issue is governed by La.Code Civ.P. art. 1812. Within the guidelines of this article, the trial court is vested with broad discretion in determining whether to submit special interrogatories to the jury. Black v. Prudential Prop. & Cas. Ins. Co., 93-878 (La.App. 3 Cir. 3/2/94), 634 So.2d 1340. It also has wide discretion in the framing of the questions to be posed to the jury. Bell v. Vickers, 568 So.2d 160 (La.App. 2 Cir.1990). Absent a showing of abuse of that discretion, an appellate court may not set aside such determinations. Tramontin v. Glass, 95-774 (La.App. 5 Cir. 1/30/96), 668 So.2d 1252.

Citgo Petroleum Corp. v. Yeargin, Inc., 95-1574, p. 31 (La.App. 3 Cir. 2/19/97), 690 So.2d 154, 172-73, writs denied, 97-1223 and 97-1245 (La.9/19/97), 701 So.2d 169 and 170.

|4The court in Davenport v. Albertson’s, Inc. states the relevant inquiries pursuant to the Louisiana Merchant Liability Act:

To maintain a slip and fall action, [plaintiff] has the burden of proving the usual requirements for a negligence action (duty, breach, cause in fact, & damages) plus those found in La.R.S. 9:2800.6, including that:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable, and
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence, and
(8) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Davenport v. Albertson’s, Inc., 00-685, p. 342 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, 342 writ denied, 788 So.2d 427 (La.2001).

The court in Frelow v. St. Paul Fire and Marine Ins. expounds on the applicability of general negligence principles and the Louisiana Merchant Liability Act: “When a trip and fall accident is allegedly the result of a specific act of an employee and not solely the result of a condition found on the premises, the principles of negligence are applicable.” Frelow v. St. Paul Fire & Marine Ins. Co., 93-979, p. 5 (La. App. 3 Cir. 2/2/94), 631 So.2d 632, 635 (citing Crooks v. Nat’l Union Fire Ins. Co., 620 So.2d 421 (La.App. 3 Cir.), writs denied, 629 So.2d 391 and 392 (La.1993)).

At trial, the verdict form read in part: “Do you find that Plaintiff proved by a preponderance of the evidence that an unreasonably dangerous condition caused or contributed to the accident of March 21, 2008?” It is clear that this interrogatory pertains to the first element of La.R.S. 9:2800.6 as explained above in Davenport. Williams, however, asserts that general negligence rules should have been included on the jury form, so that the jury potentially could have found AT & T liable under either general negligence law, the Louisiana Merchant Liability | Jaw, or both. Williams objected, her brief explains, to her case becoming exclusively a premises liability case due to the limited scope of the verdict form.

However, we do not agree with Williams’s contention. The trial court was not mandated to include general negligence law on the verdict form, because Williams is unable to point to any negligence on part of AT & T or its employees as support of her assertion. In her brief, Williams compares her case to Crooks v. Nat’l Union Fire Ins. Co., 620 So.2d 421 to further her argument that the direct conduct of AT & T employees constituted negligence. Crooks, however, is distinguishable. The employee in Crooks pulled a vacuum cleaner hose across an aisle, causing the plaintiff to trip and suffer injury. Id. Indeed, Williams offers no evidence to suggest that any analogous action on the part of AT & T employees caused the sign to fall.

Moreover, the conduct of AT & T which Williams references in support of her argument fail to form the basis of a finding of negligence. First, Williams points to the fact that the employees failed to ballast the sign with sand, as instructions on the sign directed. Testifying on this issue, the manufacturer of the sign stated that this precaution was necessary only in windy conditions. If the absence of sand did cause the sign to be unreasonably dangerous, then the issue was covered by the verdict form. If however, the absence of sand did not cause the sign to be unreasonably dangerous, then the failure to add sand cannot be said to constitute negligence. Accordingly, the verdict form clearly covered this issue.

As another example of alleged negligence, Williams argues that the placement of the sign in the corner of the store was dangerous, in that it would “only fall into the store if disturbed.” As is the case with the absence of ballast sand in the discussion above, if the placement of the sign did cause the sign to be unreasonably dangerous, then the issue was included in the verdict form. If, | (¡however, the placement of the sign did not cause the sign to be unreasonably dangerous, then it could not be said that this conduct was negligent.

