author: HILLARY J. CRAIN, Judge Pro Tem.

text:
    STATE of Louisiana v. Brandon DICKERSON.
    No. 10-KA-672.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.

      Thomas F. Daley, District Attorney Office, Edgard, LA, for PlaintifflAppellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKS HOMBERG WICKER, and HILLARY J. CRAIN, Pro Tempore.
   HILLARY J. CRAIN, Judge Pro Tem.

|2On November 10, 2008, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, Brandon Dickerson, with possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1. At the January 22, 2009 arraignment, defendant pled not guilty. Thereafter, defendant filed a motion to suppress evidence which, after a hearing, was denied by the trial judge.

The bill of information was then amended to charge defendant with attempted possession of a firearm by a convicted felon in violation of LSA-R.S. 14:27 and LSA-R.S. 14:95.1. Defendant was re-arraigned and pled guilty to the amended charge on April 21, 2010, pursuant to State v. Crosby, 338 So.2d 584 (La.1976). In accordance with the plea agreement, the trial judge sentenced defendant to five years imprisonment with the Department of Corrections. Defendant now appeals.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant challenges the trial court’s denial of his motion to suppress evidence. Defendant specifically argues that the deputies lacked reasonable suspicion to conduct a stop and further lacked probable cause to |sarrest him when he was trying to enter his apartment. In response, the State argues that the weapon was concealed, which prompted the legal stop and frisk pursuant to LSA-C.Cr.P. art. 215.1.

Deputy Keith Carroll of the St. John Parish Sheriffs Office testified at both the preliminary examination hearing and the suppression hearing regarding the circumstances surrounding the stop of defendant and the seizure of the weapon from him.

Officer Carroll testified that on October 8, 2008, sometime between 12:00 arid 2:00 p.m., he was patrolling in a marked unit in the 1200 block of Cambridge when he observed a burgundy suburban pull over. He then saw defendant exit the passenger side of the vehicle and walk to the nearby apartment complex. Deputy Carroll stated that when defendant got out of the vehicle, he observed defendant pulling up his pants, at which time the officer saw “the back-end like of a grip of a gun and like a metal slide.” Officer Carroll, who was about twenty feet from defendant, also observed defendant pulling his shirt over the gun.

At this point, Officer Carroll advised his partner and driver of the marked unit, Juan Navarro, of what he had seen. The officers then pulled over into the driveway, and when defendant noticed them, he tried to run into the apartment, but the door was locked. Deputy Carroll said that their weapons were drawn and they ordered him to get on the ground. According to Deputy Carroll, their weapons were drawn because when they ordered defendant to stop, he grabbed for his shorts. In addition, the officers ordered defendant to put his hands up, and he did not comply. Deputy Carroll said that defendant got on the ground and laid on his right side where the gun was on his person. They ordered defendant to get on his stomach and to place his hands out. Deputy Carroll’s partner got the gun, which was loaded, off of defendant’s side, and defendant was handcuffed.

14Peputy Carroll testified that defendant was detained for having the weapon, but that after they retrieved the weapon from him, they “ran his name” and learned he had two fugitive warrants. He was advised of his rights on the scene and then again at jail. Deputy Carroll testified that they learned he had a felony conviction after they got to jail. Defendant made a statement at jail and said he needed the gun for his protection because people were “out to kill him.”

After considering the evidence and arguments of counsel, the trial court, on December 17, 2009, issued a written judgment denying defendant’s motion to suppress evidence. The court found that the deputy had a reasonable belief that defendant was in possession of a concealed weapon, noting that it was a violation of LSA-R.S. 14:95 to carry a concealed weapon.

Defendant now challenges this denial claiming that the deputies lacked reasonable suspicion to conduct a stop and lacked probable cause to arrest him when he was trying to enter his apartment. Defendant argues that regardless of whether the officers’ actions of drawing their weapons, ordering defendant to stop, and handcuffing him constituted an investigatory stop or an arrest, the evidence should be suppressed. Defendant alleges that an officer cannot reasonably suspect someone of committing the crime of carrying a concealed weapon when the weapon is not concealed and cannot use such suspicion to justify an investigatory stop, detention, or arrest. Defendant contends that the only basis for arrest in this case was a potential concealed weapon charge and that because the gun was in plain view and sufficiently exposed to reveal its identity, the gun did not fall within the definition of a concealed weapon. For the reasons that follow, we find no merit to defendant’s arguments.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If | r,evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. War-rantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. State v. Leonard, 06-361 (La.App. 5 Cir. 10/81/06), 945 So.2d 764, 765.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Savoie, 09-103 (La.App. 5 Cir. 5/12/09), 15 So.3d 207, 212, writ denied, 09-1306 (La.2/5/10), 27 So.3d 297.

The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by LSA-C.Cr.P. art. 215.1, as well as by State and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The Terry standard, as codified in LSA-C.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. State v. Ayche, 07-753 (La.App. 5 Cir. 3/11/08), 978 So.2d 1143, 1148, writs denied, 08-2291 (La.1/30/09), 999 So.2d 752 and 08-1115 (La.2/13/09), 999 So.2d 1140.

In determining whether the police possessed the requisite minimal level of objective justification for an investigatory stop based on reasonable suspicion of criminal activity, reviewing courts must look at the totality of the circumstances of each case, a process which allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative | information available to them that might well elude an untrained person. State v. Boyer, 07-0476 (La.10/16/07), 967 So.2d 458, 469-70. Police do not have to observe what they know to be criminal behavior before investigating. The requirement is that the officers have a reasonable suspicion of criminal activity. State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988, 989. Reasonable suspicion is something less than probable cause to arrest. Rather, it requires that officers have sufficient knowledge of the facts and circumstances to justify an infringement of an individual’s right to be free of government interference. State v. Massey, 03-1166 (La.App. 5 Cir. 1/27/04), 866 So.2d 965, 968.

An officer’s mere unparticular-ized suspicion or “hunch” of criminal activity is insufficient to establish reasonable grounds to stop a person. State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073,1076. Factors that may support reasonable suspicion for an investigatory stop include an officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidents of crime. Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. State v. Ayche, 978 So.2d at 1149. In State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08), 998 So.2d 651, 656, this Court recognized that when evaluating the totality of circumstances, a defendant’s evasive conduct in response to police presence is a factor that is accorded significant weight.

In the present case, we find that the deputies had reasonable suspicion to justify an investigatory stop of defendant after observing the grip of a gun in defendant’s waistband and then observing defendant’s behavior after noticing the deputies.

In State v. Patterson, 588 So.2d 392, 394 (La.App. 4 Cir.1991), the defendant was convicted of being a convicted felon in possession of a firearm. The officers were in an unmarked police vehicle when they saw the defendant and |7another man sitting on the steps of a house that one of the officers knew was abandoned. When the defendant observed the officers’ car, he became fidgety, got up, walked toward an alley, pulled a gun from his waistband, and threw it under the house. The gun was retrieved while another officer detained the defendant. The Patterson court agreed with the defendant that mere nervousness or flight is insufficient for reasonable suspicion. However, it explained that the case involved more than “fidgety” actions because one of the officers saw the butt of a gun in the defendant’s waistband. The court determined that “[a]ll of the officers testified that even before the vehicle was pulled over the defendant was fumbling with his waistband. Given this testimony, it appears that the officers had reasonable cause for an investigatory stop.” State v. Patterson, 588 So.2d at 396.

In State v. Anderson, 08-456 (La.App. 5 Cir. 1/13/09), 8 So.3d 602, after the defendant was convicted of possession of a firearm by a convicted felon, this Court reviewed whether the officer had reasonable suspicion to conduct an investigatory stop. At trial, it was established that the officer was driving to work in an unmarked police vehicle one morning when he pulled up on the side of the vehicle the defendant was driving. The officer observed the defendant chambering a round into a firearm while driving with no hands on the wheel. The officer testified that even though he had not witnessed the defendant committing a specific crime, he stopped the defendant to investigate because he did not know if a crime had been committed or was about to be committed. In Anderson, 8 So.3d at 609, this Court concluded the following:

We cannot say that the trial court erred in finding that Detective Peterson had sufficient reasonable suspicion that a crime was being committed, had been committed, or was about to be committed to justify an investigatory stop. Detective Peterson did not have to observe what he knew to be criminal behavior before investigating but rather behavior he reasonably suspected may become criminal activity.

|sBased on the foregoing, we find that the officers had reasonable suspicion to conduct an investigatory stop after viewing the grip of a gun in defendant’s waistband and then seeing defendant try to run into the apartment after noticing the officers. Moreover, there was reasonable suspicion to believe defendant was committing an offense or about to commit an offense of concealing a weapon.

