author: GARRETT, J.

text:
    Marethea EDDENS, Plaintiff-Appellant v. EXCEPTIONAL CLIENT CARE, LLC, Defendant-Appellee.
    No. 48,747-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Marethea Eddens, In Proper Person.
    Guglielmo, Lopez, Tuttle, Hunter & Jar-rell, L.L.P. By: H. Douglas Hunter, Opel-ousas, Misti L. Bryant, New Orleans, for Defendant-Appellee.
    Before WILLIAMS, PITMAN and GARRETT, JJ.
   GARRETT, J.

hMarethea Eddens’ claims against her employer, Exceptional Client Care, LLC, were dismissed with prejudice by the workers’ compensation judge (WCJ) in March 2012. Thereafter, she filed a second disputed claim for compensation based on the same incident. The WCJ granted the employer’s peremptory exception of res judicata. The claimant then filed the instant appeal. We affirm.

FACTS

On April 30, 2010, the claimant filed a disputed claim for compensation (Docket No. 10-03997). She alleged that on September 14, 2009, she was employed as a “direct support worker” when she slipped and fell on a wheelchair access ramp while caring for a client. She claimed to have injured her upper body, “including but not limited to, her arms, shoulders, hands, neck and upper back.”

The matter was eventually set for trial on January 3, 2011. However, following a joint motion, it was continued until August 24, 2011. Two days before trial, the defendant sought another continuance, which was denied. Although informed that the continuance had been denied, counsel for both sides failed to appear for trial. The WCJ dismissed the matter without prejudice, subject to the claimant’s right to request reinstatement within 30 |2days for good cause under Rule 5705 of the Workers’ Compensation Administration Hearing Rules.

The claimant moved to reinstate her claim. The WCJ specifically rejected the explanation offered by the lawyers for failing to appear for trial and found the attorneys’ conduct to be “disrespectful and bordering on contempt.” However, the WCJ stated that he would not hold the claimant responsible for the unprofessional conduct of counsel. The WCJ granted the claimant’s motion and reinstated her claim by judgment signed on October 27, 2011. In this judgment, the WCJ reset the case for trial on November 28, 2011.

On November 28, 2011, the WCJ signed a judgment dismissing the claimant’s case without prejudice at her expense. In this judgment, the WCJ observed that while the defendant appeared for trial through its counsel, the claimant failed to appear in person or through counsel. The WCJ further recounted that the claimant’s counsel faxed a letter to the clerk of court on November 23, 2011, stating that the claimant had discharged him. The letter also requested that the matter be removed from the docket on November 28, |<¡2011, and that a status conference be set to advise the claimant of the future handling of the matter. However, the letter was not accompanied by a motion to withdraw or a motion to continue. In view of these facts and the claimant’s failure to appear for trial, the WCJ dismissed the claimant’s suit without prejudice pursuant to Hearing Rule 5705(A)(4), but noted that the claimant was allowed 30 days from the date of judgment to petition for reinstatement under Hearing Rule 5705(C). The claimant was ordered to appear on March 1, 2012, to show cause why the dismissal should not be deemed to be with prejudice, pursuant to Hearing Rule 5705(D).

The claimant was served with notice by certified mail. However, she failed to appear in court on March 1, 2012. Consequently, on that date, the WCJ signed a judgment supplementing the November 28, 2011, judgment to reflect that the matter was dismissed with prejudice at the claimant’s expense.

On September 5, 2012, the claimant filed another disputed claim for compensation (Docket No. 12-06260) based upon the same September 2009 incident. In response, the employer filed a peremptory exception of res judicata. It asserted that the newly filed disputed claim for compensation was barred because the employee’s claims were dismissed with prejudice in the March 1, 2012, judgment.

A hearing on the employer’s exception of res judicata was held on November 1, 2012. The claimant appeared and addressed the WCJ. She asserted that her lawyer walked out on her just days before her November 28, 2011, court date. She further stated that she called “up here” J^and talked to someone who told that she could file her claim again. However, the claimant admitted receipt of the notice to return to court on March 1, 2012, and her failure to comply with that notice. The WCJ explained to the claimant that when she failed to show up on March 1, 2012, the November 2011 judgment was converted to a dismissal with prejudice. The WCJ further informed her that the prior judgments were now final and could not be appealed.

At the conclusion of the hearing, the WCJ granted the employer’s exception. A judgment in conformity with the ruling was signed on December 4, 2012, granting the exception and dismissing the matter with prejudice at the claimant’s costs. On December 11, 2012, the claimant requested written reasons for judgment. In response, the WCJ adopted the oral reasons issued at the hearing.