Williams also points to the fact that no employee intervened in order to prevent the sign from falling on Johnathan. The evidence, though, shows that none of the employees present saw the sign falling on Johnathan. Nothing in the record suggests that any employee was in a position to help Johnathan once the sign began to fall. In the absence of any evidence suggesting negligence on the part of any employee, it cannot be said that the trial court erred in failing to include general negligence in the jury form.

Due to lack of any evidence which could form the basis of a finding of fact of negligent conduct by AT & T’s employees, we find that the trial court did not abuse its discretion in its selection of jury interrogatories.

In her second assignment of error, Williams argues that the trial court erred by failing to include any interrogatory on the jury verdict form concerning the negligence of a named party, Chris Benning, AT & T’s manager. However, Williams puts forth no evidence of negligent conduct by Chris Benning. Williams does contend that negligence of Benning’s subordinates should be attributed to Benning. The record suggests that the jury was justified in finding that the accident was neither caused nor contributed to by an unreasonably dangerous condition. The various allegations of negligence all presuppose a dangerous condition from which Johnathan should have been protected. In the absence of allegations or proof suggesting negligence related to the failing sign, the trial court was not mandated to include such an interrogatory. Therefore, we find no abuse of discretion in the trial court’s exclusion of the negligence of Chris Ben-ning on the jury form.

|7In the third assignment of error, Williams asserts that the trial court erred in that the jury verdict form impermissibly allowed for the jury to apply different standards to Williams and to AT & T in its apportionment of fault. In its decision-making, the jury did not reach the issue of apportionment of fault. The jury’s initial finding that Johnathan’s accident was not caused by an unreasonably dangerous condition cleared AT & T of liability. After the first interrogatory, the jury did not answer the remaining questions on the jury form. The jury, then, did not reach the issue of apportionment of fault. Thus, whether the interrogatories contained proper guidelines of comparative fault is irrelevant. Accordingly, we find that this issue is moot.

In her last assignment of error, Williams contends that the trial court erred by failing to include in its jury charges an instruction regarding the causation presumption contained in Housley v. Cense, 579 So.2d 973 (La.1991):

[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.
Id. [Lucas v. Insurance Co. of North America, 342 So.2d 591] at 596 [ (La. 1977) ]. See also, Simpson v. Caddo Parish School Board, 540 So.2d 997 (La. App. 2 Cir.1989); Petersen v. State Farm Auto. Insurance Company, 543 So.2d 109 (La.App. 3 Cir.1989); Wisner v. Illinois Central Gulf Railroad, 537 So.2d 740 (La.App. 1 Cir.1988).

Housley v. Cerise, 579 So.2d 973, 980 (La. 1991), (quoting Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977)).

In order to merit the inclusion of the Housley presumption in the jury instruction, the plaintiff must prove by a preponderance of the evidence all three elements of the presumption. Juneau v. Strawmyer, 94-903 (La.App. 4 Cir. 12/15/94), 647 So.2d 1294. What is more, “[t]he question of whether [the plaintiff] |swas entitled to have this instruction on causation presented to the jury is a question of fact that cannot be disturbed on appeal absent a finding of manifest error.” Venissat v. St. Paul Fire & Marine Ins. Co., 06-987 p. 8 (La.App. 3 Cir. 8/15/07), 968 So.2d 1063, 1070 (citations omitted).

As in the discussion of the third assignment of error, we note that the jury did not reach the issue of causation after it made the initial finding that the accident was not caused by an unreasonably dangerous condition. It follows that the issue of whether Johnathan’s alleged injuries bore a causal relation to the accident is rendered immaterial. Therefore, we find that the issue of whether the trial court erred by declining to include the Housley presumption in the jury instructions is moot.

CONCLUSION

We affirm the decision of the trial court to exclude general negligence law and Chris Benning’s negligence from the jury verdict form, because Williams failed to provide evidentiary support of negligence on part of AT & T and its employees. Discussion of the remainder of assignments of error are pretermitted for the reasons discussed herein. All costs are assessed to Kellianne Kelly-Williams.

