author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Allen SNYDER.
    No. 12-KA-896.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis— Appellate Counsel, J. Brandon Kinnett, Kellie M. Rish, Assistant District Attorneys, Gretna, Louisiana, for Appellee, State of Louisiana.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate, New Orleans, Louisiana, for Appellant, Allen Snyder.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and STEPHEN J. WINDHORST.
   SUSAN M. CHEHARDY, Chief Judge.

|2On appeal, defendant seeks review of his conviction for second degree murder and life sentence. For the following reasons, we affirm his conviction and sentence.

Procedural History

This matter has an extensive procedural history. On August 29, 1996, defendant, Allen Snyder, was convicted by a twelve-member jury of first degree murder and subsequently sentenced to death. Defendant appealed his conviction. In 1999, the Supreme Court of Louisiana conditionally affirmed his conviction and sentence but remanded for a “nunc pro tunc hearing to determine whether defendant was competent at the time of his trial.”

On October 26, 2000, after a hearing as ordered by the Louisiana Supreme Court, the district court ruled that, “Based on the evidence taken as a whole, the Court finds that the defendant was competent on the date of his trial.” On April 14, 2004, the Louisiana Supreme Court affirmed.

|3In 2005, the United States Supreme Court granted defendant’s petition for a writ of certiorari, vacated the judgment, and remanded the case to the Louisiana Supreme Court for consideration of defendant’s Batson claims, in light of Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). On remand, the Louisiana Supreme Court found no merit in defendant’s claim that the State excused potential jurors in a racially discriminatory manner and again affirmed defendant’s conviction and sentence.

The United States Supreme Court again granted petitioner’s writ of certiorari. In Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), the United States Supreme Court held that the trial judge committed clear error in rejecting defendant’s claim that the prosecution exercised peremptory challenges based on race, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which required reversal and remand of the matter to the Louisiana Supreme Court. Thereafter, the Louisiana Supreme Court remanded the matter to the district court for “further proceedings in accord with the law.”

On January 29, 2009, a Jefferson Parish Grand Jury indicted defendant on one count of second degree murder, in violation of La. R.S. 14:30.1, for the homicide of Howard Wilson. On February 12, 2009, defendant pled not guilty. Subsequently, the State filed Notices of Intent to Use Evidence of Other Crimes. On May 4, 2010, a Prieur hearing was held. On May 27, 2010, the trial court |4granted the State’s motion. Defendant sought review of that ruling in this Court, which denied relief.

On January 31, 2012, trial of this matter commenced. After a three-day trial, a twelve-member jury found defendant guilty as charged on February 2, 2012. On March 1, 2012, the trial judge heard and denied numerous post-trial motions. That same day, after defendant waived the statutory delays, the trial court sentenced defendant, as statutorily mandated, to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant timely filed a Motion for Appeal, which was granted on March 5, 2012. This appeal follows.

Facts

In 1995, Allen Snyder and his then-wife, Mary Beth, had a troubled marriage. According to Mary Beth, however, after the birth of their third child, Allen became very controlling and jealous. He would not allow her to speak to other men and prohibited her from leaving the house alone.

Eventually, Allen’s jealousy escalated to physical abuse. Mary Beth testified that, on March 18, 1995, Allen, using his hand, violently shoved her head against the passenger side window of his car, which caused injuries to her face. Mary Beth did not seek medical treatment that night.

About three months later, in May of 1995, Allen struck Mary Beth in the leg with a baseball bat as she lay sleeping. She had a large bruise and limped for about a week. Not long after that incident, Allen drove Mary Beth to an isolated road, opened the trunk of his car, and threatened her that he could do “whatever he wanted to” her and “nobody would ever find” her.

| sThat summer the violence escalated. On the morning of June 11, 1995, Allen “slammed” Mary Beth’s head into the wall of their children’s bedroom, which caused injuries requiring hospitalization. After this instance, which their children witnessed, Mary Beth took their children and went to stay at her parents’ house on Wilker Neal Street in River Ridge.

On June 18, 1995, Allen tried to speak with Mary Beth, but she refused. Later that night, Allen disconnected the electrical box outside Mary Beth’s parents’ home, entered the home, and stabbed Mary Beth nine times in the neck, head, and arms. Mrs. Snyder was treated at the hospital for her injuries.

Approximately two months later, on August 15, 1995, Allen called Mary Beth to discuss reconciliation. Mary Beth agreed to meet with him the following day, telling Allen that she had plans with her cousin that night. Allen, however, wanted to begin their reconciliation that night so he paged Mary Beth numerous times while he waited outside of her cousin’s house, which is less than a block away from Mary Beth’s parents’ house.

In truth, Mary Beth went out with another man, Howard Wilson. Around 1:30 a.m., Howard Wilson drove Mary Beth back to her parents’ house. Allen, who admitted that he was carrying a nine-inch-long knife to “scare” Mary Beth into talking to him, was hiding next to a nearby house and waiting for Mary Beth to return.

|ñNot long after Howard Wilson stopped his car in front of Mary Beth’s parents’ house, Allen yanked open the driver’s side door, leaned over Howard Wilson, and stabbed Mary Beth in the face, which, according to Allen “slowed her down.” Allen then “tussled” with Howard, who “got stabbed” because he floored the ear’s accelerator causing Allen to fall onto Howard during the fight. At some point, Howard Wilson exited his car and stumbled down the street. Allen then got into Wilson’s car and attempted to drive off with Mary Beth, who fought and pled for her life. Almost immediately, however, Allen crashed the car into a nearby fire hydrant then fled.

That night, Gwendolyn Williams was walking home on Wilker Neal Street when she observed a man “stooping down on the side of a trailer” with a knife. She saw the man run from behind the trailer toward a car parked across the street, then open the driver’s door, jump inside, and start “tussling” with the driver. When the driver exited the car, Ms. Williams observed that his “throat was cut.” Then, the car moved forward until it hit a fire hydrant.

According to Ms. Williams, she could hear Mary Beth Snyder, who was inside the car, screaming for help while the man, who she recognized as Mary Beth’s husband, “started cutting on her.” Ms. Williams, who had known Mary Beth for a long time, screamed at the man, who jumped out of the car and fled. Ms. Williams then helped Mary Beth, who was cut “everywhere she could be cut” to her mother’s house and waited for the paramedics and the police to arrive.

Deputy Michael Cooke of the Jefferson Parish Sheriffs Office (“JPSO”) was on patrol when he was dispatched to a “traffic accident” at 312 Wilker Neal Street. When he arrived at the scene, he noticed that a white car had struck a fire 17hydrant. There were no passengers inside the vehicle; however, large amounts of blood were present on the ceiling and dashboard. Deputy Cooke then located Howard Wilson and Mary Beth Snyder, who each had sustained wounds that appeared to be from a sharp instrument, such as a knife. After both victims were determined to be free of weapons, they were rushed to the hospital.

According to medical records that were introduced at trial, Howard Wilson died from exsanguination caused by sharp force injuries inflicted with a double-edged blade. Dr. Susan Garcia, an expert forensic pathologist who performed the autopsy on the victim, testified that Howard Wilson sustained nine sharp force injuries to his upper torso. Of those nine, two wounds, which punctured his lung and opened an artery, were lethal. The manner of Mr. Wilson’s death was homicide.

Meanwhile, as a result of investigation, Allen Snyder, defendant herein, was developed as a suspect. Approximately 12 hours later, defendant called the police claiming that he “cut some people and that he was considering suicide,” and requested that an officer be sent to his house.

Officer Vic Giglio of the Kenner Police Department was dispatched to 508 Hanson Street, in Kenner, in response to the call. Defendant allowed Officer Giglio to enter his house then retreated to another room in the house, where he continued to speak with the dispatcher. Defendant did not have any visible injuries. Almost immediately, Sergeant Giglio realized that defendant was wanted for questioning regarding the homicide on Wilker Neal so he detained defendant for the Jefferson Parish Sheriffs Office.

| ^Detective Debbie Labit of the JPSO arrived at defendant’s home and advised him of his Miranda rights. She observed injuries to defendant’s right hand, which appeared to be fresh and “indicative of offensive-type of injuries during an altercation where a knife is used.” Detective Labit had defendant transported to the Detective’s Bureau, where defendant told her that “he had cut them and that he had been beaten up emotionally by his ex — by his wife and that during the cutting, that the male had taken the knife and fled with the knife.”