Defendant seems to suggest that the gun was not concealed and was in plain view. However, at the suppression hearing, Deputy Carroll testified that at one point the gun was concealed and covered by defendant’s shirt. It is irrelevant to our determination of reasonable suspicion that the gun was not concealed when initially observed, but then was concealed by defendant with his clothing.

In State v. Forest, 553 So.2d 935, 935-36 (La.App. 4 Cir.1989), the defendant pled guilty to being a convicted felon in possession of a firearm, reserving his right to contest the motion to suppress ruling under State v. Crosby. The defendant was arrested for carrying a concealed weapon and then later a computer check revealed a prior conviction. The officer in Forest was patrolling with his partner when he observed four subjects at around midnight standing in front of a bar at a place the officer described as a “known drug corner.” The officer saw what he thought was a handle of a small gun sticking out of the defendant’s right front pocket. The officer stopped his vehicle and detained the individuals. The court considered the issue of whether the initial stop of the defendant by the officers was based on reasonable suspicion that the defendant was carrying a weapon he intended to conceal. In Forest, the court decided that the only reasonable hypothesis supported by this evidence was that the defendant intended to have the weapon concealed and he accidentally allowed part of the weapon to be exposed. The court explained that it was unreasonable to assume |flthat this convicted felon intended to advertise that he was carrying a weapon at that time. The Forest court concluded there was probable cause for the arrest and the motion to suppress was properly denied.

In the present case, Deputy Carroll testified that when defendant got out of the vehicle, he observed defendant pulling up his pants, at which time the officer saw the grip of a gun in defendant’s waistband. He further testified that defendant was trying to fix his shirt over the gun as he walked to the apartment complex. After noticing the officers, defendant tried to run into an apartment, but the door was locked. Given the circumstances of this case and in light of the jurisprudence discussed herein, we find that the officers had reasonable suspicion to justify an investigatory stop of defendant.

Further, we find that the officers’ actions in drawing them weapons and handcuffing defendant did not elevate the encounter from an investigatory stop to an arrest. In State v. Morton, 993 So.2d at 657, this Court recognized that since police officers should not be required to take unnecessary risks in performing their duties, they are authorized to take such steps as are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terry stop. In Morton, this Court discussed the law regarding when the use of arrest-like features escalates an investigatory stop into an arrest requiring probable cause:

Inherent in the right of police to conduct a brief investigatory detention is also the right to use reasonable force to effectuate the detention. There is no question that the use of handcuffs incrementally increases the degree of force that is used in detaining an individual. However, arrest-like features such as the use of drawn weapons and handcuffs may, but do not invariably, render the seizure a de facto arrest. Therefore, when the State seeks to prove that an investigatory detection involving the use of handcuffs did not exceed the limits of a Terry stop, the State must show some specific fact or circumstance that could have supported a reasonable belief that the use of restraints was necessary to carry out the legitimate purpose of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm. If the added intrusion is not |inwarranted under particular circumstances, a Terry stop may escalate into a de facto arrest requiring probable cause to render it valid. State v. Porche, 06-0312 (La.11/29/06), 943 So.2d 335, 339-340. See also State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284, 1286-1287.

In the present case, defendant was observed with a gun, and when defendant noticed the deputies, he tried to get into an apartment. Under these circumstances, the officers were authorized to use reasonable force to effectuate defendant’s detention, including drawing their weapons and handcuffing defendant. Even though defendant was handcuffed after the gun was removed from his waistband, it appears reasonable that the deputies could have believed that defendant might have had another weapon on his person or could try to flee. In fact, defendant tried to flee into the apartment after noticing the deputies, and he also initially did not comply with the officers’ demands. For the protection of the officers and whoever may have been in the apartment complex, the handcuffing of defendant was a necessary safety precaution that was justified in effectuating the detention. Once it was learned that there were two fugitive warrants for defendant, the officers had probable cause to arrest him.

Based on the foregoing discussion, we find that the trial court did not err in denying defendant’s motion to suppress evidence. Accordingly, the arguments raised by defendant in this assigned error are without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant argues that his guilty plea was invalid because the trial judge failed to advise him of the correct sentencing range and failed to advise him that the sentence was required to be imposed without benefit of parole, probation, or suspension of sentence.

With regard to the correct sentencing range, defendant argues that there was no minimum penalty for the attempted offense, but he was told there was a | nmandatory minimum penalty of five years and a maximum penalty of seven and one-half years. He argues that the trial court was unaware of the correct sentencing range when sentencing defendant to five years, a sentence the judge believed was the mandatory minimum. He argues that the incorrect minimum penalty is also reflected in the waiver of rights form. As part of his argument, defendant further contends that the form failed to notify him that the sentence was required to be imposed without benefits. He argues his plea should be set aside because he entered into a plea agreement without knowing all of the ramifications of his plea.

The State responds that the penalty range was incorrect and suggests that the matter be remanded to the trial court for resentencing. However, as shown by the following discussion, a remand for resen-tencing is not warranted in this case.

Defendant pled guilty to attempted possession of a firearm by a convicted felon. At the time of defendant’s offense on October 8, 2008, LSA-R.S. 14:95.1(B) provided for a sentence of imprisonment at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and a mandatory fine of not less than one thousand dollars nor more than five thousand dollars. LSA-R.S. 14:27(D)(3) provided, at the time of the offense, that a person convicted of an attempted offense “shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fíne or imprisonment shall not exceed one-half of the largest fíne, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.”

As such, defendant faced a maximum sentence of seven and one-half years. At the time of the offense, the attempt statute did not require a minimum penalty, even though one was required for the completed offense. See State v. Chandler, 09-1286 (La.App. 3 Cir. 5/5/10), 36 So.3d 1086, 1088. However, the waiver of rights form and the transcript of the guilty plea colloquy reflect that defendant was | ^advised he faced a mandatory minimum penalty of not more than one-half of ten years and a maximum possible penalty of not more than one-half of fifteen years.

In this assignment, defendant also complains because the trial court failed to advise him that the sentence was required to be served without benefits. The penalty provision for possession of a firearm by a convicted felon mandated imposition of the statutory restrictions. The attempt statute pertinently provides that whoever attempts to commit a crime shall be punished in the same manner as for the offense attempted. Therefore, the defendant’s sentence for attempted possession of a firearm by a convicted felon in this case required imprisonment without benefit of probation, parole, or suspension of sentence. State v. Smith, 08-528 (La. App. 5 Cir. 1/13/09), 1 So.3d 802, 803-804. The waiver of rights form and the transcript of the guilty plea colloquy do not reflect that defendant was advised of the restriction of benefits. Defendant’s sentence was not imposed with restriction of benefits.

Defendant now contends that his guilty plea is invalid and should be set aside because he entered into a plea agreement without knowing all of the ramifications of his plea. For the reasons that follow, we find no merit to defendant’s argument.

LSA-C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty and the maximum possible penalty. Violations of LSA-C.Cr.P. art. 556.1 that do not rise to the level of Boy-kin violations are subject to harmless error analysis. State v. Guzman, 99-1528 and 99-1753 (La.5/16/00), 769 So.2d 1158, 1164-66; State v. Gilliam, 01-748 (La. App.13 5 Cir. 1/15/02), 807 So.2d 1024, 1027, writ denied, 02-0512 (La.11/1/02), 828 So.2d 562. The Louisiana Supreme Court has clearly held that the core Boykin constitutional requirements have never been extended to include advice with respect to sentencing. State v. Guzman, 769 So.2d at 1164. In determining whether a violation of Article 556.1 is harmless, the inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. State v. Gilliam, 807 So.2d at 1027.