AFFIRMED.

      . A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
      B.In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
      (1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
      (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
      (3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
      C. Definitions:
      (1) "Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
      (2) "Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
      D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695. La.R.S. 9:2800.6.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Melinda McLain ROSENFELD v. David John ROSENFELD.
    No. 11-CA-686.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Jennifer Carter de Blanc, Attorney at Law, Marrero, LA, for Plaintiff/Appellant.
    Kermit L. Roux, III, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKS HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

LThis appeal arises out of the granting of a Rule to Terminate Permanent Spousal Support. The issue before the Court is whether the trial court correctly determined that the permanent spousal support established in this case through a Consent Judgment could be terminated upon remarriage pursuant to Louisiana Civil Code article 115. For the reasons provided below, we find that the trial court was correct in its determination and affirm its judgment.

FACTS AND PROCEDURAL HISTORY

David John Rosenfeld and Melinda McLain Rosenfeld married on April 25, 1998. Of that marriage, one child was born, namely Emma Gabrielle Rosenfeld. On August 3, 2007, Mrs. Rosenfeld filed a “Petition for 102 Divorce, Interim and Final Support, Partition of Community Property and Restraining Orders.” The Rule for Permanent Spousal Support was set for hearing on July 28, 2009, before hearing officer Karl Hansen, Jr. On that date, the parties agreed to child custody and support arrangements and stipulated to permanent spousal support to be paid to Mrs. Rosenfeld in the amount of $3,000.00 per month for two years beginning August 1, 2009, and $2,000.00 per month thereafter for four years.

laOn March 23, 2010, Mr. Rosenfeld filed a Rule to Decrease Permanent Spousal Support asserting a decrease in his income affected his ability to pay the amount of spousal support to which the parties previously agreed. Subsequently, Mr. Rosen-feld filed a Motion to Set Visitation Schedule stating that since the date of the July 28, 2009, consent judgment he relocated to Atlanta, Georgia and the parties were unable to reach an agreement concerning visitation. Both matters were set for hearing on May 17, 2010, before hearing officer Karl Hansen, Jr. On that date, the visitation schedule was set and agreed to by the parties through Consent Judgment. However, the hearing officer continued the Rule to Decrease Spousal Support, noting that the trial judge should consider the issue of whether the spousal support was contractual in nature or subject to modification.

The record is unclear as to the date, but at some point in October of 2010, Mrs. Rosenfeld remarried. On October 15, 2010, Mrs. Rosenfeld filed a “Motion to Determine Whether the Spousal Support Agreed to by the Parties in July 2009 is Contractual Spousal Support and Thus not Subject to Modification.” On October 28, 2010, Mr. Rosenfeld filed a “Rule to Terminate Permanent Spousal Support” asserting that Mrs. Rosenfeld’s remarriage extinguishes his obligation to pay spousal support as a matter of law pursuant to La. C.C. art. 115. The trial court set both matters for hearing, the Honorable June Darensburg presiding, on December 14, 2010.

In support of her position, Mrs. Rosen-feld argues that the court should consider the July 28, 2009, consent judgment as a binding contract between the parties. She notes that public policy favors compromise and the finality of settlements and asserts that the consent judgment at issue is a compromise under La. C.C. art. 3071.

|4In support of his Motion to Terminate Permanent Spousal Support, Mr. Rosen-feld argues that consent judgments generally can be modified where a change in circumstances exists. Mr. Rosenfeld notes that the July 28, 2009, consent judgment at issue is silent regarding modification of its terms. Mr. Rosenfeld further asserts that he never intended to waive his statutory right to termination of spousal support upon remarriage as provided in La. C.C. art. 115.

Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

Following the hearing, the trial judge took the matter under advisement. On January 8, 2011, the trial judge issued her ruling granting Mr. Rosenfeld’s Rule to Terminate Permanent Spousal Support, finding the La. C.C. art. 115 applies and extinguishes Mr. Rosenfeld’s obligation to pay spousal support as a matter of law.