Defendant’s statement was played for the jury. In his statement, defendant indicated that he drove to Wilker Neal Street to find his wife and who was with her. Defendant stated that, when Mary Beth and Howard Wilson drove up, he was going to leave but decided to approach them with a knife. Defendant indicated that he intended to “scare her and her friend” “to make ’em talk to me.” Defendant stated that he walked up to the white car, opened the driver’s side door, and told Howard Wilson “we have to talk.” According to defendant, Howard Wilson then “jumped up” and they started to “scuffle.” Defendant stated that he pushed the victim back into the car, and that both he and the victim were armed with knives.

Defendant stated, “my wife, she got stabbed first” then Howard Wilson got stabbed because he pressed the accelerator, which caused defendant to fall onto Wilson. Next, Wilson exited the car and ran one way while defendant ran the other way. Defendant admitted that he threw the knife away as he fled.

On August 16, 1995, Lieutenant Schultz prepared and participated in the execution of a search warrant for defendant’s residence and his vehicle. In defendant’s house, deputies recovered a white t-shirt hidden in the attic that tested positive for blood consistent with Howard Wilson’s DNA.

1 ¡¡Further, at trial, Mary Beth identified defendant, who is now her ex-husband, as the person who stabbed her and Howard Wilson on the night of August 16, 1995. She also testified that neither she nor Howard Wilson had a weapon of any sort during the altercation in question. After hearing the testimony and reviewing the evidence, the twelve-person jury unanimously found defendant guilty as charged of second degree murder.

Law and Argument

On appeal, defendant raises three assignments of error: first, the trial court erred in denying his motion for mistrial; second, the trial court erred in allowing the state to introduce other crimes evidence; and third, the trial court erred in allowing the state to read Mr. Snyder’s personal letters even though they were never offered or intended to be introduced at trial.

In his first assignment of error, defendant argues that the trial court erred in denying his motion for mistrial. Specifically, defendant contends that a mistrial was warranted when the jury was shown his advice of rights form, which indicated that he was charged with first degree murder. Defendant submits that this information was prejudicial.

In response, the State argues that pursuant to La.C.Cr.P. art. 841, defendant failed to inform the trial court of the basis for his objection at the time of occurrence. Thus, the State contends that this issue was not preserved for appeal. Specifically, the State asserts that defendant did not inform the trial court of why the jury “may have been prejudiced.” The State alternatively submits that there is no indication in the record that the jury ever saw the portion of the form that indicated defendant was originally arrested for first degree murder, which tends to indicate that defendant cannot substantiate his claim of prejudice. The State further contends that, even if the jurors did see the subject reference on the form, |inthere was no showing that any of the jurors were influenced or could not render a fair and impartial verdict based on the evidence presented, or that defendant’s presumption of innocence was destroyed.

At trial, during the State’s direct examination of Detective Debbie Labit, the prosecutor introduced the document that defendant signed with Detective Labit, in which defendant waived his Miranda rights. The State offered the document into evidence without objection by defendant and the trial court admitted it. When the State requested publication of the document to the jury, the document was momentarily shown via overhead projector.

The defense team immediately asked for a bench conference and alerted the trial judge and the prosecutors that the document contained that language, “You are under arrest for and will be charged with First Degree Murder.” The defense counsel moved for a mistrial on the basis that the information was “prejudicial.”

After discussion, the trial judge determined that the language was an oversight to all counsel, instructed the State to redact the language from the document, and denied defendant’s motion for mistrial. Specifically, the trial judge noted that the document was visible for such a “brief period of time, that any juror would [not] have ... noticed that or if they did, place any sort of significance on it.... but I don’t think that it would prejudice the jury to an extent that they couldn’t make a fair and impartial decision.”

First, this Court has held that to preserve the right to seek appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La.C.Cr.P. art. 841; State v. Smith, 11-638 (La.App. 5 Cir. 3/13/12), 90 So.3d 1114, 1123. An objection made after the evidence is before the jury is too late. Id. The In contemporaneous objection rule is also applied to motions for mistrials. Smith supra.

Here, the defendant moved for a mistrial on the basis that the jury was “prejudiced” by language in a document that was introduced into evidence without objection. The defendant did not offer any further argument regarding how the jury was prejudiced by the language on the document.

A defendant is limited on appeal to those grounds articulated at trial. State v. Jackson, 450 So.2d 621 (La.1984); State v. Styles, 96-897 (La.App. 5 Cir. 3/25/97), 692 So.2d 1222, 1228 n. 2, writ denied, 97-1069 (La.10/13/97), 703 So.2d 609. Here, defendant failed to articulate grounds for his objection at trial so defendant has no grounds to raise on appeal. Thus, under La.C.Cr.P. art. 841, this issue was not preserved for appeal.

Furthermore, even if this error had been preserved for appeal, we would find no abuse of the trial court’s discretion in denying defendant’s motion for mistrial. A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Dorsey, 11-745 (La.App. 5 Cir. 4/24/12), 94 So.3d 49, 56, writ denied, 12-998 (La.10/12/12), 99 So.3d 39. Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. Id.

When the conduct does not fall within the mandatory mistrial provisions of La.C.Cr.P. art. 770, the judge has the sound discretion to determine whether the Inactivity or comment so prejudiced the defendant that he could not receive a fair trial. State v. Talbot, 408 So.2d 861, 866 (La.1980); State v. Chairs, 12-363 (La.App. 5 Cir. 12/27/12), 106 So.3d 1232, 1249. The mere possibility that a defendant was prejudiced is insufficient to support an appellate court’s finding of reversible error. State v. Bradham, 638 So.2d 428, 429 (La.App. 5 Cir. 5/31/94).

In this case, the trial judge determined that a brief glimpse of language in a document was not sufficient to establish prejudice in this case. The defendant has not shown in his appellate argument that the trial court abused his discretion when he made that determination. Finally, the mere possibility that a defendant was prejudiced does not constitute reversible error. Bradham, supra. Based on the foregoing, we find no error in the trial judge’s denial of defendant’s motion for mistrial. This assignment of error lacks merit.

In his second assignment of error, defendant argues that the trial court erred in allowing the State to introduce other crimes evidence under La. C.E. art. 404(B)(1). Specifically, defendant contends that the trial court erred in allowing the introduction of previous domestic disputes between defendant and Ms wife, which he maintains served no purpose other than to depict him as a chronic domestic violence offender. Defendant argues that this error was not harmless because, without this evidence, the jury would likely have convicted him of manslaughter, rather than second degree murder.

The State responds that this issue was previously litigated so this Court could decline further review under the “law of the case” doctrine. The State | lsconcludes that reconsideration should not be afforded because the defense has failed to show palpable error or manifest injustice in this Court’s prior ruling.

Between October 21, 2009 and April 26, 2010, the State filed its original and two amended Notices of Intent to Use Evidence of Other Crimes at defendant’s trial. The Prieur hearing was held on May 4, 2010. At the hearing, the State sought to introduce evidence that defendant had committed other bad acts against his wife in the months leading up to the attack that resulted in the instant homicide. These acts included: simple battery on March 11, 1995, when defendant caused Mary Beth’s head to strike the interior window of his vehicle, causing injury; aggravated battery in May of 1995, when defendant hit Mary Beth in the leg with a baseball bat while she was sleeping; assault in May of 1995, when defendant threatened to “get rid of’ Mary Beth; arrest for simple battery on June 11, 1995, when defendant pushed Mrs. Snyder’s head through the sheetrock of their children’s bedroom; aggravated battery on June 18, 1995, when defendant disabled the electricity to Mary Beth’s parents’ house, illegally entered the house, and stabbed Mary Beth nine (9) times with a screwdriver, which required hospitalization; and, finally, an incident in July of 1995, in which defendant called Mary Beth stating that “he better not catch her out on the street.”