In State v. Andrews, 33,079-33,082 (La. App. 2 Cir. 3/1/00), 755 So.2d 361, the defendant was charged with distribution of cocaine in four separate cases and pled guilty to charges of attempted distribution of cocaine pursuant to a plea agreement in which the State agreed to the reduced charges and agreed that the sentences would be served concurrently. The court accepted the guilty pleas and sentenced the defendant. The Andrews opinion does not reflect that a specific sentence was agreed to. In fact, on appeal, the defendant argued that his sentence was excessive. The court noted on error patent review that the trial court erred in advising the defendant that the minimum sentencing exposure he faced was two and one-half years at hard labor when there was no statutory mandatory minimum sentence in cases involving attempted drug offenses. The Andrews court concluded that under the circumstances, the court’s misstatement was harmless error and did not warrant any corrective action relative to the guilty plea or sentence.

In State v. Broadway, 40,569 (La.App. 2 Cir. 1/25/06), 920 So.2d 960, 963, the defendant argued that his guilty plea was involuntary because the court erred in failing to adequately apprise him of the sentencing range for the attempt crime to which he pled guilty. The Second Circuit noted that advice regarding sentencing 114exposure was not part of the core Boy-kin requirements and that moreover, the court advised the defendant of the agreed sentence, which satisfied the notice requirement of LSA-C.Cr.P. art. 556.1.

In State v. Shelton, 09-713 (La.App. 5 Cir. 3/9/10), 39 So.3d 601, the defendant argued that she should be allowed to withdraw her guilty plea because she was unaware prior to entering the plea that the law required the first two years of her sentence to be served without benefits. This Court noted that the court did not explicitly order the restriction of benefits for the first two years but explained that the restrictions were self-operating. This Court further explained that the Louisiana Supreme Court has ruled that courts may look beyond the guilty plea colloquy to an expanded record to determine whether a voluntary waiver of rights occurred. This Court determined that although the waiver of rights form did not specifically say the sentence would be without statutory benefits as to the first two years, the form did state that the restrictions were part of the maximum sentence allowed under the statute. This Court also noted that the defendant received a favorable plea bargain. This Court found that it did not believe that this appeared to have been a material factor affecting the defendant’s decision to plead guilty. Additionally, this Court concluded that the record showed that the defendant was thoroughly advised of her Boykin rights by the court and her attorney and that having found the guilty plea was knowing and voluntary, there were no constitutional grounds upon which to allow the defendant to withdraw her plea.

Any variance from the procedure required by Article 556.1 that does not affect the substantial rights of the accused shall not invalidate the plea. LSA-C.Cr.P. art. 556.1(E). In the present case, the waiver of rights form reflects that defendant knew he was pleading guilty to attempted possession of a firearm after being convicted of a felony. He indicated that he understood the nature of the |1scrime and that he faced a maximum penalty of not more than one-half of fifteen years. Defendant indicated that he understood that by pleading guilty he was waiving his right to plead not guilty and choose a trial by judge or jury, his right to confrontation, and his right to remain silent. He also indicated he was satisfied with how his counsel and the court had handled the case. The form also reflected that in accordance with the plea agreement he would be sentenced to 'five years with the “DOC.” Defendant also indicated that he was not forced, coerced, threatened, or promised anything in exchange for his plea. He indicated he understood the penalty and the possible legal consequences of pleading guilty and wished to plead guilty. Also, defendant indicated that his attorney read and explained the agreement to him in its entirety. The form was signed by defendant, his counsel, the judge, and the district attorney.

Further, during the colloquy, the transcript indicates that the trial judge addressed defendant’s educational background and asked defendant if he had any questions or difficulty filling out the form. Defendant indicated that he was not under the influence of drugs or alcohol at the time and did not know of any mental or physical impairments he had. The trial judge explained the offense and stated what the mandatory minimum penalty and the maximum penalty would be. The judge indicated, although mistakenly, that the minimum penalty was one-half of ten years. He also advised defendant that the maximum penalty was one-half of fifteen years. He was advised of his Boykin rights and indicated he understood the rights he was waiving. During the colloquy, defendant also indicated that he had discussed sentencing with his attorney. He indicated that he was not forced, threatened, or coerced, and that he had no questions. The trial judge then accepted his plea.

|1fiIn the present case, defendant was thoroughly advised of his Boykin rights, and the record indicates that his plea was knowingly and voluntarily made. Further, defendant received a favorable plea bargain, and the sentence imposed was in accordance with the plea agreement. Accordingly, we find that the failure to properly advise defendant of the minimum sentence he faced and of the mandatory restriction of benefits was harmless error.

Based on the foregoing discussion, this assigned error is without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors that require corrective action.

Accordingly, for the reasons set forth herein, defendant’s conviction and sentence is hereby affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Although the trial judge failed to specify that the sentence was to be served without benefit of parole, probation, or suspension of sentence, under LSA-R.S. 15:301.1 and State v. Williams, 00-1725 (La.l 1/28/01), 800 So.2d 790, the sentence is deemed to contain these restrictions without corrective action. See State v. Mourra, 06-133 (La.App. 5 Cir. 8/29/06), 940 So.2d 29, 33 n. 5.


source: Caselaw Access Project

author: McDonald, j.

license: Public Domain

text:
    Camille LAFORTE d/b/a Chase Marine and AXA Re Property and Casualty Insurance Company v. GULF ISLAND FABRICATION, INC.
    No. 2010 CA 1605.
    Court of Appeal of Louisiana, First Circuit.
    May 3, 2011.
    Rehearing Denied June 8, 2011.

      Gilbert V. Andry, IV, New Orleans, LA, D. Steven Wanko, Slidell, LA, for Plaintiffs/Appellees Camille Laforte, d/b/a Chase Marine, and AXA Re Property and Casualty Insurance Company.
    ' Sidney W. Degan, III, R. Edward Blanchard, Travis L. Bourgeois, New Orleans, LA, for Defendant/Appellant Engineering Corporation of Louisiana, Inc.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McDonald, j.

|2On May 10, 2003, the M/V MR. C., owned by Camille Laforte d/b/a Chase Marine (Camille Laforte), was operating as a stand-by utility vessel for an oil-production platform owned by Stone Energy Corporation (Stone Energy), in Eugene Island Block 243 in the Gulf of Mexico. The captain, George Griffin, was attempting to pick up a crewman that he had dropped off earlier at the Stone Energy D-243 platform.

As the M/V MR. C. approached the D-243 platform, Captain Griffin backed the boat aside the D-243 platform, which was 20 feet away from a D-Aux platform. The D-Aux platform, which was not intended for docking, and was accessible to the D-243 platform by a walkway, had padeyes, seven-inch long protrusions located five feet below sea level, used for transporting the D-Aux platform. The padeyes were not visible from the surface. Unbeknownst to Captain Griffin, the M/V MR. C. made contact with one of the padeyes on the D-Aux platform during the docking.

The crewman boarded the M/V MR. C. and it departed, heading for a main platform elsewhere. Within minutes, the bilge alarm sounded, and the vessel began taking on water from a split in the starboard side of the hull. The M/V MR. C. sank within a short period of time. No one was injured. A Coast Guard investigation determined that Captain Griffin was completely at fault for the accident.

Thereafter, AXA Re Property and Casualty Insurance Company (AXA Re Insurance), the hull insurer of the M/V MR. C., paid the policy proceeds to Camille La-forte. Camille Laforte and AXA Re Insurance (collectively the plaintiffs) then filed suit for damages on May 11, 2004, against Gulf Island Fabrication (Gulf Island), which built the D-Aux platform, and on June 9, 2006, added as a defendant Engineering Corporation of Louisiana (ECL), which designed the D-Aux platform.

|sOn March 17, 2006, Gulf Island filed a motion for summary judgment, asserting that it had fabricated the platform, which included the 2-well braced caisson jacket, deck, and piling, for Eugene Island 243 D in accordance with the drawings and specifications, and that Stone Energy had inspected and accepted the work, thereby transferring the responsibility for and ownership of the structure to Stone Energy. Gulf Island asserted that plaintiffs had failed to produce any evidence or expert opinion that the fabrication was faulty. Further, Gulf Island asserted that the padeyes were utilized as lifting points for placing the well jacket, and that once the jacket was placed on the dock barge, its ownership and control vested in Stone Energy. Only Stone Energy, Gulf Island asserted, could then decide whether to remove the padeyes, or to leave them intact in the event the platform had to be moved again. Thus, Gulf Island asserted, there was no evidence that the padeye at issue was defectively designed or unreasonably dangerous, and summary judgment should be granted in its favor.