On March 10, 2011, Mrs. Rosenfeld filed a Motion for Devolutive Appeal. It is noted that Mr. Rosenfeld filed a Motion to Dismiss Appeal, which was denied and referred to the merits by this Court on October 5, 2011. Mr. Rosenfeld asserts that La. C.C.P. art. 3943 applies to the judgment at issue, thereby providing appellant, Mrs. Rosenfeld, only 30 days to file this appeal from the expiration of the delay for applying for a new trial. Upon review of La. C.C.P. art. 3943, it is evident that the clear language of the article limits its application to judgments “awarding” spousal support; the judgment on appeal is a judgment terminating spousal support. Therefore, La. C.C. P. art. 3943 is inapplicable to the judgment on appeal. Accordingly, this Court finds that Mrs. Rosen-feld’s appeal was timely filed within the delays provided in La. C.C.P. art. 2087.

| DISCUSSION

The Louisiana Supreme Court has addressed the issue of whether a consent judgment stipulating to the payment of spousal support may be altered and has pronounced that modification of such a consent judgment is permissible upon a showing of a change in circumstance of either party. Ducote v. Ducote, 339 So.2d 835, 837-38 (La.1976); Bernhardt v. Bernhardt, 283 So.2d 226, 228-29 (La.1973). The remarriage of the obligor spouse is not considered a change in circumstance sufficient to alter payment of spousal support. La. C.C. art. 114. Conversely, by operation of law and without need for judicial intervention, the obligation of spousal support is automatically extinguished upon the remarriage of the obligee spouse. La. C.C. art. 115.

In her brief to this Court, Mrs. Rosenfeld cites Hamsa v. Hamsa, 05-219 (La. App. 5 Cir. 12/27/05), 919 So.2d 776, to support her position that La. C.C. art. 115 should not apply when the parties have entered into a consent judgment agreeing to the amount and duration of spousal support payments. Hamsa involved a consent judgment containing a lump sum payment for spousal support, divided into monthly installments for a designated period of time, to settle thirteen (13) years of past due and owing spousal support payments as well as any and all future claims for support. In the consent judgment at issue in Hamsa, the court was unable to determine what amount of the lump sum payment provided for past due obligations and what amount was designated for future support obligations.

Generally, consent judgments are subject to modification or termination by a showing of a change in circumstance of either party, including termination of | ^support upon remarriage as provided for in La. C.C. art. 115. However, this Court, in Hamsa, created an exception providing that termination pursuant to La. C.C. art. 115 of a spousal support agreement reached through consent judgment is not proper when a “lump sum alimony judgment included a significant past obligation.” Hamsa at 779. On the record before us, there is no evidence that the amount of spousal support agreed to between the parties involved a significant past due obligation. Accordingly, we find the exception created in Hamsa inapplicable to the instant case.

In further support of her argument, Mrs. Rosenfeld asserts that the parties never intended to allow modification of the amount of spousal support agreed upon. At the hearing, Mrs. Rosenfeld testified to her understanding that the July 28, 2009 agreement between the parties as to spousal support was a final agreement creating a contract that could not be modified in any way. Mrs. Rosenfeld notes that she never sought an increase in spousal support and did not believe that she had the option to do so in light of the July 28, 2009, agreement. She further notes that she detrimentally relied upon the parties’ agreement to be treated as a final contract and would not have remarried had she known the payments could then terminate. [Mrs. Rosenfeld brought the concern of remarriage to her then attorney and was advised that the agreement was a final binding contract that could not be modified at any time.]

Louisiana appellate courts have generally pronounced that parties may restrict or waive their statutory rights to modify or terminate spousal support by providing explicit and clear written language evidencing them intent to do so. The jurisprudence demonstrates that a non-modification clause contained in a consent judgment will be enforced by Louisiana courts and prohibit modification of a spousal support agreement. See Twichell v. Twichell, 00-1248 (La.App. 5 Cir. 11/28/00), 772 So.2d 956, 958-59, writ denied, 01-0133 (La.3/23/01), 788 So.2d 428, writ denied, 01-0206 (La.3/23/01), 788 So.2d 429; Ellefson v. Ellefson, 92-963 (La.App. 5 Cir. 5/21/93), 616 So.2d 221, 223, writ denied, 93-1011 (La.5/21/93), 617 So.2d 1183 and reconsideration denied, 93-1011 (La.6/25/93), 620 So.2d 830; Megison v. Megison, 94-0152 (La.App. 5 Cir. 9/14/94), 642 So.2d 885; Williams v. Poore, 10-1087 (La.App. 4 Cir. 1/12/11), 55 So.3d 953; Bland v. Bland, 97-0329 (La.App. 1 Cir. 12/29/97), 705 So.2d 1158. However, absent such a clause or language expressly prohibiting modification, the Louisiana Supreme Court has dictated that a consent judgment stipulating spousal support is subject to modification or termination. Ducote v. Ducote, 339 So.2d 835, 837-38 (La.1976); Bernhardt v. Bernhardt, 283 So .2d 226, 228-29 (La.1973).