At that hearing, the State argued that the evidence showed that defendant had a history of harassing, threatening, and physically abusing Mary Beth in the months prior to the attack on her and the victim. The State indicated that defendant was extremely jealous, frequently accused Mary Beth of seeing other men, and followed his accusations with physical violence. The State contended that, on the night in question, defendant’s jealousy again caused him to attack and severely injure Mary Beth and kill Howard Wilson.

|14The State contended that the evidence of defendant’s escalating attacks showed defendant’s intent, motive, identity, preparation, and plan. Specifically, the State contended that the prior bad acts against Mary Beth demonstrated defendant’s continuing intent to keep her from either leaving him and/or seeing other men and motive for the fatal attack on Howard Wilson. Further, the evidence reflected preparation and plan as well as defendant’s intent to kill or to inflict great bodily harm on the victim, which is an element of the charged crime. The State maintained that the pri- or bad acts put the attack on the victim in context and, thus, were relevant. Finally, the State argued that the probative value outweighed any prejudicial effect to defendant.

On May 27, 2010, the trial judge granted the State’s Prieur motions, which would allow the State to introduce this evidence at trial. On July 23, 2010, defendant sought supervisory review of the trial court’s ruling with this Court. On August 20, 2010, this Court denied relief, as follows, in pertinent part:

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.

Evidence of other crimes or bad acts committed by a criminal defendant is generally not admissible at trial. La. C.E. art. 404(B)(Z); State v. Prieur, 277 So.2d 126, 128 (La.1973). However, when such evidence tends to prove a material issue and has independent relevance other than showing that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule. State v. Aleman, 01-743 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1065.

La. C.E. art. 404(B)(Í) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for |1sother purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

In order for other crimes evidence to be admitted, certain requirements must be met. First, one of the above-enumerated factors must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible. State v. Jackson, 625 So.2d 146, 149 (La.1993). Second, the State must prove that the defendant committed the other acts by a preponderance of the evidence. State v. Hernandez, 98-448 (La.App. 5 Cir. 5/19/99), 735 So.2d 888, 898-899, writ denied, 99-1688 (La.11/12/99), 750 So.2d 194; Huddleston v. U.S., 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). Third, the requirements for admission of such evidence, set forth in State v. Prieur, 277 So.2d 126, 130 (La.1973), must be met: Within a reasonable time before trial, the State must furnish to the defendant a written statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. In the written statement, the State must specify the exception to the general exclusionary rule upon which it relies for the admissibility of the evidence of other acts or offenses. Finally, the probative value of such evidence must be weighed against its prejudicial effect. State v. Lisotta, 97-406 (La.App. 5 Cir. 2/25/98), 712 So.2d 527, 530.

Additionally, the probative value of the extraneous evidence must outweigh its prejudicial effect. State v. Maise, 759 So.2d [884] at 894 [ (La.App. 5 Cir. 2000) ]. The burden is on the defendant to show that he was prejudiced by the trial court’s admission of Prieur evidence. State v. Temple, 01-655 (La.App. 5 Cir. 12/12/01), 806 So.2d 697, 709. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to La. C.E. art 404(B)(£) will not be disturbed. State v. Williams, 02-645, p. 16 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 507, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.

After reviewing the writ application, we find no abuse of the trial court’s discretion in this case. The application reflects that the state had two primary justifications for introducing evidence of bad acts into the record: (1) to prove that Relator had a motive to kill the victim, and (2) to prove that Relator had the specific intent to kill or to inflict great bodily harm upon the victim.

Contrary to Relator’s assertion, the trial court’s reliance on the factually similar case of State v. Colbert, 2007-0947 (La.App. 4 Cir. 7/23/08), 990 So.2d 76 was not misplaced. In Colbert, the state sought to introduce evidence of several bad acts or other crimes the defendant committed before attempting to kidnap his ex-girlfriend and killing his ex-girlfriend’s friend. The state allowed the defendant’s ex-girlfriend to testify about incidents that occurred in the summer of |1(i2003, even though the police were not called to respond to those incidents.

The Fourth Circuit found no error in the trial court’s ruling which allowed the state to introduce the evidence. According to Jennifer Alexander (the defendant’s ex-girlfriend), the defendant threatened to harm her and any man with whom he caught her, as is the case here. Id. at 88. The defendant committed a series of prior bad acts that were “all part of a pattern of the appellant’s obsession with Ms. Alexander.” Id. The Fourth Circuit concluded that “evidence of the prior incidents was relevant to show the appellant’s intent to murder Jefferson as well as his motive for doing so.” Id. The Fourth Circuit also concluded that the probative value of evidence of the prior offenses far outweighed its prejudicial effect. Id.

We similarly conclude that evidence of bad acts or other crimes the defendant committed prior to being charged with second-degree murder are relevant to show intent and motive. We also conclude that the probative value of evidence of the prior bad acts outweighs its prejudicial effect.

State v. Snyder, 10-628 (La.App. 5 Cir. 8/20/10) (unpublished writ disposition), writ denied, 10-2129 (La.11/19/10), 49 So.3d 391.

On appeal, defendant presents essentially the same argument as he made in his writ application. As noted previously, the State urges this Court to refuse reconsideration under the “law of the case” doctrine.

Under the discretionary principle of “law of the case,” an appellate court may refuse to reconsider its own rulings of law on a subsequent appeal in the same case. State v. Burciaga, 05-357 (La.App. 5 Cir. 2/27/06), 924 So.2d 1125, 1128; State v. Junior, 542 So.2d 23, 27 (La.App. 5 Cir.1989), writ denied, 546 So.2d 1212 (La.1989). The principle is applicable to all decisions of an appellate court; not solely those arising from full appeal. State v. Johnson, 06-859 (La.App. 5 Cir. 4/11/07), 957 So.2d 833, 840. Reconsideration is warranted, however, when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. In re K.R.W., Jr., 03-1371 (La.App. 5 Cir. 5/26/04), 875 So.2d 903, 905; State v. Davis, 03-488 (La.App. 5 Cir. 11/12/03), 861 So.2d 638, 641, writ denied, 03-3401 (La.4/2/04), 869 So.2d 874.

|17In this case, the record reflects that, at trial, witnesses, including Mary Beth and several police officers, testified regarding five violent incidents that were the subject of the Priewr hearing and subsequently reviewed by this Court. Neither our review nor defendant’s brief reveals any new facts adduced at trial that would cast aspersions on this Court’s previous ruling. Further, defendant does not cite to any statutory or jurisprudential authority that reveals that this Court’s prior disposition was patently erroneous and produced an unjust result. Accordingly, in this instance, we will consider our previous ruling on the trial court’s granting of the State’s Prieur motion as the “law of the case” and decline reconsideration. State v. Jones, 08-306 (La.App. 5 Cir. 10/28/08), 998 So.2d 173, 177, writ denied, 08-2895 (La.9/4/09), 17 So.3d 947, cert. denied, 559 U.S. 947, 130 S.Ct. 1519, 176 L.Ed.2d 126 (2010); State v. Lande, 06-24 (La.App. 5 Cir. 6/28/06), 934 So.2d 280, 299, writ denied, 06-1894 (La.4/20/07), 954 So.2d 154; State v. Holliman, 04-1195 (La.App. 5 Cir. 3/29/05), 900 So.2d 999, 1001.

In his final assignment of error, defendant argues that the trial court erred in allowing the State to read defendant’s personal letters even though they were never offered or intended to be introduced at trial. Specifically, defendant claims that he was denied his right to present a defense when his cross-examination of Mary Beth Snyder was “stymied” by the trial court when the trial judge required him to disclose Mary Beth’s letters to him, to the State. Defendant maintains that by ordering him to provide the subject “impeachment” letters to the State, defendant was forced to stop questioning Mary Beth Snyder about her true motives in the |iscase for fear that the trial court would require further revelation of the content of additional letters in his possession.

In response, the State argues that defendant’s argument on appeal is not the argument that defendant raised at trial, which precludes him from asserting this issue. Specifically, the State contends that, at trial, when the letters were discussed, defendant argued that his personal letters were protected from discovery by the State, yet, on appeal, defendant argues that his right to confrontation was violated because he had to stop questioning Mary Beth about her letters to avoid having to disclose those letters to the State. Alternatively, the State argues that defendant failed to proffer the questions it would have asked Mary Beth, and therefore, is unable to show how his cross-examination was “stymied.”