The claimant filed a request for appeal in Docket No. 12-06260 “due to insufficient representation by [her attorney].” The WCJ granted a devolutive appeal from the judgment rendered on November 1, 2012, and signed on December 4, 2012, which granted the employer’s exception of res judicata. Following a hearing on appeal costs on April 25, 2013, the claimant was subsequently granted leave to proceed in forma pauperis on her appeal.

_]¿LAW

The law of res judicata in Louisiana is set forth in La. R.S. 13:4231, which provides as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

La. R.S. 13:4232 provides, in relevant part, that a judgment does not bar another action by the plaintiff in three situations:

(1) When exceptional circumstances justify relief from the res judicata effect of the judgment;
(2) When the judgment dismissed the first action without prejudice; or,
(3) When the judgment reserved the right of the plaintiff to bring another action.

After a final judgment, res judicata bars relitigation of any subject matter arising from the same transaction or occurrence of a previous suit. Ken Lawler Builders, Inc. v. Delaney, 36,865 (La. App.2d Cir.3/5/03), 840 So.2d 672. This promotes judicial efficiency and final resolution of disputes. Ken Lawler Builders, Inc. v. Delaney, supra.

| ^Implicit in the concept of res judi-cata is the principle that a party had the opportunity to raise a claim in the first adjudication, but failed to do so. Ken Lawler Builders, Inc. v. Delaney, supra.

Identification of issues actually litigated for purposes of determining whether res judicata bars an issue shall be determined not solely from the pleadings but also by examining the entire record in the first suit. Ken Lawler Builders, Inc. v. Delaney, supra.

Once a final judgment acquires the authority of the thing adjudged, no court has jurisdiction to change the judgment. Ken Lawler Builders, Inc. v. Delaney, supra.

The party who urges the exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence. If there is any doubt as to its applicability, the exception must be overruled. Fox v. Reynolds Indus. Contractors, 44,938 (La.App.2d Cir.1/27/10), 33 So.3d 895, unit denied, 2010-0676 (La.5/28/10), 36 So.3d 250.

Under the law of workers’ compensation, “[a] judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal.” La. R.S. 23:1310.8(E); Frye v. Mills, 45,557 (La. App.2d Cir.9/22/10), 47 So.3d 1155, writ not considered, 2010-2624 (La.1/28/11), 56 So.3d 976; Fox v. Reynolds Indus. Contractors, supra.

DISCUSSION

In her brief to this court, the unrepresented claimant argues only the merits of her workers’ compensation claim and fails to address the res judicata issue. The employer asserts that the only issue before this court on 17appeal is the WCJ’s ruling on the exception of res judicata. It further contends that the WCJ did not err in granting its exception of res judicata.

We agree with the employer. Unquestionably the parties and the claims in the two suits are the same. The claimant was given an opportunity to litigate her claims against her employer in the first suit but failed to do so. The first suit was dismissed with prejudice, and no appeal was taken. That judgment is now final and, under the principles of res judicata, the claimant is barred from asserting the identical claims in the second suit.

Furthermore, none of the exceptions to the general rule of res judicata set forth in La. R.S. 13:4232 are applicable here. The circumstances are not exceptional, the judgment dismissing the first suit was not without prejudice, and there was no reservation of right to bring another action. La. R.S. 13:4232 is to apply only in “truly exceptional cases,” not situations where “the plaintiff has simply failed to assert a right or claim for damages through oversight or lack of proper preparation.” See 1990 Comment, La. R.S. 13:4232.

Under the circumstances presented here, the employer’s exception of res judi-cata was properly granted.

CONCLUSION

We affirm the judgment of the workers’ compensation judge granting the exception of res judicata filed by the employer, Exceptional Client Care, LLC. Costs of this appeal are assessed against the claimant, Marethea Eddens.

AFFIRMED.

      . La. Admin. Code tit. 40, pt. I, § 5705 provides, in relevant part:
      A. A claim may be dismissed without prejudice after contradictory hearing properly noticed by the court on the judge’s own motion or on ex parte motion of a party for the following reasons:

      4. where a claimant fails to appear for any properly noticed conference or hearing;

      C. Any order of dismissal shall allow for reinstatement of the action within 30 days for good cause shown.
      D. The workers’ compensation judge may order the claim dismissed, with prejudice, after a contradictory hearing, when it is shown that more than 90 days has elapsed since a claim was dismissed for any reason listed in Subsection A of this Section and no good cause has been shown for reinstatement.