In this case, the July 28, 2009, consent judgment at issue is silent concerning modification or alteration of its conditions; there is no language indicating that either party intended to waive any statutory rights to modify, alter, or terminate spousal support. Louisiana Civil Code article 115 provides that, by operation of law, the obligation of a spouse to pay spousal support is extinguished upon remarriage of the obligee spouse. There is no express language in the July 28, 2009, consent judgment at issue indicating that Mr. Ro-senfeld waived the statutory protections provided by La. C.C. art. 115.

Under the Louisiana jurisprudence discussed above, this Court finds that the trial court was correct in its determination that La. C.C. art. 115 applies to the facts of this case and as a matter of law terminates any obligation of Mr. Rosenfeld to pay spousal support to Mrs. Rosenfeld following her remarriage. Accordingly, the judgment of the trial court is AFFIRMED.

AFFIRMED

      . La. C.C.art. 3943 provides:
      An appeal from a judgment awarding custody, visitation, or support of a person can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend execution of the judgment insofar as the judgment relates to custody, visitation, or support.
      La. C.C. art. 3942 provides an appeal delay of thirty (30) days from the applicable date provided in La. C.C.P. art. 2087.

        . La. C.C.P. art. 2087, in pertinent part, provides:

      . La. C.C. art. 115 states that ”[t]he obligation of spousal support is extinguished upon the remarriage of the obligee, the death of either party, or a judicial determination that the obligee has cohabited with another person of either sex in the manner of married persons.”


author: MARION F. EDWARDS, Chief Judge.

text:
    Melissa Abreo LOWENTRITT v. Joshua Edward LOWENTRITT.
    No. 11-CA-703.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Mitchell J. Hoffman, Kim Ngan Nguyen, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Leslie A. Bonin, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERT A. CHAISSON.
   MARION F. EDWARDS, Chief Judge.

|2In this domestic matter, plaintiff/appellant, Melissa Abreo Lowentritt (“Ms. Abreo”), appeals a decision of the trial court regarding issues relating to interim spousal support, child support, and use and occupancy of the family home. We amend the judgment on appeal before us and, as amended, we affirm for the reasons assigned herein.

Ms. Abreo and Dr. Joshua Lowentritt were married on June 5, 1993 and had three children. On January 12, 2009, Ms. Abreo filed for divorce based on La. C.C. art. 102 seeking interim spousal support, child support, and use and occupancy of the family home in River Ridge, Louisiana. Dr. Lowentritt filed a motion for termination of the community and separation of property on August 11, 2009, alleging that the parties had been living separate and apart since January 12, 2009. That issue was settled by a consent judgment of the parties on September 3, 2009 in which they agreed to terminate the community effective January 12, 2009.

The matter proceeded with child custody issues and discovery relating to the assets of the community and income of the parties. A judgment of divorce was rendered on March 11, 2010. The parties entered into a consent judgment on June 2, 2010 in which Ms. Abreo was awarded the exclusive use and occupancy of the |Rfamily home and deferred the issue of rental reimbursement until partition of community property.