During cross-examination of Mary Beth Snyder, defense counsel asked her if she had communicated with the defendant since 1996, and Mary Beth replied that she had spoken to him over the phone and had written letters to him. Defense counsel questioned Mary Beth about her intent and state of mind when she wrote to defendant then read small excerpts from two documents. The State vociferously objected to defense counsel reading to the jury from a document that had neither been authenticated nor previously disclosed to the prosecution. The trial judge admonished defense counsel not to read from the documents.

Immediately thereafter, the prosecution objected to the use of the purported letters from Mary Beth, based on defense counsel’s failure to disclose the letters to the prosecutor through the State’s request for discovery. The State requested an in camera inspection of the documents by the trial judge to determine if the letters contained evidence that the State may be entitled to discover regarding Mary Beth’s state of mind when she wrote the letters. After reviewing two separate letters that defense counsel had referenced while cross-examining Mary Beth hflSnyder, the trial judge ruled that, although defense counsel may not intend to introduce the letters, the letters contained information regarding Mary Beth Snyder’s state of mind that the State was entitled to know “to conduct a meaningful redirect examination.”

In response to the trial judge’s ruling, defense counsel informed the trial judge during a bench conference, “given the court’s prior ruling regarding the two letters, the 1998 letter and the 1999 letter authored by Mrs. Snyder and sent to Mr. Snyder, I would have had additional questions regarding additional letters written by her but given the court’s ruling, I’m going to stop any questioning along the lines of those letters.” Defense counsel revealed that he was declining further cross-examination on the letters to avoid the risk of the trial judge ordering the defense team to “turn over the letters[,] which are not discoverable in our opinion.”

The trial judge noted, “None of my rulings prevented [defense counsel] from asking your questions as it relates to the letters as of this point in time. I mean, we had the court reporter review the brief series of questions [defense counsel] asked about and you were allowed to do that.” When the prosecutor suggested that defense counsel proffer the questions that he was choosing not to ask Mary Beth because “the appellate court might want to know what ... those questions [are] ... that they’ve been denied the opportunity to ask,” defense counsel “declined.”

First, we note that a defendant is limited on appeal to those grounds articulated at trial. State v. Styles, supra. Here, defendant articulated an evidentiary basis for his objection at trial yet raises different grounds on appeal. A new basis for a claim, even if it would be meritorious, cannot be raised for the first time on appeal. State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, 911, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162. Thus, we find that this issue was not preserved for appeal.

^Furthermore, even if the claim had been properly raised in the trial court, the defendant failed to proffer the substance of the “excluded evidence,” and, thus, failed to preserve the issue for review by this Court. “Error may not be predicated upon a ruling which ... excludes evidence unless a substantial right of the party is affected, and ... the substance of the evidence was made known to the court by counsel.” La. C.E. art. 103(A)(2). “This can be effected by proffer, either in the form of a complete record of the excluded testimony or a statement describing what the party expects to establish by the excluded evidence.” State v. Magee, 11-0574 (La.9/28/12), 103 So.3d 285, 326.

This Court has consistently held that when a defendant does not make known the substance of the excluded evidence for the purpose of consideration by the trial and appellate court, the alleged error is not preserved for review on appeal. See, State v. Massey, 11-358 (La.App. 5 Cir. 3/27/12), 97 So.3d 13, writ denied, 12-0993 (La.9/21/12), 98 So.3d 332 (this Court held that defendant failed to show that the trial judge’s exclusion affected a substantial right where he made no showing of how the excluded testimony was relevant and material to the defense and the record was devoid of any proffer regarding the excluded testimony or the reasons for its admissibility); State v. Thompson, 12-409 (La.App. 5 Cir. 12/11/12), 106 So.3d 1102, 1109-10 (defendant chose not to proffer witness’ testimony and did not make known the substance of the excluded evidence so this Court held defendant failed to preserve the excluded testimony for appeal by failing to object and failing to proffer the evidence). Here, defendant failed to make known the substance of the allegedly excluded evidence and failed to show that the alleged exclusion affected a substantial right. Accordingly, this issue was not preserved for appeal.

121 Error patent review

Finally, as is our customary practice, we have reviewed the record for errors patent, pursuant to La.C.Cr.P. art. 920, and found none requiring corrective action.

Conclusion

In conclusion, we find no merit in defendant’s arguments on appeal. Defendant’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, 854.

      . State v. Snyder, 95-5114 (La.Dist.Ct. 10/26/00), 2000 WL 35631882.

      . State v. Snyder, 98-1078 (La.4/14/04), 874 So.2d 739.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Snyder v. Louisiana, 545 U.S. 1137, 125 S.Ct. 2956, 162 L.Ed.2d 884 (2005).

      . State v. Snyder, 98-1078 (La.9/6/06), 942 So.2d 484, reh’g denied, (La.12/15/06).

      . Snyder v. Louisiana, 551 U.S. 1144, 127 S.Ct. 3004, 168 L.Ed.2d 726 (2007).

      . State v. Snyder, 98-1078 (La.4/30/08), 982 So.2d 763.

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . State v. Snyder, 10-628 (La.App. 5 Cir. 8/20/10) (unpublished writ disposition), writ denied, 10-2129 (La.11/19/10), 49 So.3d 391.

      . It is undisputed that both parties had engaged in extramarital relationships in 1994 or 1995.

      . Daniel Kilian, former patrol officer for the Kenner Police Department, testified that, on June 11, 1995, he responded to a call at the Snyder's home at 508 Hanson Street in Ken-ner. When he arrived, he observed Mary Beth Snyder, who was bleeding from her head and had a scratch on her face. She reported that Allen had pushed her head into a wall in their children’s bedroom. Defendant was arrested in connection with this incident. Further, the parties stipulated that the medical records for East Jefferson General Hospital would establish that Mary Beth Snyder was admitted for medical treatment of injuries to her head on June 11, 1995.

      .Sergeant Bonura testified that, on June 18, 1995, he was dispatched to a residence on Wilker Neal in response to an aggravated burglary. Upon arrival, he observed that the victim, Mary Beth Snyder, had sustained a puncture wound to her neck. Sergeant Bon-ura interviewed witnesses and developed Allen Snyder as a suspect. Further, the parties stipulated that the medical records for East Jefferson General Hospital revealed that Mary Beth Snyder was admitted for treatment of numerous deep puncture wounds on June 18, 1995.

      . At trial, Allen testified that, when he approached the car, he observed Mary Beth and Howard kissing. He further testified that Howard Wilson "jumped up and that's how the scuffle started." Allen testified that Wilson was armed also. Further, Allen disarmed him then Wilson ran away. Finally, after trying to remove Mary Beth from the car, Allen eventually ran back to his car, and went home.

      .That night, Mary Beth Snyder sustained 19 stab wounds, which required surgical intervention and hospitalization.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The weapon was never recovered.