      . The claimant's brief to this court indicates that she spoke to this person after the March 1, 2012, hearing.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Ronald Earl WILLIAMS, Appellant.
    No. 48,528-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.
    Douglas L. Harville, for Appellant.
    Ronald Earl Williams, Pro Se.
    Charles R. Scott, II, District Attorney, Brian H. Barber, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   WILLIAMS, J.

| ]The defendant, Ronald Earl Williams, was charged by bill of information with possession of a Schedule II controlled dangerous substance (cocaine) in violation of LSA-R.S. 40:967(C). In exchange for a sentence recommendation of 18 months at hard labor, the defendant pled guilty as charged. The trial court sentenced the defendant to the agreed-upon term of 18 months at hard labor, with credit for time served. The defendant’s appellate counsel has filed a motion to withdraw, together with a brief pursuant to Anders v. Califor nia, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there are no nonfrivolous issues upon which to base an appeal. For the following reasons, we affirm the defendant’s conviction and sentence and grant counsel’s motion to withdraw.

FACTS

On October 12, 1998, the defendant, who was represented by counsel, pled guilty as charged to possession of a Schedule II controlled dangerous substance (cocaine). At the hearing on the defendant’s motion to suppress, two Shreveport Police officers testified that on January 9, 1998, they encountered the defendant and another man standing in the street at the intersection of Clanton and Wallace Streets in Shreveport. The officers |2began speaking to the men, and during this encounter they noticed that the defendant was holding a brown cigar; the cigar was filled with green vegetable matter. One of the officers placed the defendant under arrest for possession of marijuana. During the subsequent search of the defendant’s clothing, a baggie of marijuana and another baggie containing approximately one gram of crack cocaine were found in his pocket.

The defendant was charged by bill of information with possession of a Schedule II controlled dangerous substance (cocaine) in violation of LSA-R.S. 40:967(C). The district court denied the defendant’s motion to suppress the evidence. Subsequently, the defendant pled guilty as charged, in exchange for the state’s agreement to recommend an 18-month sentence, with credit for time served.

On October 12, 1998, the defendant appeared in court with counsel. The defendant informed the court that he was 19 years old, had a ninth-grade education, and that his attorney had been able to answer his questions. The court informed the defendant that by pleading guilty, he was waiving his right to trial by jury, his right to cross-examine the witnesses against him and his privilege against self-incrimination. The defendant stated that he understood his rights and that he was willing to waive them. Thereafter, the prosecutor stated that the factual basis for the charge was the defendant’s possession of one gram of crack cocaine, and the defendant agreed that the recitation was correct. The defendant also affirmed that no one had forced him to plead guilty and that he understood the recommended sentence. Finally, the defendant informed the court that he had understood all of the court’s questions. The court was satisfied that the defendant was ^entering his plea knowingly and voluntarily; therefore, the court accepted the plea and imposed the agreed-upon sentence.

On October 14, 1998, the defendant filed a motion for appeal, arguing that he would not have pled guilty had he known that he “would be sentenced to a special mandatory parole term.” The trial court did not rule on that motion. In the intervening years, the defendant obtained various documents relating to this conviction and unsuccessfully applied for post-conviction relief. However, in 2012, the defendant filed an out-of-time application for post-conviction relief that contained proof that he had filed a motion for an appeal two days after he pled guilty in 1998; that motion had not been ruled upon by the district court. Once the omission was discovered, the district court granted the defendant’s motion for appeal.

As stated above, the defendant’s appellate counsel has filed a motion to withdraw, together with an Anders brief, alleging that there are no nonfrivolous issues to raise on appeal. See, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlined the procedural history of the case and the agreement under which the defendant’s guilty plea was entered. Appellate counsel also verified that a copy of the motion to withdraw and his brief had been mailed to the defendant, in accordance with Anders, Jyl-es, Mouton and Benjamin, supra. Appellate counsel notes that the defendant did not enter a plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976); therefore, he waived his right to a review of the ruling on the motion to suppress.

l4The defendant has filed a pro se brief, contending his guilty plea was invalid. The defendant argues that the trial court engaged in “judicial bargaining” because the court “created the impression in the mind of the appellant that he would not receive a fair trial” if he proceeded to trial. According to the defendant, he “felt induce[d] to plea[d] guilty by trial judge judicial bargaining.”