The matter went before a hearing officer and recommendations were made on interim spousal support, child support, and mortgage and rental reimbursements for use of the family home. Both parties filed objections to the recommendations, and the matter went before the trial court on November 3, 2010. After the hearing, the trial court held the matter open for post-trial memoranda and took the matter under advisement. On December 16, 2010, the trial court rendered judgment awarding Ms. Abreo use and occupancy of the home and interim spousal support for the period of January 12, 2009 through September 11, 2010 in the amount of $5,000 per month. The judgment also made Ms. Abreo responsible for the mortgages, property taxes, and insurance on the family home “while she resides therein.” The trial court found Dr. Lowentritt’s monthly income to be $42,780 and Ms. Abreo’s to be $3,000, thereby assessing 96 percent of the financial needs of the children to Dr. Low-entritt and 4 percent to Ms. Abreo. The trial court also awarded Ms. Abreo $4,498.00 per month in child support.

Ms. Abreo filed a motion for new trial opposing the decision of the trial court on child support and spousal support. Specifically, Ms. Abreo asserted the trial court failed to address the minor children’s medical/dental and/or other expenses as provided by La. R.S. 9:315.5 and 9:315.6 and failed to consider the mortgages, property taxes, and insurance expenses on the home as part of the support obligation.

The trial court granted the motion for new trial in part ordering Dr. Lowentritt to continue to maintain the three minor children on health and Lhospitalization insurance and proportionately divided the unreimbursed medical expenses between the parties. In all other respects, the motion for new trial was denied. Ms. Abreo has appealed both the original judgment and the amended judgment.

Ms. Abreo has also filed a motion to strike certain parts of Dr. Lowentritt’s brief not in evidence on the record. This Court is a court of record and may not review evidence that is not in the appellate record, or receive new evidence. We have not considered any discussion of fact not introduced into evidence at trial. Accordingly, the motion to strike is denied as moot.

On appeal, Ms. Abreo assigns six errors for our review. In those errors, Ms. Abreo questions the trial court’s calculations in the incomes of both parties and in the amount of child support and interim spousal support. Ms. Abreo also asserts the trial court erred in ordering her to be responsible for the mortgages, property taxes, and insurance while she resides in the family home. In the final error, Ms. Abreo asserts the trial court should have granted her motion for new trial.

LAW AND ANALYSIS

Ms. Abreo’s first two assignments are that the trial court erred when it found Dr. Lowentritt’s income to be $42,780 per month and Ms. Abreo’s to be $3,000. As to Dr. Lowentritt’s income, Ms. Abreo agrees with most of the expert calculation offered by testimony and documentation at trial that Dr. Lowentritt’s 2010 gross monthly income was $40,368. However, Ms. Abreo argues that Dr. Lowentritt disagrees with the assessment of monthly income received from a real estate holding group. The expert testimony offered by Barry Lee shows a calculation of $1,300 per month. Ms. Abreo argues that amount is actually $1,700 |sper month. Ms. Abreo also questions a negative $1,800 of income from another investment.

According to Ms. Abreo’s calculations, Dr. Lowentritt’s income should have been found to be $42,056.32. While Ms. Abreo acknowledges that the trial court actually imputed a higher income to Dr. Lowen-tritt, she argues that the trial court should have considered certain reimbursements received by Dr. Lowentritt for personal expenses to increase his income to $44,556.32.

Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business can be considered in the calculation of gross income. It is within the trial court’s discretion to decide what amount is appropriate for inclusion in gross ineome. In the matter before us, the trial court heard evidence from Mr. Lee, Dr. Lowentritt’s financial expert. Ms. Abreo did not present expert evidence to refute this testimony. Further, Ms. Abreo acknowledges that the trial court increased Dr. Lowentritt’s monthly income by about $723 over what Mr. Lee testified that the doctor earned. Clearly, the trial court considered some of the reimbursements for inclusion in its finding of Dr. Lowentritt’s monthly income. Considering the facts of this case, we find no abuse of the trial court’s discretion.

Ms. Abreo argues that the trial court overestimated her monthly earnings when it found that she has the capacity to earn $3,000. Ms. Abreo argues her income should have been computed by the trial court at 25 hours a week times $17 per hour, or $425 per week, or $1,770.83 per month. Ms. Abreo makes these calculations based on the actual hours she works at her part-time job as a Community Service Representative at Home Instead Senior Care. At the trial, Ms. | rAbreo testified that she has a college degree, but she has been out of the work force for fourteen years and is actively seeking a full-time position.