Thereafter, the trial court determined there was no evidence that the padeye was defectively designed or was dangerous, and granted summary judgment in favor of Gulf Island, dismissing the plaintiffs’ suit against Gulf Island.

The case later went to trial against the remaining defendant, ECL. After a trial on the merits, the trial court ruled in favor of the plaintiffs. In its reasons for judgment, the trial court found there was no fault on the part of Captain Griffin, and that ECL should have reasonably anticipated that there would be vessel activity in close proximity and possible contact with the D-Aux platform, and that ECL had a duty to warn of the underwater padeye. Further, the trial court found that the duty to warn was within the scope of protection afforded by the duty breached, and that the breach of the duty to warn caused the M/V MR. C. to sink. Finding that the accident was entirely the fault of ECL, the trial court awarded judgment in favor of AXA Re Insurance and against ECL in the amount that AXA |4Re Insurance paid under its policy, $486,435.33; and awarded judgment in favor of Camille Laforte and against ECL in the amount of Camille Laforte’s insurance deductible, $150,000.00.

ECL is appealing that judgment, and asserts four assignments of error. Also, ECL filed an exception of prescription with this court. The assignments of error are as follows:

1. The trial court erred in failing to deem the plaintiffs’ claims prescribed.
2. The trial court erred in faffing to apply the law of the case holding that there was no evidence that the padeye was defectively designed or unreasonably dangerous.
3. The trial court erred in finding ECL liable for the plaintiffs’ damages, whether through the working of the LPLA, under the Louisiana law of negligence, ' or negligence under maritime law.
4. The trial court erred in faffing to find Laforte solely or partially at fault for causing the plaintiffs’ damages.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, ECL asserts that the trial court erred in failing to find that the plaintiffs’ claims had prescribed. The 1WV MR. C. sank on May 10, 2003. The plaintiffs filed suit against Gulf Island on May 11, 2004. The plaintiffs then filed a supplemental and amending petition adding ECL as a defendant on June 9, 2006, more than three years after the sinking of the vessel. ECL asserts that all of the plaintiffs’ theories of liability are based on tort law, thus, they are subject to a one-year prescriptive period, under La. C.C. art. 3492, or three years under general maritime law, citing Bellamy v. Garber Bros., Inc., 472 So.2d 194, 196 (La.App. 4th Cir.1985) and Flowers v. Savannah Machine & Foundry Co., 310 F.2d 135, 138-139 (5th Cir.1962). ECL further asserts that the petitions do not allege solidary liability on the part of ECL and Gulf Island, and that there is no solidarity, thus the filing adding ECL is not timely.

|fiThe peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision. La. C.C.P. art. 928. ECL pleaded the exception of prescription in its answer, and the trial court denied the exception implicitly by proceeding to trial on the merits. ECL also filed an exception of prescription with this court.

The burden of proof is normally on the party pleading prescription; however, if on the face of the petition it appears that prescription has run, as in this case, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period. Furthermore, if the plaintiffs basis for claiming interruption of prescription is solidary liability between two or more parties, then the plaintiff bears the burden of proving that solidary relationship. Younger v. Marshall Industries, Inc., 618 So.2d 866, 869 (La.1993).

As explained in Renfroe v. State of Louisiana ex rel. Dept. of Transp. and Development, 01-1646, p. 4 (La.2/26/02), 809 So.2d 947, 950:

[T]he interruption of prescription by suit against one solidary obligor is effective as to all solidary obligors. La. C.C. arts. 1799 and 3503. The same principle is applicable to joint tortfeasors. La. C.C. art. 2324 C. However, a suit timely filed against one defendant does not interrupt prescription as against other defendants not timely sued, where the timely sued defendant is ultimately found not liable to plaintiffs, since no joint or solidary obligation would exist. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992).

In this case, since the timely sued defendant, Gulf Island, was dismissed from the suit, prescription against ECL is not interrupted and the plaintiffs’ suit against it has prescribed, unless some other basis to revive this suit is found. See Renfroe, 01-1646 at p. 4, 809 So.2d at 950.

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the | fioriginal pleading. La. C.C.P. art. 1153. Thus, we look to Ray v. Alexandria Mall, through St. Paul Property and Liability Ins., 434 So.2d 1083, 1087 (La.1983), wherein the Louisiana Supreme Court established four criteria for determining whether La. C.C.P. art. 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition,

(1)The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

As to the first criteria, the amended claim clearly arose out of the same transaction or occurrence set forth in the original pleading. The amended pleadings merely added ECL to the suit, as the designer of the platform, asserting the same products liability as asserted in the original petition against Gulf Island, as the manufacturer of the platform.

As to the second criteria, we look to see whether ECL received notice of the institution of the suit such that it would not be prejudiced in maintaining a defense on the merits of the case. ECL asserts that it was never given any notice of the lawsuit until it was named as a defendant in the supplemental and amending petition. As noted in Renfroe, 01-1646 at p. 5, 809 So.2d at 951, notice of the accident is not the same as receiving notice of the institution of the lawsuit.

In his memorandum in opposition to the exception of prescription, Camille Laforte asserts that “ECL was not prejudiced and has never alleged that it was [7prejudiced. ECL knew that if Plaintiff had known of ECL at the time of original filing as opposed to learning of ECL through discovery, that ECL would have also been an original defendant. Finally, ECL knew that the design and manufacture of the subject rig with padeye was at issue from the beginning.” Camille Laforte then asserts that interruption of prescription against one joint tortfeasor is effective against all toiifeasors, relying upon La. C.C. art. 2324, which we have already explained does not apply herein as there is no joint liability when one party has been dismissed from the suit. Camille Laforte does not point out any evidence in the record showing that ECL knew of the lawsuit prior to being added as a defendant on June 9, 2006. However, even if ECL knew of the lawsuit prior to being added as a defendant, we find that the third and fourth criteria, below, were not met.

The third criteria, that the purported substitute defendant must know or should have known that but for a mistake con- ceming the identity of the proper party defendant, the action would have been brought against him, is clearly not met in this case either. There was no mistaken identity, as in the Ray case, when the plaintiff filed suit against “Alexandria Mall” rather than the “Alexandria Mall Company.” See Ray, 434 So.2d at 1087.

As to the fourth criteria, the substitute defendant may not be a wholly new or unrelated defendant. ECL is clearly a wholly new and unrelated defendant from Gulf Island. As the court in Renfroe points out, “the Ray criteria seek ‘to prevent injustice to plaintiffs who mistakenly named an incorrect defendant, at least when there was no prejudice to the subsequently named correct defendant.’ ” Ren-froe, 01-1646 at p. 8, 809 So.2d at 952.

Thus, we find that the four criteria required to be met in order for the amended petition to relate back to the date of the filing of the original petition naming Gulf Island as a defendant are clearly not all met in this case. Therefore, |8the exception of prescription filed by ECL must be maintained, and the judgment against it vacated. Accordingly, we need not address the remaining assignments of error.

For the foregoing reasons, the exception of prescription filed by ECL is maintained, and the trial court judgment dated December 21, 2009, in favor of Camille Laforte against ECL, and in favor of AXA Re Insurance against ECL, is vacated. Costs of this appeal are assessed one-half against Camille Laforte and one-half against AXA Re Insurance.

EXCEPTION OF PRESCRIPTION MAINTAINED; TRIAL COURT JUDGMENT VACATED.

      . There is no judgment on ECL’s exception of prescription in the record.


text:
    Ronald F. BROUSSARD, Jr. v. DIAMOND AIRCRAFT INDUSTRIES, INC. and Premier Aircraft Sales, Inc.
    No. 2010 CA 1611.
    Court of Appeal of Louisiana, First Circuit.
    May 3, 2011.