We have carefully reviewed the transcript of the guilty plea proceeding. During the proceeding, a bench conference took place between the court, defense counsel and the state. Thereafter, defense counsel informed the court that the defendant would enter a guilty plea. At that point, the following colloquy took place:

THE COURT: Mr. Williams, have you had a chance to discuss this with your lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand what you are doing today?
THE DEFENDANT: Yes, sir.
THE COURT: It’s the Court’s understanding that you’re going to enter a plea of guilty to one count of possession of controlled dangerous substance Schedule II knowing the Court is going to sentence you to 18 months at hard labor and give you credit for time served. Has that been explained to you?
THE DEFENDANT: Yes, sir.
THE COURT: Is that what you want to do?
THE DEFENDANT: Yes, sir.

Thereafter, the trial court meticulously advised the defendant of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The defendant responded, “Yes, sir” to each inquiry and repeatedly stated that he understood the rights he was waiving by pleading guilty. At the conclusion of the colloquy, the trial judge asked, “Have I asked you any questions that you do not understand?” The defendant responded, “No, sir.”

Viewing the record as a whole, we find no support for the defendant’s claim that the trial court impermissibly participated in the guilty plea process. The court was careful to ensure that the defendant understood the proceedings and that he was satisfied with his legal representation. This assignment is without merit.

We have reviewed the record for errors patent. We have found none.

CONCLUSION

For the foregoing reasons, appellate counsel’s motion to withdraw is granted, and the defendant’s conviction and sentence are affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.

      . The bill of information states, "State of Louisiana versus Ronald Earl Williams aka Ronald Epperson.” During the plea colloquy, the trial court noted that the defendant had been appearing in court under two names, Ronald Earl Williams and Ronald Earl Epperson. The defendant responded, "Epperson” when the trial court asked, “Which name do you go by?”

      . The defendant pled guilty on October 12, 1998 and was sentenced the same day. On October 14, 1998, the defendant filed a pro se motion for appeal, which was not acted upon until 2012, when the defendant brought the matter to the district court’s attention. On May 1, 2013, the district court granted the defendant’s motion for appeal. Although the defendant has served his sentence for the instant offense, he is currently incarcerated for another offense.


author: BROWN, Chief Judge.

text:
    Annette BROWN, Plaintiff-Appellant v. CITY OF MONROE, et al., Defendants-Appellees.
    No. 48,764-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Anthony J. Bruscato, for Appellant.
    Nanci S. Summersgill, City Attorney-City of Monroe, for Appellee.
    Before BROWN, STEWART, and GARRETT, JJ.
   BROWN, Chief Judge.

Iiln this lawsuit, plaintiff, Annette Brown, asserted claims of false arrest, false imprisonment, and malicious prosecution against the City of Monroe, Louisiana, and the Sheriff of Ouachita Parish. The Sheriff was dismissed on the grant of a motion for summary judgment. A bench trial proceeded against the City. The trial court found that plaintiff was “arrested, booked and jailed for an offense she undoubtedly did not commit.” The trial court, however, found that the actions that were taken (by the police) were reasonable and appropriate. For the reasons expressed, we reverse and render judgment in favor of plaintiff.

Facts

On September 30, 2009, Monroe Police Officer Darren Canales responded to a complaint. His report played a material part in the ensuing drama and reads as follows:

On 9/30/09 at 0118 hrs. I, Cpl. Canales, was dispatched to the Library Lounge in ref to a stabbing. Upon arrival, I spoke with Lamar Carroll who advised just before log time he was walking west on DeSiard in approx. 5400-5600 blk when he was attacked by (2) black males wearing dark clothing. Carroll advised the attack was unprovoked and one of the men stabbed him in the left arm and stomach ... At 0256 hrs, I was dispatched to the LSU Medical Center in ref to Carroll changing his story. I spoke with James Cerda (LSU Police) who advised after the OPSO left the hospital Carroll advised he was stabbed by his girlfriend at 5330 DeSiard near the office in an altercation with his girlfriend, Annette Brown. I met OPSO at 5220 Highland apt 15 and contacted Carroll ... Carroll advised he had an argument with Brown because she discovered he lives with another female on Highland Dr. and Carroll advised Brown chased him with a knife from the apt. (on DeSiard) to near the office area where she cut him ... OPSO issued Carroll a summons for filing a false report and I attempted to locate Brown at 5330 DeSiard apt. 42 and did not locate her.