The definition of “income” for purposes of child support includes the earning potential of a voluntarily unemployed or underemployed party. If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. When determining whether a spouse is underemployed for the purpose of calculating a child support obligation, the court shall consider that spouse’s earning capacity in light of all circumstances. Whether a party is voluntarily under/unemployed with respect to calculating child support is a question of good faith of the party to be cast with paying the child support obligation.

At trial, Ms. Abreo testified that she had a college degree, but she stayed home to raise her children at Dr. Lowentritt’s request. She began actively seeking employment after the divorce and applied for several positions. Ms. Abreo admitted she only went on one actual interview; but, that interview resulted in the job at Home Instead Senior Care at a rate of $17 per hour. She works about twenty to twenty-five hours a week. Ms. Abreo stated that she asks for more hours and has tried to secure full-time work but is unable to attain that goal.

Given the testimony, we find the trial court erred in finding that Ms. Abreo was underemployed and that Ms. Abreo’s earning potential is $3,000 per month. It was clear from Ms. Abreo’s testimony that she is trying to secure full-time |7employment and also in the interim has repeatedly requested to work more hours at her current job. We find her to be in good faith in her attempts to be as gainfully employed as possible and increase her earning potential. Accordingly, we amend the trial court’s judgment to decree that Ms. Abreo’s earnings are $1,770.83 per month.

Ms. Abreo also assigns as error the trial court’s award of $4,498 for child support. Ms. Abreo asserts it is in the children’s best interest to increase the award. Ms. Abreo points out that the children are used to the high standard of living provided by Dr. Lowentritt’s income, which cannot be maintained on the award given by the trial court.

After the hearing, the trial court awarded $4,498 per month in child support to Ms. Abreo. Additionally, the trial court allocated 96 percent of the extraordinary, educational or extracurricular expenses, including deductibles and co-pays, to Dr. Lowentritt and 4 percent to Ms. Abreo. Additionally, the judgment orders Dr. Lowentritt to maintain the children on health and hospitalization insurance. The parties have agreed to share the cost of all extracurricular activities for the children proportionately.

When, as in the matter before us, the combined adjusted gross monthly income of the parties exceeds the highest level specified in the schedule, the court shall use its discretion in setting the amount of the basic child support obligation in accordance with the best interest of the child and the circumstances of each parent, but in no event shall it be less than the highest amount set forth in the schedule.

The award of child support to Ms. Abreo exceeds the highest amount set forth in the schedule. However, Ms. Abreo argues the amount is insufficient to support the children in the style to which they have become accustomed and that | sDr. Lowen-tritt can afford to pay more. Ms. Abreo asserts the trial judge erred by not awarding her the entire amount requested in her expense report for the expenses on the family home in which she and the children were living at the time of trial.

In setting the award, the trial court considered both testimonial and documentary evidence. The trial court also questioned both parties on items included in the expense reports. Many of the expenses in Ms. Abreo’s list are based on continued living in the family home, which has a high mortgage and maintenance costs. However, Ms. Abreo testified that she intended to move to a smaller, more affordable home and had applied for a home loan. Dr. Lowentritt testified that he has purchased a smaller home a few blocks from the family home and the couple shares custody of the children. Ms. Abreo testified that the children spend a little more than half the time with her and the rest of the time with Dr. Lowentritt.

Under the statutory mandate, when the combined total income of the parents exceeds the child support guidelines, a trial court must use its discretion in setting the amount of child support using the best interest of the child as the overriding factor to be considered. The amount of a child support award will not be reversed absent an abuse of discretion.

In the matter before us, we do not find abuse of the trial court’s discretion in the award of child support. The trial court reviewed and asked several questions regarding expenses listed in Ms. Abreo’s statement. It is clear that the trial court had a complete understanding of Ms. Abreo’s financial situation and considered the entire circumstances in making it ruling. The trial court questioned the $1,000 Itiper month Ms. Abreo listed for home repairs and an expense of $1,000 per month for a credit card that now has no balance. Ms. Abreo also admitted to the court that she does not employ a housekeeper and is unsure of the insurance amounts because this item on her expense sheet is paid directly by Dr. Lowentritt.