      . La.C.Cr.P. art. 770 provides the following regarding prejudicial remarks:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1)Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

      . Those incidents were: (1) simple battery on March 11, 1995, when defendant caused Mary Beth’s head to strike the interior window of his vehicle, causing injury; (2) aggravated battery in May of 1995, when defendant hit Maty Beth in the leg with a baseball bat while she was sleeping; (3) assault in May of 1995, when defendant threatened to "get rid of” Mary Beth; (4) arrest for simple battery on June 11, 1995, when defendant pushed Mrs. Snyder's head through the sheetrock of their children’s bedroom; and (5) aggravated battery on June 18, 1995, when defendant disabled the electricity to Maty Beth’s parents’ house, illegally entered the house, and stabbed Mary Beth nine(9) times with a screwdriver, which required hospitalization.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    BANK OF AMERICA, N.A., as Successor by Merger to BAC Home Loans Servicing, LP. fka Countrywide Home Loans Servicing, LP v. Louis Gustavo ERAZO, et al.
    No. 13-CA-153.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      Monique M. Lafontaine, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    Cullen J. Brown, Stephen W. Rider, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    P. Michael Breeden, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡/This matter arises out of a Petition for Executory Process filed by appellees, Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, LP FKA Countrywide Home Loans Servicing, LP, seeking to seize and sell the home, which secured a loan, due to unpaid loan payments. In response to this petition, appellants, Luis Gustavo Erazo and Guadalupe Zapata Erazo, filed both petitions for preliminary and/or permanent injunctions and a reconventional demand that incorporated several claims. Appel-lees responded to the petition for injunction, by filing an exception of insufficiency of service of process and arguing that the petition for injunction was without merit. In response to the reconventional demand, appellees filed a motion to strike, and exceptions of improper cumulation of actions and unauthorized use of summary proceedings. With regard to appellants’ claim under the Louisiana Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1409 specifically, appellees filed an exception of no cause of action.

|sOn September 18, 2012, after a hearing, the trial court granted all of appellees’ exceptions and their motion to strike. The trial court thereafter dismissed “all claims of defendants.” Appellants now appeal that judgment. For the following reasons, we affirm in part and reverse in part the trial court’s judgment and remand this matter for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On February 7, 2012, appellees filed a petition for executory process alleging that appellants owed them $148,982.57, together with interest, attorney fees, and costs, in connection with a real estate mortgage on a certain described property. On February 8, 2012, the trial court granted the appellees’ petition for executory process, ordered the appellants be served a copy of the petition, and issued the writ of seizure and sale for which the appellees had petitioned.

On September 12, 2012, the appellants filed their “Reconventional Demand and/or Preliminary Injunction and/or Permanent Injunction and/or Damages and for the Return of the Property” together with a proposed temporary restraining order which, in relevant part, prohibited anyone from selling or doing any other act in furtherance of the trial court’s order of executory process. In this filing, appellants alleged facts and law in support of both their injunction and their reconven-tional demand claims against appellees. The trial court signed appellants’ proposed temporary restraining order and ordered a hearing for September 18, 2012.

| .(Counsel for appellants then sent a copy of their September 12, 2012 filing, along with the trial court’s orders from that date, to appellees’ counsel of record by certified mail. A return receipt in the record shows that appellants’ mailing was delivered to counsel for appellees on September 14, 2012.

In their memorandum in opposition to appellants’ petition for an injunction, ap-pellees first argued their exception of insufficiency of service of process. They claimed they were never served a copy of the order setting the hearing on appellants’ “petition for injunction.” On the merits, appellees argued that appellants’ injunction was without legal basis and, therefore, should be dismissed.

Regarding the appellants’ reconventional demand, appellees argued that it “must be stricken as the Louisiana Code of Civil Procedure does not allow the filing of re-conventional demands and answers in response to a petition for executory process.” Appellees also supported their exceptions to the reconventional demand, of improper cumulation and of unauthorized use of ex-ecutory process, with the same improper cumulation argument. In support of their exception of no cause of action, appellees argued that they were exempt from the Louisiana Unfair Trade Practices and Consumer Protection Law under La. R.S. 51:1406(1).

On September 18, 2012, the trial court heard appellees’ motion to strike and exceptions; it did not, however, consider the appellants’ motion for an injunction on its merits. At the conclusion of this hearing, the trial court granted (in whole cloth) the appellees’ motion to strike and sustaining all of their exceptions. It then dismissed “all claims of defendants” without addressing the merits of either the injunction or the reconventional demand.

\JJISCUSSION

In their first assignment of error, appellants argue the trial court erred when it granted the appellees’ exception on insufficiency of service of process of their injunction and, thereafter, dismissed that motion. In their second, third, and fourth assignments of error, appellants argue the trial court erred with regard to the reconven-tional demand, in granting the appellees’ exception of improper cumulation of actions, exception of improper use of summary proceedings, and motion to strike reconventional demand, and in, thereafter, dismissing their reconventional demand claims without allowing them to sever those claims into a new suit. In their final assignment of error, appellants argue the trial court erred in granting the appellees’ exception of no cause of action, claiming they had stated causes of action for wrongful foreclosure, failure to negotiate under the covenants of “good faith and fair dealing,” and in their claim that Louisiana’s executory process law was unconstitutional.

Assignment One

In their first assignment of error, appellants argue the trial court erred when it granted the appellees’ exception of insufficiency of service of process of the appellants’ injunction. In response, appellees argue that the trial court validly granted this exception because the appellants did not meet La. C.C.P. art. 1314’s requirement of having the sheriff serve their injunction. For the following reasons, we find that the trial court erred in its determination that the service of that injunction was insufficient.

Louisiana Code of Civil Procedure article 1313, in pertinent part, provides:

A. Except as otherwise provided by law, every pleading subsequent to the original petition, and every pleading which under an express |r,provision of law may be served as provided in this Article, may be served either by the sheriff or by:
(1) Mailing a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party at his last known address, this service being complete upon mailing.
B. When service is made by mail, delivery, or electronic means, the party or counsel making the service shall file in the record a certificate of the manner in which service was made.
C. Notwithstanding Paragraph A of this Article, if a pleading or order sets a court date, then service shall be made either by registered or certified mail or as provided in Article 1314, or by actual delivery by a commercial courier.
As seen above, La. C.C.P. art. 1313 applies, in relevant part, to “every pleading subsequent to the original petition” and to any pleading or order which “sets a court date.” We find that the appellants’ September 12, 2012 filing, to the extent that it sought an injunction, fit both of these categories.

First, we find that appellants’ injunction was “subsequent to the original petition” because this injunction was a defense in response to the appellees’ petition for executory process. The Louisiana Code of Civil Procedure article 2642 specifically recognizes that an injunction is a proper procedural mechanism to assert a defense against an executory process petition. Furthermore, as a defense to the executory process petition, the injunction is contained within the executory process litigation. Because this injunction is “subsequent to the original petition” within the executory process, La. C.C.P. art.1313 allows service to be made by, “[mjailing a copy thereof to the counsel of record.”

In their brief to this Court, appellees cite Dalke v. Armantono, 09-1954 (La.App. 1 Cir. 5/7/2010), 40 So.3d 981, for the proposition that petitions for 17preliminary injunctions must be formally served by the sheriff. While the court in Dalke sustained the defendant’s exception of insufficiency of service of process, that defendant had not submitted to the jurisdiction of the court by first filing an original petition. Such is not the case here. Here, the appellees submitted to the court’s jurisdiction when they filed their original petition for executory process on February 7, 2012. Because the appellees had submitted to the court’s jurisdiction by filing their original petition for executory process, the appellants were not required to use the sheriff to subsequently serve their defensive injunction.

Second, the record reflects that the trial court’s September 12, 2012 order set a hearing date on appellants’ injunction and incorporated by reference appellants’ “Re-conventional Demand and/or Preliminary Injunction and/or Permanent Injunction and/or Damages and for the Return of the Property.” Because this order set a court date, it is therefore included in Article 1313(C)’s category of orders or pleadings, which may be sent by certified mail:

The record reflects that the order was sent by certified mail to the appellees’ counsel of record. On this basis, we find that appellees were properly served the required notice by certified mail. Accordingly, we reverse the trial court’s sustaining of the appellees’ exception of insufficiency of service of process.

After the trial court sustained this exception, it dismissed appellants’ petitions for injunction. While the record of what occurred at this hearing is murky at best, a close review indicates that while there was some generic conversation regarding the injunction, the trial court never reached the merits of the injunction. Rather, the trial court simply sustained, in whole cloth, all of the appellees’ exceptions and dismissed the injunction. This was an error. While the appellees ^introduced the evidence necessary for us to address the merits of the injunction, since the trial court never reached the merits, we have no decision to review. Therefore, we reverse the trial court’s dismissal of the appellants’ injunction and remand this matter for further proceedings consistent with this opinion.

Assignments Two, Three, and Four

In their second, third, and fourth assignments, appellants argue the trial court erred with regard to their reconventional demand when it granted the appellees’ exception of improper cumulation of actions, exception of unauthorized use of summary proceedings, and motion to strike. In these assignments of error, appellants contend that they had a right to bring their reconventional demand either in a separate suit or within the executory proceedings under the mortgage. Appellants further argue that even if their reconventional demand was not properly brought within the executory proceedings, the trial court erred by not severing the action into a new suit with a new number.