12Significantly, Carroll’s girlfriend’s name was Annette “Bryant,” who resided with Carroll at the Colonial Manor Apartments at 5330 DeSiard Street. Annette “Bryant” was born on March 4, 1970. The affidavit of the apartment complex manager, Vicki Smith, was admitted into evidence and stated that she had managed the apartment complex since 1999 and was familiar with all the tenants. She stated that Annette “Bryant” was listed as the tenant of Apartment 41 (not #42), and that the electric meter for that unit was registered under Carroll’s name. She stated that she did not know Annette Brown. Further, she had never been contacted by any law enforcement officer concerning Annette Bryant or Annette Brown or about the stabbing.

Officer Canales filed his report on September 30, 2009. The case was assigned to Detective Jeffery Dowdy whose report states the following:

On 10/2/09, at 0900 hours, I, Detective J. Dowdy reviewed this case. It appears the elements for the crime of aggravated battery have been met. This case will be reclassified to that crime. I attempted to contact both the victim, Lamar Carroll and suspect, Annette (Hubbard) Brown, but was unsuccessful.

Det. Dowdy’s report identified the suspect as Annette “Brown” born on February 17, 1966, and residing at 5330 DeSiard Street, Apt. 42. The name and birth date are that of the plaintiff but it is now clear that plaintiff never resided at the address given by Det. Dowdy. Further, Det. Dowdy was unable to explain how he got the middle name “Hubbard.” Ms. Brown is listed in the data bank as Annette Denean Brown.

On October 2, 2009, after reviewing Officer Canales’ report, Det. Dowdy conducted an identification search on the Think-Stream computer database. His search produced a list of 18 black females named “Annette IsBrown” who resided in the state of Louisiana. Plaintiff was the only one of the 18 women who resided in Ouachita Parish. According to Det. Dowdy, he either called or went to apartment 42 at the DeSiard address and no one was home. He did not go to the Highland Drive address where Officer Canales reported the victim resided. The same day, October 2, 2009, Det. Dowdy sent the case to the district attorney.

In November 2009, the district attorney’s office filed charges against plaintiff, “Annette Brown,” then subsequently procured an arrest warrant. Ouachita Parish Sheriff Office (“OPSO”) record clerk Deputy Lia Fontana testified that the warrant she received had the name, race, date of birth and the DeSiard address. Deputy Fontana checked the OPSO’s record and found one record involving Annette Brown. Everything matched except the address which was 2612 Deloach Circle. Deputy Fontana inputted the 5380 DeSiard address. She stated that Annette Brown was never associated in the law enforcement database with the 5330 DeSiard Street address until Deputy Fontana entered it into the OPSO database when logging in the arrest warrant information in January 2010.

Detective Dowdy, however, testified that Annette Brown was connected to DeSiard address via the ThinkStream search he performed on October 2, 2009. He sent the file to the D.A. for an arrest warrant because the name, gender, race and the address matched. He did not make a copy of what he pulled up from the database.

The trial court had Detective Dowdy repeat his search at the time of trial in 2013. That search showed 222 Vernon, which was plaintiffs grandmother’s address; 103 Cedar Creek, which was plaintiffs mother’s Laddress; 2612 Deloach; and finally, 5330 DeSiard. The source for these addresses was the OPSO. The trial court concluded that:

... what Dowdy probably did was ... he found Annette Brown in Ouachita Parish, the one, and he just sent the address over ... to the DA’s office.... Somehow — and he may not even remember because this was a number of years ago but when he goes back and looks years later now she’s linked up with the 5330 DeSiard Street. The most logical explanation for that — if she wasn’t linked for — with it back in 2009 was that it’s a circular thing. He sent the warrant over there, she was arrested on the warrant, she [was] entered in some database, they update[d] it ...” (Officer Dowdy’s) testimony seems credible ... I think there’s a possibility he could be mistaken in what he remembers ... memory can play tricks on you.

On January 25, 2010, Annette Brown was at work at The Oaks Nursing Home in West Monroe when Dep. David Germany of the OPSO came in with a warrant for her arrest. The arrest warrant named Annette Brown, 5330 DeSiard #42, and the charge was aggravated battery. Ms. Brown protested to Dep. Germany that he had the wrong person; she showed him her driver’s license, which listed her address on Deloach Circle, in the Bernstein Park area and nowhere near DeSiard Street, and insisted that she knew nothing about any aggravated battery. Dep. Germany took her into custody and brought her to Ouachita Correctional Center. There, she again tried to convince booking officers that she had nothing to do with the crime. After spending approximately one hour in jail, Ms. Brown was released on bail after paying a bail bondsman $1,255 to cover her $10,000 bond.