      Robert D. Hoffmann, Jr., Covington, LA, for Plaintiff/Appellant Ronald F. Broussard, Jr.
    William J. Joyce, Sara C. Valentine, Eric Michael Liddick, New Orleans, LA, for Defendant/Appellee Diamond Aircraft Industries, Inc.
    Kenneth H. Laborde, Brendan P. Do-herty, New Orleans, LA, for Defendant/Appellee Premier Aircraft Sales, Inc.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McDonald, j.

| üPlaintiff-Appellant Ronald F. Brous-sard, Jr. (Broussard) appeals the trial court’s judgment rendered in favor of Defendant-Appellee Diamond Aircraft Industries, Inc. (Diamond) sustaining Diamond’s declinatory exception for lack of personal jurisdiction. The sole issue before this court is whether the assertion of personal jurisdiction by Louisiana over Diamond meets the requirements of due process. Finding that these requirements are not met, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendant-Appellee Diamond, a Canadian corporation with its principal place of business in London, Ontario, Canada, manufactures aircrafts and sells these planes strictly to brokers such as Premier Aircraft Sales, Inc., a Florida corporation. On or about November 13, 2007, Premier purchased a Diamond DA-40 aircraft from Diamond. The sale took place in London, Ontario, Canada, the funds for the sale were sent by wire transfer to Diamond’s bank in Ontario, and the aircraft was delivered to Premier in Ontario.

Plaintiff-Appellant Ronald F. Broussard purchased said aircraft from Premier on June 2, 2008, for the price of $337,500.00. This sale took place in Florida although the plane was stored in Alabama. On the date of delivery, Premier flew the plane from Alabama to Louisiana, where it picked up Broussard and flew him to Texas for training on the aircraft. Broussard alleges that within months of purchasing the aircraft, the aft passenger door on the port side began to develop cracks caused by a defect. Plaintiff-Appellant claims that, because of this aircraft’s configuration, the absence of a fully functional aft passenger door renders the aircraft a two-seater rather than a four-seater.

As a result, this suit was instituted by Broussard against Diamond Aircraft Industries, Inc. and Premier Aircraft Sales, Inc. In his original brief, Plaintiff-Appellant alleges that the cracks which developed in the aft door of the Diamond |SDA-40 aircraft caused the plane to depreciate in value, forced it to suffer substantial downtime, and rendered it incapable of being used as its intended purpose as a four-seater aircraft for business purposes.

Both Diamond and Premier made special appearances contesting lack of personal jurisdiction. On November 2, 2009, Broussard filed a motion to voluntarily dismiss Premier without prejudice. This motion was granted on November 4, 2009, and defendant Premier was dismissed from the present litigation. Diamond filed its declinatory exception for lack of personal jurisdiction on January 25, 2010. In support of its motion, Diamond submitted an affidavit by the president of Diamond Aircraft, Peter Maurer, who attested that Diamond is a Canadian corporation with its principal place of business in London, Ontario, Canada. Diamond is not currently, nor has it ever been registered to do business in Louisiana. Diamond does not now, nor did defendant at any pertinent time, own, rent, or lease any property in Louisiana, have employees in Louisiana, pay taxes in Louisiana, direct marketing activities in or to Louisiana, or make any significant business purchases or apply for loans in Louisiana. After considering the memoranda filed, evidence, and oral arguments of counsel, the Twenty-Second Judicial District Court sustained the exception for lack of personal jurisdiction over Diamond, dismissing Broussard’s claims. This appeal by Broussard followed.

LAW

An appellate court uses a de novo standard of review in determining the legal issue of personal jurisdiction over a non-resident by a Louisiana court. Babcock & Wilcox Company v. Babcock Mexico, 597 So.2d 110, 112 (La.App. 4th Cir.), writ denied, 600 So.2d 679 (La.1992). The Louisiana laws regarding personal jurisdiction have been amended and changed through the years as a result of court decisions and legislation. See e.g. Ruckstuhl v. Owens Corning Fiberglas Corp., 98-1126 (La.4/13/99), 731 So.2d 881, cert. denied, 528 U.S. 1019, 120 S.Ct.4 526, 145 L.Ed.2d 407 (U.S.1999); La. R.S. 13:3201. The Louisiana Supreme Court in Petroleum Helicopters, Inc. v. Avco Corporation, 513 So.2d 1188 (La.1987), referencing the more traditional view of personal jurisdiction, stated:

The determination of the validity of a state court’s assertion of personal jurisdiction over a nonresident under a long-arm statute generally involves a two-step analysis. The state statute must provide authority for the court to exercise personal jurisdiction over the nonresident in the particular litigation, and there must be sufficient contacts between the defendant, the litigation and the forum state so as not to offend traditional notions of due process.

Petroleum Helicopters, Inc., 513 So.2d at 1189 (footnote omitted).

The Louisiana long-arm statute, La. R.S. 13:3201, was amended in 1987 to include subsection B, which mandates that in addition to the provisions of subsection A, “a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.” La. R.S. 13:3201 B. The Louisiana Supreme Court, citing the official comments to the act, stated that Section B was added in 1987 “to ensure that jurisdiction under the long-arm statute extended to the limits allowed by due process.” Southeast Wireless Network, Inc. v. U.S. Telemetry Corp., 06-1736, p. 4 (La.4/11/07) 954 So.2d 120, 124. In Fox v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 576 So.2d 978 (La.1991), the Supreme Court stated that “[sjince the 1987 amendment to LSA-R.S. 13:3201, the sole inquiry in Louisiana into jurisdiction over a nonresident is whether the assertion of jurisdiction complies with constitutional due process, (citation omitted). The limits of the Louisiana long arm statute and the limits of constitutional due process are coextensive and therefore, if the assertion of jurisdiction meets the constitutional requirements of due process, the assertion of jurisdiction is authorized under the long arm statute.” Fox, 576 So.2d at 983.

|sThis due process requirement has evolved into a two-part test by which: 1) “the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice;” and 2) “[o]nce minimum contacts are established, these contacts may be considered in light of other [fairness] factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ ” Southeast Wireless Network, 954 So.2d at 124-125 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985)). Thus, after the plaintiff meets his burden of proving that such minimum contacts exist, the burden then shifts to the defendant to prove that the “assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts.” de Reyes v. Marine Mgt. and Consulting, Ltd., 586 So.2d 103, 107 (La.1991).

The minimum contacts prong of the two-part due process test is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” A & L Energy, Inc. v. Pegasus Group, 00-3255, p. 5 (La.6/29/01), 791 So.2d 1266, 1271, cert. denied, 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 (2001) (citations omitted). However, this purposeful availment must be such that the defendant “should reasonably anticipate being haled into court in the forum state.” Id. The rationale behind the “purposeful availment” requirement is to ensure that the nonresident defendant will not be haled into a jurisdiction solely as a result of a random, fortuitous, or attenuated contact, or by the unilateral activity of another party or a third person. Id. Put another way, the requirement of minimum contacts can be seen to perform two related, but distinguishable, functions: “[it] protects the defendant against the burdens of | ^litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (U.S.1980).

Specific and General Jurisdiction

In interpreting the due process clause, the United States Supreme Court has recognized a distinction between two types of personal jurisdiction — “general” and “specific” jurisdiction. See Burger King Corp., 471 U.S. at 473, n. 15, 105 S.Ct. at 2182, n. 15; see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (U.S.1984). “It has been said that when a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum, the State is exercising ‘specific jurisdiction’ over the defendant.” Id. at n. 8. But when a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum, the State has been said to be exercising “general jurisdiction” over the defendant. Id. at n.9.

DIAMOND’S CONTACTS

The evidence presented in the record reveals that Diamond does not have sufficient minimum contacts to satisfy the requirements for specific jurisdiction, and even less so for general jurisdiction. In fact, the record suggests that Diamond does not have any contacts with the forum aside from a minimum number of its manufactured planes ending up in the state. To reiterate, Diamond is a Canadian Corporation with a principal place of business in London, Ontario, Canada. Diamond is not currently, nor has it ever been registered to do business in Louisiana. Diamond does not now, nor did Diamond at any pertinent time, own, rent, or lease any property in Louisiana, have employees in Louisiana, pay taxes in Louisiana, direct marketing activities in or to Louisiana, or make any significant |7business purchases or loans in Louisiana. Diamond sold the plane in Ontario, Canada to Premier, a Florida corporation. The plane was delivered to Premier in Canada. Broussard purchased the plane from Premier in Florida. Therefore, nothing in the record suggests that Diamond had substantial minimum contacts with Louisiana such that it “purposefully avail[ed] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” A & L Energy, Inc., 791 So.2d at 1271.