For the following reasons, we find the trial court correctly found that the recon-ventional demand had been improperly cu-mulated with the injunction. However, we also find the trial court erred by dismissing the reconventional demand rather than giving the appellants an opportunity to sever that demand into a separate suit.

The exception of improper cumu-lation of actions is a dilatory exception. La. C.C.P. art. 926(7). On this exception, La. C.C.P. art. 462 states:

A plaintiff may cumulate against the same defendant two or more actions even though based on different grounds, if:
(1) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
(2) All of the actions cumulated are mutually consistent and employ |9the same form of procedure.
Except as otherwise provided in Article 3657, inconsistent or mutually exclusive actions may be cumulated in the same judicial demand if pleaded in the alternative.

The requirement that all of the actions employ the same form of procedure refers merely to whether each of the cumulative actions employ ordinary, executo-ry, or summary procedure. Abadie v. Cassidy, 91-0967 (La.1991), 581 So.2d 657; Deutsche Bank Trust Co. America v. Ochoa, 12-800 (La.App. 5 Cir. 5/23/13), 120 So.3d 735.

Here, the appellees filed a petition for executory process which sought the seizure and sale of property which secured a mortgage allegedly in default. The appellants’ September 12, 2012 filing in response both moved for a preliminary and/or permanent injunction and made a reconventional demand against the appel-lees for damages. The issue of whether the appellants’ petition for injunction was properly cumulated with the appellees’ ex-ecutory process is not before us on this appeal as appellees did not argue at the trial court that appellants’ reconventional demand had been improperly cumulated with its petition for injunction. The issue before us is whether the trial court erred with regard to appellants’ reconventional demand in sustaining these exceptions and granting the appellees’ motion to strike.

Appellants’ reconventional demand for damages employs an ordinary, not execu-tory, proceeding. See Deutsche Bank Trust Co. America v. Ochoa, supra. Because the reconventional demand does not employ the same form of procedure |10as the executory proceeding, as required by La. C.C.P. art. 462 for the cumulation of actions, with regard to appellants’ recon-ventional demand for damages, we find that the trial court correctly sustained ap-pellees’ exceptions to the reconventional demand and granted the motion to strike it. We therefore affirm this part of the trial court’s ruling.

Appellants also claim however that even if they made a claim that was improperly cumulated with the appellees’ petition for executory process, the trial court erred by not severing these improperly cumulat-ed claims into a new suit. We agree.

If a party has improperly cumulated actions, La. C.C.P. art. 464, in pertinent part, provides that:

... the court may: (1) order separate trials of the actions; or (2) order the plaintiff to elect which actions he shall proceed with, and to amend his petition so as to delete therefrom all allegations relating to the action which he elects to discontinue. The penalty for noncompliance with an order to amend is a dismissal of plaintiffs suit.

Further, in Mortgage Electronic Registration Systems, Inc. v. Wells, 05-0795 (La.App. 4 Cir. 4/5/06), 930 So.2d 117, the Fourth Circuit reversed a trial court’s dismissal of improperly cumulated claims when the trial court failed to sever those claims. In Mortgage Electronic Registration Systems, after an alleged default, a mortgagor filed a petition for executory process. Id. at 119. In response, the mortgagee filed a petition for damages and for an injunction. Id. The mortgagor filed an exception of improper cumulation of actions which the trial court granted. The trial court then dismissed the mortgagor’s entire action. Id. On appeal, the Fourth Circuit reversed the trial court’s dismissal and ruled that:

the trial court here was incorrect in dismissing all of [the mortgagee’s] action, and not giving him an opportunity to amend his pleadings. At the very least, [the mortgagee’s] damage claim could have been severed from the other claims and assigned a new number, if the trial |ncourt felt that it did not meet the criteria for cumulation as articulated in La. C.C.P. Art. 462.

Id. at 120.

The Fourth Circuit thereafter remanded the case to the trial court for further proceedings. See also Deutsche Bank Trust Co. America v. Ochoa, supra; and, Bank of New York Mellon v. Smith, 11-60 (La.App. 3 Cir. 6/29/11), 71 So.3d 1034, 1047, writ denied, 11-2080 (La.11/18/11), 75 So.3d 462 (stating that, under La. C.C.P. art. 464, when cumulation is improper, the trial court should sever, not dismiss, the improperly filed claims).

Here, with regard to appellants’ recon-ventional demand, although the trial court correctly sustained the exceptions and granted the motion to strike, we find that the trial court erred thereafter by dismissing the appellants’ claims for damages. Accordingly, we reverse the judgment dismissing appellants’ reconventional demand and order that the trial court sever appellants’ reconventional demand from the ex-ecutory proceedings.

Assignment Five

In their final assignment of error, appellants argue the trial court erred in sustaining the appellees’ exception of no cause of action. Appellants contend they stated causes of action in their claims of wrongful foreclosure and failure to negotiate under the covenants of “good faith and fair dealing,” as well as their claim challenging the constitutionality of Louisiana’s executory process.

These claims were not at issue, however, on the appellees’ exception of no cause of action. In support of that exception, ap-pellees only argued that appellants’ claim under the Louisiana Unfair Trade Practices and Consumer Protection Law, 112La. R.S. 51:1409 (“LUTPA”) had failed to state a cause of action. Therefore, that was the only issue to be decided by the trial court.

On review, we find that the trial court did not sustain the exception of no cause of action as to appellants’ claims of wrongful foreclosure, failure to negotiate under the covenants of good faith and fair dealing, or to appellants’ constitutional challenge to Louisiana’s executory process. The trial court’s judgment only sustained the exception of no cause of action as to appellants’ LUTPA claim under La. R.S. 51:1409.

This court reviews only issues that have been submitted to the trial courts. Uniform Rules of Louisiana Courts of Appeal, Rule 1-3. Here, the appellants assign as error an issue that was not part of the trial court’s judgment. Therefore, we find appellants’ final assignment of error to be without merit.

CONCLUSION

For these reasons, with respect to appellant’s reconventional demand, we affirm the trial court’s sustain of appellees’ exceptions of improper cumulation of actions and unauthorized use of summary process and grant of the motion to strike. However, we reverse the trial court’s dismissal of appellants’ reconventional demand and remand with instructions to allow the appellants to sever those claims into a new suit. As to appellants’ injunction, we reverse the trial court’s sustain of the exception of insufficiency of service of process and dismissal. We remand the injunction for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, REMANDED

      . For ease of reading, this and other quotes have been modified from their original formatting in capital letters.

      . This order of the trial court did not specifically address appellants’ reconventional demand, rather, only the appellants' demand for injunctive relief. It ordered a hearing to show cause why it "should not issue a preliminary and/or permanent injunction without bond, ordering the suspension of the seizure and sale of the property located at 600 Lancer Lane, Kenner, Louisiana, 70065.”

      . At the trial court, appellees did not argue that the reconventional demand’s service of process was insufficient, therefore, the trial court did not rule on that question and that matter is not before us.

      . See also La. C.C.P. art. 2751 which provides, within the Code of Civil Procedure’s Book V, Title II on Executory Proceedings that: ”[t]he defendant in the executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the security interest, mortgage, or privilege is extinguished, or is legally unenforceable, or if the procedure required by law for an execu-tory proceeding has not been followed.”

      . We also find that the return receipt of this mailing, placed in the record, shows that ap-pellees' counsel of record received this notice on September 14, 2012, within the timeframe mandated by La. C.C.P. art. 3602 for notice of hearing on preliminary injunctions.

      . The trial court spoke only to the appellants’ reconventional demand when it sustained these exceptions and this motion to strike; these sustains did not apply to appellants’ injunction.

      . We note however that an injunction is a proper defense to a petition for executory process. La. C.C.P. art. 2642 plainly allows injunctions in response to petitions for execu-tory process, stating: ’’[djefenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both....” Further, this Court has recognized that injunctions, such as the one filed by appellants, are defenses to executory proceedings and may be filed within them. Deutsche Bank Nat. Trust Co. v. Carter, 10-663 (La.App. 5 Cir. 1/25/11), 59 So.3d 1282, 1286, writ denied, 11-0392 (La.4/8/11), 61 So.3d 691. Therefore, appellants' motion for an injunction in response to the appellees' petition for executory process against them was properly cumulated.