After her release, she went to the Monroe Police Department, looked at the offense report and saw that she was charged with battering her alleged boyfriend, Lamar Carroll, outside a lounge on DeSiard Street on September 30, 2009. She assembled her documents and went to the district attorney’s office. Ms. Brown was able to show that she has resided at 2612 Deloach | r,Circle since 2007 and was never associated with the DeSiard Street address or Carroll, the complainant. Ms. Brown produced her driver’s license and hospital records that showed she was released from E.A. Conway Hospital at approximately 4:00 p.m. on September 29, 2009, following an extended stay due to complications from gall bladder surgery. The stabbing occurred at approximately 1:00 a.m. on September 30, 2009. Within 48 hours of her arrest, the D.A.’s office confirmed Ms. Brown’s account, dismissed the charge, and cancelled the warrant.

Ms. Brown made numerous requests to city and parish officials for reimbursement of her $1,255 bond fee but was unsuccessful.

Discussion

Liability

A claim for negligent infliction of genuine and serious emotional distress is a viable claim in Louisiana. See, Moresi v. State Dept. of Wildlife and Fisheries, 567 So.2d 1081 (La.1990); see also, Barrino v. East Baton Rouge Parish School Bd., 96-1824 (La.App.lst Cir.06/20/97), 697 So.2d 27. Recovery for mental anguish or emotional distress is based on La. C.C. art. 2315, which provides in part that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. | ^Courts use the duty-risk analysis to determine recovery under article 2315. Barrino, 697 So.2d at 33. For liability to attach under the duty-risk analysis, the plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm or damages, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Hardy v. Borne, 98-2821 (La.09/08/99), 744 So.2d 606.

Probable cause to arrest is an absolute defense to any claim against police officers for wrongful arrest, false imprisonment, or malicious prosecution. Harris v. Eckerd Corp., 35,135 (La.App.2d Cir.09/26/01), 796 So.2d 719. Police officers have probable cause to arrest an individual when the facts and circumstances within their knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent person in believing that the suspect had committed an offense. Id. Thus, probable cause has been described as a zone within which reasonable mistakes will be excused. Kelley v. Myler, 149 F.3d 641 (7th Cir.1998).

A duty exists for any law enforcement agency to correctly identify the suspect prior to his arrest and incarceration. Hayes v. Kelly, 625 So.2d 628 (La.App. 3rd Cir.1993), writs denied, 93-3026, 93-3048 (La.02/04/94), 633 So.2d 171, 580. In Hayes, supra, a police detective incorrectly identified the plaintiff as being the person named in an arrest warrant because he shared a similar nickname to that of the actual suspect. Plaintiff was subsequently charged and incarcerated. Plaintiffs original and subsequent arrest reports showed different addresses and different 17nicknames for the individuals sought. The court in Hayes held that the sheriff was negligent in his investigation. In the case sub judice, the MPD owed a duty to Ms. Brown to properly discern whether or not she was the correct suspect prior to transmitting a report to the district attorney’s office that would lead to an arrest warrant.

The dissenting opinion of Justice Stevens, joined by Justice Brennan and Justice Marshall, in Baker v. McCollan, 443 U.S. 137, 155-6, 99 S.Ct. 2689, 2700-1, 61 L.Ed.2d 433 (1979), is instructive:

Certainly, occasional mistakes may be made by conscientious police officers operating under the strictest procedures. But this is hardly such a case. Here, there were no identification procedures. And the problems of mistaken identification are not, in my judgment, so insubstantial that the absence of such procedures, and the deprivation of individual liberty which results from their absence, should be lightly dismissed as of no constitutional significance. The practice of making a radio check with a centralized data bank is now a routine policy, followed not only in every traffic stop in Potter County, but also in literally hundreds of thousands of cases per day nationwide. The risk of misidentification based on coincidental similarity of names, birthdays, and descriptions is unquestionably substantial; it is reflected not only in cases processed by this Court, but also in the emphasis placed on securing fingerprint identification by those responsible for the national computer system. The societal interests in apprehending the guilty as well as the interests in avoiding the incarceration of the innocent equally demand that the identification of arrested persons conform to standards designed to minimize the risk of error. I am not prepared or qualified to define the standards that should govern this aspect of the law enforcement profession’s work, but I have no hesitation in concluding that an 8-day imprisonment resulting from a total absence of any regular identification procedures in Potter County was a deprivation of liberty without the due process of law that the Constitution commands. (Footnotes omitted).

We also find the conclusion of the majority in Baker v. McCollan, 443 U.S. at 146, 99 S.Ct. at 2695-6, to be instructive:

Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort-law principles. Just as “[mjedical malpractice |Rdoes not become a constitutional violation merely because the victim is a prisoner,” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official.