Ms. Abreo is only responsible for 4 percent of any expenses for her children. Further, the children live with their father almost half of the time, thus reducing Ms. Abreo’s expenses. Additionally, Ms. Abreo testified that she was in the process of applying for a home loan and intended to move to a more suitable home. It was also shown that several of the expense items on her sheet were invalid. Under these circumstances, we affirm the trial court’s award of $4,498 per month.

Ms. Abreo also challenges the $5,000 per month she received as interim alimony. Ms. Abreo agrees that the trial court correctly fixed interim spousal support from January 12, 2009 through September 11, 2010. However, she requests this Court to raise the monthly amount to about $6,000 based on the style of living she was accustomed to during the marriage, and taking into account that she now has to share expenses for the children.

A court may award an interim periodic support to a spouse in a divorce proceeding based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. Interim spousal support is an allowance awarded to a claimant spouse to help sustain the same style or standard of living that he or she enjoyed while residing with the other spouse, pending the litigation of the divorce. Because the trial court is vested with much Indiscretion in determining awards of spousal support, these determinations will not be disturbed absent a clear abuse of discretion.

The record shows that Ms. Abreo remained in the family home throughout the trial while Dr. Lowentritt was paying the expenses and child support. Given the circumstances of this case, we find no abuse of the trial court’s discretion in the interim spousal support award.

In her final assignment of error, Ms. Abreo asserts the trial court erred in ordering that she is responsible for the mortgages, property taxes, and insurance while she resides in the family home. In the judgment on appeal, the trial court made Ms. Abreo responsible for the home expenses as long as she chooses to reside there.

The record shows that Dr. Lowentritt paid the mortgages, property taxes, and insurance on the family home from the date Ms. Abreo filed for divorce in January of 2009 until the judgment of the trial court on December 16, 2010 in which Ms. Abreo was awarded use of the family home. Further, Dr. Lowentritt paid $5,000 to Ms. Abreo in interim spousal support and $5,430 in child support until the divorce decree was final. Additionally, Dr. Lowentritt paid 96 percent of all extraordinary expenses during this time.

The trial court considered living expenses as part of the child support award based on Ms. Abreo’s testimony that she intended to purchase another, cheaper home that she could afford and had applied for a home loan to accomplish that goal. Now that interim spousal support is no longer due, the child support has been set, and the divorce is final, we find no abuse of the trial court’s discretion in |T ordering Ms. Abreo to pay the expenses of continuing to live in the former family home as long as she chooses.

Ms. Abreo argues the trial court should have granted her motion for new trial. A new trial shall be granted upon a showing that the judgment appears clearly contrary to the law and evidence. Because we find the judgment is in conformance with the law and evidence, we find no error in the trial court’s denial of the motion for new trial.

In conclusion, we hereby amend the trial court’s judgment to decree that Ms. Abreo’s monthly earnings are $1,770.83. In all other respects, the judgment is affirmed.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED

      . Other consent judgments relating to child custody, use of Saints and Hornets tickets, and refinancing of certain real property were entered into by the parties. However, none of these judgments affect the judgment on appeal.

      . La. C.C.P. art. 2164.

      . La. R.S. 9:315(C)(3)(b).

      . Templeton v. Templeton, 00-0536 (La.App. 1 Cir. 12/22/00), 774 So.2d 1257, 1259-60.

      . La. R.S. 9:315(C)(5)(b).

      . La. R.S. 9:315.11(A).

      . Sequeira v. Sequeira, 04-433 (La.App. 5 Cir. 11/30/04), 888 So.2d 1097, 1104 (citations omitted).

      . Id.

      . La. R.S. 9:315.13(B)(1).

      . La. R.S. 9:315.19.

      . La. R.S. 9:315.13(B)(1).

        .State, Dep't of Soc. Services., ex rel. S.McC. v. J.A.McC., 03-108 (La.App. 5 Cir. 5/28/03), 848 So.2d 121, 125-26.

      . La. C.C. arts. Ill and 113.

      . La. C.C. art. 113.

        . Dufresne v. Dufresne, 08-215 (La.App. 5 Cir. 9/16/08), 992 So.2d 579, writ denied, 08-2843 (La. 12/17/08), 996 So.2d 1123.

      . La. C.C.P. art. 1972.