If the plaintiff had established minimum contacts, the burden would switch to the defendant to show that the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts. See A & L Energy, Inc., 791 So.2d at 1270-1271. However, based on the evidence in the record, Broussard failed to carry his burden of proof. Because no such substantial minimum contacts have been established to satisfy the due process requirements for asserting personal jurisdiction over Diamond, an analysis of the fairness factors would be moot.

For the foregoing reasons, the March 24, 2010, judgment of the trial court sustaining Diamond’s declinatory exception for lack of personal jurisdiction is affirmed. The motion to remand and motion for new trial is denied. Costs of this appeal are assessed against the Plaintiff-Appellant, Ronald F. Broussard, Jr.

AFFIRMED.


author: EDWIN A. LOMBARD, Judge.

text:
    Hazel E. COOLEY, et al. v. ACADIAN AMBULANCE, et al.
    No. 2010-CA-1229.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 2011.

      Harley M. Brown, Baton Rouge, LA, Mark D. Plaisance, Baker, LA, for Plaintiffs/Appellants.
    William M. McGoey, Chalmette, LA, for St. Bernard Parish Government.
    Robert I. Siegal, Tara E. Clement, Gieger Laborde & Laperouse, LLC, New Orleans, LA, for American Alternative Insurance Corporation.
    Richard J. Petre, Jr., James D. Bayard, Onebane Law Firm, Lafayette, LA, for Clarendon National Insurance Company.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

11Plaintiffs, Hazel E. Cooley, Betty E. LeBlanc, and Sally Viada, appeal the granting of summary judgment in favor of St. Bernard Parish Government, American Alternative Insurance Corporation, and Clarendon National Insurance Company pursuant to statutory immunity under La. Rev.Stat. 29:735, the Louisiana Homeland Security and Emergency Assistance and Disaster Act. For the following reasons, we affirm.

Factual and Procedural History

Plaintiffs are the siblings of Russell Em-bry and daughters of Dorothy R. Hingle, both of whom tragically drowned in their home in St. Bernard Parish on August 29, 2005, during Hurricane Katrina. Russell Embry had been confined to his bed as a result of severe brain damage that he had suffered over thirty years prior to Hurricane Katrina. Ms. Hingle, 83, Mr. Em-bry’s mother, was his registered caregiver. As a result of his condition, Mr. Embry and his mother had qualified for an evacuation assistance program for disabled and homebound residents in the event of a hurricane or other catastrophic event.

This evacuation assistance program was established and funded by a federal community services block grant to the St. Bernard Parish Government, and was administered by its Human Resources Division. The Human Resources Division Rwas charged with registering citizens who qualified for evacuation assistance and compiling a list known as the “Special Needs List.” On May 4, 2004, St. Bernard Parish and Acadian Ambulance Services, Inc. executed a “Contract for Emergency and Non-Emergency Ground Ambulance Services for the Parish of St. Bernard.” Under this contract, Acadian was obligated to perform the emergency evacuations of the citizens registered on the Special Needs List.

Mr. Embry and Ms. Hingle had routinely registered for the Special Needs List of evacuation assistance, and had been evacuated under the program on previous occasions during impending storms. They had registered for the 2005 hurricane season on June 20, 2005. The registration contained Mr. Embry’s name and stated his condition. Ms. Hingle was listed as his caregiver. Their registration sheet indicated that they both required evacuation in the event of an emergency.

On Friday, August 26, 2005, Governor Kathleen Babineaux Blanco issued Proclamation No. 48 KBB 2005, declaring a statewide state of emergency as a result of the impending Hurricane Katrina. In the early morning of Saturday, August 27, 2005, a state of emergency was issued locally in St. Bernard Parish. To execute their contractual relationship with St. Bernard for emergency evacuations, Acadian Ambulance retained Janie Fuller to assist St. Bernard Parish Government with making calls to persons on the special needs list to confirm the need for transportation. Within hours, phone calls were made to all citizens on the special needs list. Phone records indicate that Ms. Hingle received a call from St. Bernard Human Resources at 10:25:55 a.m. on Saturday, August 27, 2005. Ms. Fuller forwarded the Special Needs List and all relevant information to Acadian’s dispatch office. Unfortunately, by the afternoon of Sunday, August 28, 2005, Acadian called Ms. Hingle to inform her that Acadian had ceased operations in St. |.^Bernard. Both parties indicate that Acadian had attributed the ceasing of their operations to high winds as well as the closure of the Louisiana Superdome as a special needs shelter. Ms. Hingle made several calls thereafter seeking evacuation assistance, but to no avail. On August 29, 2005, Mr. Embry and Ms. Hingle drowned in their home.

Plaintiffs filed this lawsuit on August 23, 2006, naming Acadian Ambulance and St. Bernard Parish Government as defendants, as well as yet-unknown insurance companies providing coverage to Acadian and St. Bernard Parish Government. Plaintiffs alleged wrongful death of Mr. Embry and Ms. Hingle against St. Bernard Parish Government, as well as survival claims related to fear of drowning and fear of death. Plaintiffs also alleged negligence in prohibiting the operation of ambulance services by anyone other than Acadian Ambulance and negligence in failing to evacuate Mr. Embry and Ms. Hin-gle. Plaintiffs later filed a supplemental and amending petition naming American Alternative Insurance Corporation (hereafter “AAIC”) as defendant in its role as an insurer to St. Bernard Parish Government.

On March 16, 2007, St. Bernard Parish Government filed a motion for summary judgment, arguing that it is afforded immunity in the execution of emergency sendees under the Louisiana Homeland Security and Emergency Assistance and Disaster Act, namely La. Rev. Stats. 29:722 and 29:735. On April 26, 2007, AAIC also filed for summary judgment merely arguing that if St. Bernard Parish is immune from liability, there can be no recovery against it. Plaintiffs opposed these motions, arguing that St. Bernard Parish Government has |4not submitted any evidence that an emergency was properly declared, and has not provided evidence as to whether any efforts were made to transport the evacuees.

On May 21, 2007, plaintiffs filed an additional supplemental and amending petition naming Clarendon National Insurance Company as a defendant providing insurance coverage to St. Bernard Parish Government. On June 25, 2007, the trial court issued a judgment dismissing St. Bernard Parish Government and AAIC’s motion for summary judgment without prejudice, reserving the rights of all parties to later reassert summary judgment. This was done to presumably allow more discovery on the substantive issues in the case.

On August 22, 2008, St. Bernard Parish Government filed a second motion for summary judgment, stating that “[t]he parties have conducted additional discovery, and the discovery shows that there is no genuine issue of material fact and Human Resources is entitled to judgment as a matter of law.” St. Bernard Parish Government re-urged that it has immunity under the Homeland Security and Emergency statutes, and that Acadian simply failed to perform their duties of evacuating citizens on the special needs list. In support of summary judgment, St. Bernard Parish Government attached a declaration of State of Emergency dated August 27, 2005. The declaration was signed by Mr. Danny Menesses, the Chief Administrative Officer of St. Bernard Parish Government.

AAIC also re-urged summary judgment, attaching as evidence the policy declarations page signifying St. Bernard Parish Government as the named insured. By this time, numerous additional corporate depositions of Acadian personnel had taken place. Clarendon also filed a motion for summary judgment also arguing that they must be dismissed if St. Bernard Parish Government is held immune from liability. This second round of summary judgment motions were opposed by |sAcadian as well as plaintiffs, who challenged the constitutionality of the Homeland Security and Emergency immunity statutes.