As did the trial court, we believe that Officer Dowdy is a conscientious police officer operating under the strictest procedures; however, his one-day cursory investigation fell short of reasonableness or probable cause. As a result, Officer Dowdy breached the duty of care owed to plaintiff, Annette Brown. If he had but put forth a reasonable effort to find the true identity of the suspect, the plaintiff would not have been arrested.

First of all, Officer Dowdy should have proceeded with greater caution given that the name “Annette Brown” was provided by a victim who had already falsely identified his attacker, an accusation that led to a misdemeanor charge of filing a false report. Secondly, once informed of the name Annette Brown, Det. Dowdy’s identification search on the ThinkStream computer database on October 2, 2009, failed to produce sufficient information to form the basis for probable cause to arrest. The evidence presented before this court shows that his search produced a list of 18 women named “Annette Brown” who resided in the state of Louisiana. Plaintiff was the only one of the 18 women who resided in Ouachita Parish. Apparently Det. Dowdy presumptively assumed that plaintiff was the suspect because she was from Monroe.

Additionally, based upon the testimony of Deputy Lia Fontana, Annette Brown was never associated in any law enforcement database with the 5330 DeSiard Street address until Deputy Fontana entered it into the |3OPSO database when logging in the arrest warrant information in January 2010. Prior to 2010, Annette Brown’s address was 2612 Deloach Circle, Monroe, La. 71202, and not associated with the 5330 DeSiard Street, Apartment 41 address. Det. Dowdy testified that Ms. Brown was connected to this address via the ThinkStream search performed on October 2, 2009; this court concurs with the lower court’s finding that his account of events was mistaken due to a lapse of time of more than three years.

This court finds that Det. Dowdy could have conducted additional measures to ensure a more accurate investigation. For instance, Officer Dowdy could have gone to the apartment complex where the incident took place and interviewed Vicki Smith, the Colonial Manor Apartment Manager. He would have easily discovered that no individual named Annette “Brown” resided in the complex. He would have also found that the inhabitant of 5330 DeSiard Street, Apartment 41 (not # 42), was named Annette “Bryant,” and that the utilities for that apartment unit were listed under Lamar Carroll’s name. Additionally, a cross check on Lamar Carroll on the OPSO’s computer database would have revealed the true identity of Carroll’s girlfriend as being Annette “Bryant,” not Annette “Brown.”

This court concurs with plaintiffs argument that because Det. Dowdy’s investigation was substandard, he failed to perform his duty to correctly identify the suspect prior to her arrest and incarceration and this was the cause-in-fact of the Ms. Brown’s wrongful arrest at her place of employment in the presence of her coworkers. The law imposes a duty on law enforcement officers to correctly identify a suspect prior to arresting and | ailing her specifically in instances such as these to prevent injuries of the exact nature that Ms. Brown suffered.

Quantum

Special damages must be specially pled or the amount of the damages must have the capability of being determined with relative certainty. Smith v. Escalon, 48-129 (La.App.2d Cir.06/26/13), 117 So.3d 576. General damages involve mental or physical pain and suffering, inconvenience, loss of intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured exactly in monetary terms. Sallis v. Bossier City, 28,483 (La.App.2d Cir.09/25/96), 680 So.2d 1333, writs denied, 96-2592, 96-2599 (La.12/13/96), 692 So.2d 376, 1063; Nelson v. City of Shreveport, 40-494 (La.App.2d Cir.01/27/06), 921 So.2d 1111.

This court reverses the trial court’s decision to deny Ms. Brown damages. We find that Ms. Brown presented sufficient evidence to prove that she wrongfully incurred a $1,255 fee to compensate a bail bondsman and a loss of $145 in wages as a result of her inability to work for two days. Ms. Brown was a lady of modest means who worked two jobs. She had no criminal record but is now in the criminal database. She was arrested at her place of employment and had to meet and explain her arrest to her employer.

We agree with Ms. Brown that she should be awarded general damages in the amount of $20,000 as a result of the mental suffering she experienced from being arrested at work in front of her co-workers, booked and incarcerated in the city jail.

Conclusion

For the foregoing reasons:

InIT IS ORDERED, ADJUDGED, AND DECREED that there be judgment against the City of Monroe and in favor of plaintiff, Annette Brown, in the amount of $21,400. Cost as allowed by law are assessed to the City of Monroe.