      . Appellants asserted their LUTPA claim in paragraph 49 of their "Reconventional Demand and/or Preliminary Injunction and/or Permanent Injunction and/or Damages and for the Return of the Property.” This LUTPA claim was separate from the appellants' other reconventional demand claims of wrongful foreclosure, "failure to deal within the covenants of good faith and fair dealing,” and that Louisiana's executory process procedure is unconstitutional.


text:
    Sherri L. PIGNONA v. George Allan FARBER, M.D.
    No. 13-CA-192.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      Henry L. Klein, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant, Sherri Pignona.
    Michael J. Vondenstein, Attorney at Law, Metairie, Louisiana, for Defendant/Appellee, George Allan Farber, M.D.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERT M. MURPHY.
   SUSAN M. CHEHARDY, Chief Judge.

|2In this medical malpractice action, the plaintiff seeks reversal of the trial court’s grant of summary judgment in favor of the defendant physician, George Farber, M.D. We affirm.

FACTS AND PROCEDURAL HISTORY

In her petition, filed on September 22, 2010, Sherri L. Pignona complained that in September 2009, Dr. George Farber performed surgery on her that was to consist of two parts, but Dr. Farber quit the practice of medicine before performing the second part of the surgery, and without providing her with follow-up care for the first procedure.

The plaintiff alleged as follows: Dr. Far-ber’s specialty was dermatopathology, and the surgery was for surgical excision, biopsy and repair of fibrolipoma of the right lower abdomen. Dr. Farber performed the first part of the surgery on September 15, 2009, and the second part was to be performed as soon as the first part healed sufficiently. On September 22, 2009 (one week after the first procedure), she was informed that Dr. Farber had retired and could not provide her with further care. She subsequently discovered that “in September of 2009, Dr. Farber was the subject of disciplinary proceedings by the Louisiana | .¡Board of Medical Examiners and was at the cusp of having his license to practice medicine revoked.”

The plaintiff further alleged that Dr. Farber violated the standard of care expected of dermatologists and/or dermato-pathologists in the following particulars:

(a) In failing to disclose to petitioner that he (Dr. Farber) was the subject of disciplinary proceedings which had reached culmination and would result in a revocation of his license to practice medicine handed down October 20, 2009;
(b) In failing to disclose the risk, dangers and perils associated with the anticipated medical procedure;
(c) In failing to provide petitioner with sufficient information to adequately meet the rigors of informed consent under Louisiana law;
(d) by failing to inform petitioner that he had lost his eligibility to be insured by the Louisiana Patients Compensation Fund for at least five years prior to petitioner’s submission of her medical care to Dr. Far-ber;
(e) In attempting to-perform a surgical procedure which should have been performed by a plastic or cosmetic surgeon;
(f) by neglecting and refusing to provide follow-up care; and
(g) By any and all acts or omissions which may be established at the trial of this case.

The plaintiff asserted that “Dr. Farber’s acts of deception, dishonesty and misrepresentations constituted violations of the Louisiana Unfair Trade Practices Act, entitling petitioner to multiplied damages, attorney’s fees and costs.”

She alleged, finally, that as a consequence of the acts and omissions set forth, she “remains scarred, her underlying needs for cosmetic surgery unresolved, and saddled with excessive debt due to the medical malpractice committed by Dr. Farber.”

l4On May 1, 2012, the defendant filed a motion for summary judgment, asserting that the plaintiff cannot carry her burden of proof in this medical malpractice action because there is no evidence that the defendant breached the applicable standard of care. The defendant asserted further that there is no legal basis for the plaintiff’s claim under Louisiana’s Unfair Trade Practices Act. In support of the motion, the defendant pointed out that the plaintiff failed to present specific facts to support her claim against the defendant, and she had no expert to testify that the defendant had deviated from the standard of care in the malpractice claim.

In opposition, the plaintiff argued that the motion for summary judgment was premature and without merit, because Dr. Farber lied to the plaintiff by failing to tell her he was about to lose his medical license and by failing to tell her he was “going to leave the job half-done.” The plaintiff asserted that an expert was not necessary to establish these facts.

In rebuttal, the defendant argued that the plaintiff had failed to provide evidence to support her conclusory allegations, that expert testimony is required where there is no obvious negligence, that the plaintiff had not alleged an obviously careless act such as amputating the wrong limb, and that the plaintiff had consulted with a number of surgeons after the September 15, 2009 procedure, but none had told her that Dr. Farber deviated from the appropriate standard of care.

After argument, the trial court took the matter under submission and later rendered summary judgment in favor of the defendant. The judgment included reasons for judgment, which stated as follows:

This is a Medical Malpractice case and accordingly is subject to the provisions of the Medical | ¿Malpractice Act. In order to make a prima facie showing in a Medical Malpractice action, the plaintiff must prove:

1. that the physician breached the applicable standard of care — an element that requires expert testimony; or
2. that the negligence is so obvious that a lay person can infer negligence without expert testimony on the standard of care and breach thereof.
In the instant case, the Petitioner has made the following allegations:
1. the first procedure Dr. Farber performed left the Petitioner with scars;
2. that Dr. Farber was removed from the practice of medicine prior to completing the second procedure on her opposite side.

If the Court follows these allegations logically:

1. Since the Petitioner was not satisfied with the result of the first procedure — that it left her with a scar — chances are that she would not have returned to Dr. Farber even if he was still practicing medicine.
To play off the analogy used by the Petitioner’s Counsel ... (that the Defendant’s actions were the equivalent to Dr. Farber as a barber handing the Plaintiff the scissors after cutting half her hair) the Court believes that the Plaintiff would have taken the scissors from him before he had a chance to cut the other side.
2. Further, the Court finds that the result of a scar from a surgical procedure does not equate to negligence “so obvious” that a lay person could
infer negligence without the aid of expert testimony.

At the hearing, counsel for the plaintiff had requested additional time within which to complete discovery and to obtain supporting expert testimony. The court noted that more than two years had passed from the filing of the suit to the hearing on the motion for summary judgment, and that the plaintiff had had “more than ample time” within which to identify an expert and to address the burdens placed Ison her by the summary judgment standard. The court stated it found the argument that discovery must be completed in order to identify an expert as “disingenuous.” Last, the court agreed with the defendant’s argument that the plaintiffs claim under the Louisiana Unfair Trade Practices Act is trumped by the Medical Malpractice Act.

The plaintiff filed a motion for new tidal, which was denied after a hearing. The court found no factual or legal basis to grant the motion, stating, “Contrary to movant’s reading of this Court’s August 7, 2012 judgment, the basis of that judgment was the plaintiffs failure to support her claim with expert medical testimony as required by La. C.C.P. art. 966(B). Further, this Court declines to grant Plaintiff another continuance in order to secure expert testimony.”

The plaintiff appealed.

ARGUMENTS

The plaintiffs brief fails to comply with the Uniform Rules of Louisiana Courts of Appeal, in that it does not specify the errors alleged on the appeal, or the issues presented for review. See Uniform Rules — Courts of Appeal, Rule 2-12.4. It merely sets out the proceedings in the district court. In addition, the brief refers to documents the plaintiff attached to her Motion for New Trial, regarding information from a physician. Her argument, made without reference to a specific assignment of error, is that summary judgment was inappropriate because “[i]t was error for the trial court to decide the case on what the district court thought [the plaintiff] would or would not do had she known that [the defendant] was being expelled from the profession.... ” She also argues, “Common sense dictates that 17Pr. Farber, whose rug was about to be pulled out from under him, should answer for his dishonesty and his failure to complete the procedure he started.”

The plaintiffs brief states in conclusion that the district erred as to both fact and law. She states, “There was no issue as to standard of care although those words were in our pleadings. It was a deception and abandonment case.” She seeks reversal of the judgment.