In a judgment dated December 10, 2008, incorporated with extensive written reasons for judgment, the trial court granted summary judgment in part to St. Bernard Parish Government for all acts committed after the declaration of the state of emergency of August 27, 2005, “reserving acts of willful misconduct properly pleaded by amendment to Plaintiffs’ Petition and due proof advanced in the event of a further Motion for Summary Judgment when discovery is more complete.” The trial court further wrote:

This relief does not prevent or preclude the governmental agencies to present proof of a state of emergency condition existing earlier than the declaration and acts taken in furtherance of emergency preparedness for which immunity may apply, on further showing of such entitlement ...
... the portion of the governmental entities’ Motion for Summary Judgment for governmentál immunity for acts done prior to the emergency declaration is deferred until the compelled discovery is complete.

In this same judgment, the trial court also denied AAIC and Clarendon’s motions for summary judgment. A supervisory writ disposition from this Court, 2009-C-0064, states that the trial court apparently later granted a motion for new trial whereby it changed course and granted summary judgment in favor of Clarendon on February 13, 2009. The trial record, though, does not contain this judgment.

On February 25, 2009, Clarendon filed another motion for summary judgment, arguing this time that the policy at issue does not provide coverage for the acts alleged. On June 1, 2009, AAIC, as insurer of St. Bernard Parish Government, filed another motion for summary judgment. AAIC attached | (¡deposition testimony of St. Bernard officials who testified that the Special Needs List was properly sent and made available to Acadian Ambulance, as well as continuing to argue for complete immunity for emergency preparations at all times, during Hurricane Katrina’s approach and beyond. AAIC further argued that plaintiffs have not been able to present any evidence of willful misconduct on the part of St. Bernard Parish Government officials.

On June 11, 2009, plaintiffs filed a Motion for Partial Dismissal, indicating that they had reached an amicable settlement with Acadian Ambulance and their insurers, AAIC (as Acadian’s insurer only) and Evanston Insurance Company. An order of dismissal was signed by the trial court on June 11, 2009, dismissing plaintiffs’ claims against Acadian, as well as claims against St. Bernard Parish Government and its insurers “with prejudice to the extent that those claims arise from or are in any way related to the Contract for Emergency and Non-Emergency Ground Ambulance Services between Acadian and the Parish of St. Bernard.”

In a judgment dated August 5, 2009, the trial court denied Clarendon’s latest motion for summary judgment, finding no merit in Clarendon’s argument that their coverage was only provided to the Human Resources Division and not St. Bernard Parish Government. The court found that St. Bernard Parish Government had absorbed all functions of the since defunct Human Resources Division. The trial court also denied AAIC’s motion for summary judgment, stating that further discovery was required concerning possible willful misconduct and whether immunity could be granted for actions taken before the declaration of state of emergency.

The remaining defendants filed for summary judgment again in September 2009. By this time additional depositions had been taken, including depositions of |7Janie Fuller and Sherri Baiamonte, the director of the St. Bernard Human Resources Division at the time of Hurricane Katrina. Plaintiffs filed a contradictory motion for summary judgment on September 28, 2009, arguing that the state emergency of August 27, 2005 had not been properly declared.

A hearing on these motions for summary judgment took place on February 18, 2010. The trial court held that the immunities of the Homeland Security Act are applicable for all times relevant to emergency preparations for Hurricane Katrina, not merely for actions after the August 27, 2009 declaration of emergency. The trial court held that a declaration of emergency was not necessary for the immunities to apply. The trial court further held that the immunity statute was constitutional. Summary judgment was granted to St. Bernard Parish Government as well as Clarendon and AAIC as its insurers. A judgment was executed on May 26, 2010, and this appeal timely followed.

Standard of Review; Summary Judgment Standard

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate, i.e., “whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, Inc., 2007-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. A fact is material “if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute.” Hines v. Garrett, 2004-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that |8mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966(B). The burden of proof on a motion for summary judgment remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La.Code Civ. Proc. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. In defending against a well-taken motion for summary judgment, the plaintiff may not rely upon the allegations contained in his pleadings, simply speculate, or otherwise posit the hypothetical existence of a genuine issue of material fact. Kelly v. AME Janitorial Services Co., 2009-1167, p. 5 (La.App. 4 Cir. 3/3/10), 33 So.3d 358, 361.

Assignments of Error

Plaintiffs first argue that the trial court erred in granting summary judgment to St. Bernard Parish Government because it failed to timely evacuate Mr. Embry and Ms. Hingle. Plaintiffs further argue that the immunity should apply only to actions taken after the declaration of emergency, and that there is a genuine issue of material fact as to whether St. Bernard Parish Government acted negligently prior to the declaration in their failure to timely evacuate. Secondly, plaintiffs contend that a state of emergency can only be declared by the parish president, while the emergency declared during Hurricane Katrina was signed by St. Bernard Parish’s Chief Administrative Officer, Danny Menesses. Plaintiffs therefore argue | nthat the declaration of emergency is invalid.

Next, plaintiffs aver that the failure of St. Bernard Parish to follow its own evacuation procedures constitutes willful misconduct. Finally, plaintiffs argue that St. Bernard Parish Government had a non-delegable duty to evacuate special needs persons in the event of emergencies.

Emergency Preparedness Immunity

The Louisiana Homeland Security and Emergency Assistance and Disaster Act, La.Rev.Stat. 29:721, et seq., was enacted for the following purposes:

[bjecause of the existing possibility of the occurrence of emergencies and disasters of unprecedented size and destructiveness resulting from terrorist events, enemy attack, sabotage, or other hostile action, or from fire, flood, earthquake, or other natural or manmade causes, and in order to ensure that preparations of this state will be adequate to deal with such emergencies or disasters, and in order to detect, prevent, prepare for, investigate, respond to, or recover from these events, and generally to preserve the lives and property of the people of the state of Louisiana,.... La. Rev.Stat. 29:722(A).

A provision for immunity from negligence for the state and its political subdivisions and agencies was also incorporated into the Act. La.Rev.Stat. 29:735(A)(1) provides:

Neither the state nor any political subdivision thereof, nor other agencies, nor, except in case of willful misconduct, the agents’ employees or representatives of any of them engaged in any homeland security and emergency preparedness activities, while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons or damage to property as a result of such activity, (emphasis added).

In a very recent case stemming from Hurricane Katrina and concerning this immunity statute, this Court held:

Imlt is clear from the language of the statute that the state and its political subdivisions and agencies are entitled to total immunity. Liability on the part of directors and/or heads and other employees of these political subdivisions or agencies can only be found in cases of willful misconduct.

Freeman v. State of Louisiana, 2007-1555, pp. 5-6 (La.App. 4 Cir. 4/2/08), 982 So.2d 903, 908. Because St. Bernard Parish Government is entitled to complete immunity from liability in its emergency preparedness activities under La.Rev.Stat. 29:735, and because plaintiffs have not presented any evidence in the face of summary judgment that St. Bernard Parish Government engaged in willful misconduct, we find that the trial court correctly granted summary judgment to St. Bernard Parish Government and its insurers. Therefore, we affirm the judgment of the trial court in entering summary judgment in favor of St. Bernard Parish Government as well as AAIC and Clarendon as its insurers.

Law and Analysis

First, contrary to plaintiffs’ contention, there is no holding in the jurisprudence that an emergency must be declared for the immunity provisions of La.Rev. Stat. 29:735 to apply. The legislative purposes of the Homeland Security and Emergency Assistance and Disaster Act are outlined broadly in La.Rev.Stat. 29:722: to preserve the lives and property of the people of the State of Louisiana.

The Act, in La.Rev.Stat. 29:723(3), defines an “emergency” in pertinent part as follows:

(3) “Emergency” means:
(a) The actual or threatened condition which has been or may be created by a disaster; or
(b)(i) Any natural or man-made event which results in an interruption in the delivery of utility services to any consumer of Insuch services and which affects the safety, health, or welfare of a Louisiana resident; or
(ii) Any instance in which a utility’s property is damaged and such damage creates a dangerous condition to the public.

La.Rev.Stat. 29:735 provides for immunity of government agencies and officials specifically for “emergency preparedness activities.” The Act defines “emergency preparedness” as follows:

(4) “Emergency preparedness” means the mitigation of, preparation for, response to, and the recovery from emergencies or disasters. The term “emergency preparedness” shall be synonymous with “civil defense”, “emergency management”, and other related programs of similar name, (emphasis added).