In opposition, the defendant points to the failure of the appellant to raise any issues for review in her brief. The defendant asserts that the plaintiffs mere statement that the district court “erred in both fact and law” has no legal merit. The defendant nevertheless addresses issues raised in the district court, stating the district court properly granted summary judgment because the plaintiff had no expert opinion to establish that a breach of the standard of care occurred: “The mere fact that she had a scar is not enough to establish negligence without the required guidance of expert testimony.... [Without such testimony, [the plaintiff] could not carry her burden of proof....”

Further, the defendant addresses the plaintiffs claim, in her motion for new trial, that the trial court’s ruling was premature because she had not yet completed discovery. The defendant contends the trial court correctly found that the plaintiff had had ample time to complete discovery, not only in the time span between filing of the suit and filing of the motion for summary judgment, but also because the hearing on the motion for summary judgment was postponed twice. The defendant points out that the amount of time to complete discovery is not unlimited.

Finally, the defendant argues there is no legal basis for the plaintiffs unfair trade practices claim, because the Medical Malpractice Act is a specific law applying to medical malpractice actions. As such, it trumps the Unfair Trade Practices Act, which is a general law. Hence, the defendant contends, the |Rsummary judgment was correct and the plaintiffs motion for new trial was properly denied.

LAW AND ANALYSIS

We note, initially, the appeal in this case was taken from the denial of the motion for new trial rather than from the judgment on the merits, yet the briefs argue the merits of the denial of the motion for summary judgment rather than the denial of the motion for new trial.

The denial of a motion for new trial is an interlocutory judgment which is not appealable. Rather, the denial of a motion for new trial is reviewable only under the appellate court’s supervisory jurisdiction for abuse of discretion.
However, our courts have held that appeals are favored in law, must be maintained whenever possible, and will not be dismissed for mere technicalities. Any doubt concerning the validity of an appeal should be resolved in favor of the appellant to the end that an appeal can be sustained.
Thus, an appeal from the order denying a new trial, rather than from the judgment from which the new trial is sought, is improper. However, when the motion for appeal refers to a specific judgment denying a motion for new trial, yet the appellant exhibits a clear intention to appeal instead the judgment on the merits, then the appeal should be considered. This view conforms to the mandate of LSA-C.C.P. art. 865 to construe every pleading so “as to do substantial justice.” [Citations omitted.]

Lozier v. Estate of Elmer, 10-754, pp. 3-4 (La.App. 5 Cir. 2/15/11), 64 So.3d 237, 239, writ denied, 2011-0529 (La.4/25/11), 62 So.3d 93.

In reviewing the motion for appeal as well as the plaintiffs appellate brief, it is clear that the plaintiff intended to appeal the substance of the judgment on the merits. Accordingly, we construe the motion for appeal as an appeal on the merits of the grant of the summary judgment.

[ ^Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smitko v. Gulf South Shrimp, Inc., 2011-2566, p. 7 (La.7/2/12), 94 So.3d 750, 755.

Specifically, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08-339, p. 3 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Sun Belt Constructors, a Div. of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350, 352 (La.App. 5 Cir.1988).

At the time of the hearing, La. C.C.P. art. 966 provided for summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, showed that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.

The initial burden of proof is with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2); Schultz v. Guoth, 2010-343, p. 6 (La.1/19/11), 57 So.3d 1002, 1006. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof [inat trial. Id. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. Id.

Medical Malpractice Claims

In support of the motion for summary judgment, the defendant attached a copy of the plaintiffs deposition. The plaintiff testified that after Dr. Farber performed the September 15, 2009 procedure on her, she consulted four other doctors about the scar remaining from the September 2009 procedure, as well as about other possible procedures. All of these surgeons told her essentially the same thing, that is, that the scar could be repaired and she could then have a “tummy tuck.” The plaintiff admitted that none of these doctors ever told her that Dr. Farber deviated from the appropriate medical standard of care in her treatment. She simply claims she was told that she should have had a cosmetic surgeon perform the scar revision procedure.

At the hearing the trial judge asked plaintiffs counsel if the allegations against the defendant arise in medical malpractice. Plaintiffs counsel responded, ‘Tes, Your Honor. However, there’s no limitation of the time that you have to get an expert.”

The trial court disagreed, noting that the case had been ongoing for approximately three years. The court stated that the defendant was entitled to file a motion for summary judgment to find out the specific allegations of malpractice made by the plaintiff.

In response, plaintiffs counsel said, ‘Tour Honor, the allegations of malpractice are — in the aspect of whether or not he deviated from the standard of care, in connection with how he conducted the surgery, we do not have a doctor who says that was a deviation from the standard.” Plaintiffs counsel also reiterated that he did not believe he had “run out of time” to get an expert.

|nThe trial court reminded counsel that it is the plaintiffs burden to carry the action to the next stage. After plaintiffs counsel repeated his opinion that there is no time limitation, the court reminded counsel that the matter had been going on for three years. The court advised plaintiffs counsel that there was a problem with the plaintiff not moving the case forward in a timely manner. Plaintiffs counsel retorted, “I can find no law that says you’ve got a cutoff date.”

The record shows not only that the motion for summary judgment was argued nearly three years after the suit was filed, but also the summary judgment hearing was continued twice on the plaintiffs motion.

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony.

Samaha v. Rau, 2007-1726, pp. 5-6 (La.2/26/08), 977 So.2d 880, 883-884; Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228.

Here, the mere fact that the plaintiff had a scar after the September 15, 2009 surgery is not enough to establish negligence without the required guidance of expert testimony. Similarly, her complaint that the defendant stopped practicing medicine prior to performing the second planned procedure has not been shown to have caused her harm. Without expert testimony that there was a breach of the applicable standard of care, the plaintiff cannot carry her burden of proof.

Nor is there merit to the argument that the plaintiff should have been granted more time to obtain an expert opinion. There is no absolute right to delay a trial |12court’s consideration of a summary judgment motion until discovery is completed; rather, the trial judge has discretion to issue a summary judgment or to require further discovery. Orillion v. Alton Ochsner Med. Found., 97-115, p. 6 (La.App. 5 Cir. 5/28/97), 695 So.2d 1063, 1065, writ denied, 97-1725 (La.10/13/97), 703 So.2d 617.

Yet, the law does require that parties be given a fair opportunity to present their claim. Id. It is within the trial court’s wide discretion to render a summary judgment, if appropriate, or to allow further discovery. Musa v. Litton-Avondale Indus., Inc., 10-627, p. 13 (La.App. 5 Cir. 3/29/11), 63 So.3d 243, 251, writ denied, 2011-1256 (La.9/23/11), 69 So.3d 1163. The trial court’s decision in this regard should only be reversed upon a showing of an abuse of that discretion. Id.

Accordingly, we find no abuse of the trial court’s discretion in refusing to allow the plaintiff additional time for discovery in this case.

Unfair Trade Practices Act Claim

Finally, with respect to the claim under the Louisiana Unfair Trade Practices Act (properly known as the Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1401 et seq.), we agree with the trial court. “It is a fundamental rule of statutory construction that when two statutes deal with the same subject matter, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.” Burge v. State, 2010-2229, p. 5 (La.2/11/11), 54 So.3d 1110, 1113; State v. Campbell, 03-3035, p. 8 (La.7/6/04), 877 So.2d 112, 118. Hence, the trial court did not err in stating that the plaintiffs claims here are not subject to the Unfair Trade Practices Act. The burden of proof in this action is set out in La. R.S. 9:2794 which, as a statute specifically directed to medical malpractice, must prevail against the general provisions of La. R.S. 51:1405.

| ^DECREE

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

      . At the hearing on the motion for summary judgment, defense counsel stated that the matter had not gone through a Medical Review Panel because the defendant was not a qualified health care provider under the Medical Malpractice Act.

      . "The brief of the appellant ... shall set forth ... a specification or assignment of alleged errors relied upon, tire issues presented for review, an argument confined strictly to the issues of the case.... All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” Uniform Rules — Courts of Appeal, Rule 2-12.4.

      . Acts 2012, No. 257, § 1 removed the words "on file” from Section B, subsection 2 of Article 966, effective August 15, 2012. The instant motion for summary judgment was heard on July 23, 2012. The parties did not introduce evidence at the hearing, but under Article 966 as it existed at the time, the court can consider all documents on file.