La.Rev.Stat. 29:723(4). Neither the definition of “emergency” nor the definition of “emergency preparedness” requires a declaration of an emergency to take place for the Act to take effect. There is no support for plaintiffs’ contention that a declaration of emergency is required for the governmental immunity provisions of the Homeland Security and Emergency Assistance and Disaster Act to take effect.

Furthermore, our analysis of the case jurisprudence regarding emergency preparedness immunity reveals no such requirement, either. In Hontex Enterprises, Inc. v. City of Westwego, 02-506 (La.App. 5 Cir. 12/11/02), 833 So.2d 1234, 1240, the Jefferson Parish president declared a state of emergency in the parish as a result of Tropical Storm Frances. Hontex operated a shrimp processing plant in the city of Westwego, and sought damages for flooded and destroyed seafood allegedly caused by the decision to build a ring levee around a pumping station and the seafood plant. The appellate court agreed that the defendant city was immune from liability for emergency preparedness to protect citizens from the threat of a flood.

|12In Castille v. Lafayette City-Parish Consolidated Government, 2004-1569 (La. App. 3 Cir. 3/2/05), 896 So.2d 1261, the court found that emergency preparedness immunity under La.Rev.Stat. 29:735 applied when a motorist was injured as a result of an obstructed road view caused by hurricane debris at an intersection. A state of emergency had been declared by both the governor and parish president. The court stated:

The Lafayette City-Parish Consolidated Government is clearly a political subdivision of the state, so that it is immunized from liability for injuries suffered by persons as a result of the City’s response and recovery activities during an emergency. Castille, pp. 3^4, 896 So.2d at 1264.

In Clement v. Reeves, 2005-616 (La.App. 3 Cir. 6/28/06), 935 So.2d 279, the Court found that the emergency preparedness immunity did not apply to Lafayette City-Parish for failure to maintain an advance-turn warning sign, as the emergency declaration from Hurricane Lili had expired six days before the truck accident at issue. Plaintiffs argue that under Clement, the length of the declaration of emergency was paramount in deciding whether to apply the immunity. We disagree. The court importantly noted that “moreover, the ‘actual or threatened condition’ of Hurricane Lili had obviously long been over” by the time of the accident at issue. Clement, p. 10, 935 So.2d at 285.

Our review of the statutory definitions of an “emergency” and “emergency preparedness”, as well as our review of the relevant case law, reveals that the declaration of an emergency, though not insignificant for the purposes of executing emergency preparedness procedures, is not relevant to determining whether immunity under La.Rev.Stat. 29:735 applies. From these cases, it is clear that applying immunity was not dependent upon an official declaration of emergency, but whether an emergency situation existed, and whether the defendant | ^government was operating in a manner that promoted emergency preparedness and protection of persons and property.

Plaintiffs next argue that under La.Rev. Stat. 29:727, a declaration of emergency shall be made by a parish president only, and that it shall be filed in an office of the clerk of court of that parish. Plaintiffs therefore maintain that because these steps were not taken, an emergency was not properly declared in St. Bernard Parish, and that the St. Bernard Parish Government cannot therefore claim emergency preparedness immunity under La.Rev. Stat. 29:735. We find this argument to be without merit.

Under La.Rev.Stat. 29:727, the Homeland Security and Emergency Assistance and Disaster Act provides the president with the ability to establish a homeland security office within his or her respective parish. The Act allows a parish president to declare a disaster, but only as to “[a] local disaster or emergency.” La.Rev. Stat. 29:727(D). As to the requirement that the declaration of emergency be filed with the clerk of court, the statute again clearly states:

Any order or proclamation declaring, continuing, or terminating a local disaster or emergency shall be given prompt and general publicity and shall be filed promptly with the office of emergency preparedness and the office of the clerk of court, (emphasis added). Id.

Notably, La.Rev.Stat. 29:727 does not supplant the powers of the governor, and clearly maintains the governor’s jurisdiction to declare an emergency within a political subdivision:

A. Each political subdivision within this state shall be within the jurisdiction of and served by the Governor’s Office of Homeland Security and Emergency Preparedness for purposes of homeland security and emergency preparedness and by a parish homeland security and emergency preparedness agency responsible for emergency |14or disaster mitigation, preparedness, response, and recovery. La.Rev.Stat. 29:727(A) (emphasis added).

In the matter sub judice, a declaration of emergency under La.Rev.Stat. 29:727(D) specifically by a parish president was not required, as the rapidly approaching Hurricane Katrina was clearly larger in scale than that of a “local disaster or emergency.” A statewide declaration of emergency was properly issued by Governor Kathleen Babineaux Blanco and in effect during the entire time encompassing the events at issue. Therefore, we need not address plaintiffs’ arguments as to the validity of the August 27, 2005 declaration of emergency by St. Bernard Parish Government.

Because we find that the immunity provision applies, we must next determine whether plaintiffs have presented evidence to show willful misconduct on the part of St. Bernard Parish Government. While the Louisiana case law pertaining to emergency preparedness has not defined “willful misconduct,” Black’s Law Dictionary has defined “misconduct” as “[a] dereliction of duty; unlawful or improper behavior,” and “willful misconduct” as “misconduct committed voluntarily and intentionally.” Black’s Law Dictionary 1019 (8th ed.2004).

In the matter sub judice, the parties engaged extensively in the discovery process at the guidance of the trial court. Numerous depositions were taken, including that of Sherri Baiamonte, the former Director of the St. Bernard Parish Human Resources Division. Ms. Baiamonte testified that the Special Needs List compiled by St. Bernard Parish was made available to Acadian Ambulance as early 115as Friday, August 26, 2005, and Janie Fuller, Acadian’s liaison to Human Resources, testified that she called all persons on the Special Needs List. The trial court record indicates that St. Bernard Parish performed its duties in the compiling of the list of evacuees and relaying all of the information to Acadian. Plaintiffs have presented no evidence in the face of summary judgment showing that any St. Bernard Parish official acted with willful misconduct. Therefore, the emergency preparedness immunities of La.Rev.Stat. 29:735 apply, and judgment in favor of St. Bernard Parish Government, AAIC, and Clarendon is appropriate as a matter of law.

Lastly, we find no merit in plaintiffs’ final argument that St. Bernard Parish Government has a non-delegable duty to evacuate special-needs citizens in the event of an emergency. Our review of Louisiana statutory and case law reveals no such duty. Furthermore, disallowing a parish from contracting with ambulance companies and medical personnel would frustrate a parish’s ability to provide emergency and non-emergency police and medical services. Parish governments and other political subdivisions simply do not have the financial means to employ their own fleet of ambulances, medical personnel, or other similar goods and services that would become vital in an emergency situation.

Conclusion

The facts and circumstances surrounding the deaths of Russell Embry and Dorothy Hingle are profoundly tragic. The facts given in the record provide no discernible reason why, as special needs citizens in need of help, Mr. Embry and Ms. Hingle were not picked up by Acadian Ambulance as they were promised. Nevertheless, at all relevant times St. Bernard Parish Government officials were operating in a situation of dire emergency preparedness with the impending arrival 11fiof Hurricane Katrina. A statewide declaration of emergency had been issued, and St. Bernard officials executed the appropriate phone call procedures to the citizens on the Special Needs List. Because plaintiffs have failed to present any evidence demonstrating willful misconduct by St. Bernard Parish officials, St. Bernard Parish Government and its insurers are entitled to emergency preparedness immunity under La.Rev.Stat. 29:735 as a matter of law. Freeman v. State of Louisiana, 2007-1555 (La.App.4 Cir. 4/2/08), 982 So.2d 903.

Decree

The judgment granting summary judgment in favor of St. Bernard Parish Government, American Alternative Insurance Corporation, and Clarendon National Insurance Company is affirmed.

AFFIRMED

      . AAIC also provided coverage to Acadian Ambulance in this matter, but AAIC will be discussed in this opinion in their role as insurer to St. Bernard Parish Government, unless stated otherwise.

      . Governor Kathleen Babineaux Blanco, Proclamation No. 48 KBB 2005, Declaration of State of Emergency for Hurricane Katrina, effective from Friday, August 26, 2005 through Sunday, September 25, 2005 (First declaration of emergency regarding Hurricane Katrina).