      . On appeal, a different panel of this court affirmed the grant of summary judgment in favor of the Sheriff. Brown v. City of Monroe, 47,396 (La.App.2d Cir.08/01/12), 103 So.3d 486.

      . The issue of statutory immunity was not addressed by the trial court in its written reasons for judgment, nor was this issue raised by the City in its appellate brief. However, an appellate court may notice ex proprio motu that the law does not extend a remedy against a particular defendant. La. C.C.P. art. 927(B). This action is against the City of Monroe. La. R.S. 9:2798.1 grants immunity against tort claims to the state and its subdivisions for their policy-making or discretionary functions. Such immunity is not automatic just because the official had some discretion. Immunity extends only to those choices narrowly defined as policy-making or planning. Operational choices, such as the one made in the case sub judice, which involve the implementation of policy, are not immune. See Berkovitz v. U.S., 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).


author: LOLLEY, J.

text:
    Alvin BONDS and Betty Bonds, Plaintiffs-Appellants v. SAPA EXTRUSIONS, LLC, Defendant-Appellee.
    No. 48,760-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Strauss & King, New Orleans, by Ber-ney L. Strauss, Rhett E. King, for Appellants.
    Robert Wickliffe Fenet, Baton Rouge, for Intervenor Appellants National Union Fire Ins. Co. & Gallagher Bassett Services, Inc.
    Cotton, Bolton, Hoychick & Doughty, Rayville, by John B. Hoychick, for Appel-lee.
    Before CARAWAY, DREW and LOLLEY, JJ.
   LOLLEY, J.

h Alvin Bonds and Betty Bonds appeal a summary judgment by the Fifth Judicial District Court, Parish of Richland, State of Louisiana, in favor of defendant, SAPA Extrusions, L.L.C. Gallagher Bassett Services, Inc. and National Union Fire Insurance Company intervene to recover medical expenses and disability payments made to Alvin Bonds. For the following reasons, we reverse the trial court’s judgment.

Facts

On April 19, 2010, Alvin Bonds (“Bonds”), an independent truck driver, arrived at the facility owned by defendant, SAPA Extrusions, L.L.C. (“SAPA”), in order to pick up a load of aluminum stadium seating on his flatbed trailer. After the aluminum was loaded on the flatbed by SAPA employees, Bonds climbed on top of the load to strap it down and install a tarp cover, which was the mandatory procedure at the SAPA facility. While Bonds was on top of the load installing the straps and tarp, he took a misstep and fell to the ground, seriously injuring himself.

SAPA required that the aluminum product be strapped down and covered in its facility. Further, SAPA required proper fall protection to be installed when drivers were in the process of loading their flatbeds. Apparently, the policy was explicitly provided and stated as follows:

THE SAFETY NETS MUST BE PROPERLY IN PLACE AND CATWALK POSITIONED AT THE FRONT OF THE TRAILER BEFORE THE DRIVER CAN GET ON TOP OF THE LOAD.

This fall protection consisted of netting which ran along the sides of the flatbed and a rolling catwalk which would be placed at and cover the open end of the flatbed. SAPA took responsibility for putting the netting and |;>catwalk in place prior to the load being strapped and tarped. SAPA concedes that at the time of the incident, the flatbed had been netted, but the catwalk had not been put in place.

Bonds and his wife, Betty, filed suit against SAPA, claiming that his fall was caused by the acts and/or omissions of SAPA, including the following: failing to provide a safe place to work; negligently bundling and loading the bleacher material, creating an unsafe condition; failing to provide fall protection for the front and rear of his trailer; and, failing to provide any assistance, safety area, and/or guidelines in securing tarps to the load. As a result of his injuries, Bonds claimed he incurred over $50,000.00 in medical bills, and his relationship with his wife of 45 years, Betty, had been impacted. Gallagher Bassett Services, Inc. (“Gallagher”) and National Union Fire Insurance Company (“National”) intervened to recover $33,895.00 in medical expenses and $49,642.00 in disability payments made to Bonds. SAPA subsequently filed a motion for summary judgment claiming it owed no duty to Bonds, and his claims against it should be dismissed as a matter of law. After a hearing on the matter, the trial court granted SAPA’s motion, and this appeal by the Bondses ensued.

Discussion

The Bondses bring one assignment of error on appeal and argue that the trial court erred in granting SAPA’s motion for summary judgment. The Bondses’ argument centers on SAPA’s duty, and they maintain that under the particular facts and circumstances of this case, SAPA owed Bonds a duty of care as a matter of law, and this duty was breached by SAPA. We agree.

| (¡Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment, is appropriate. Argonaut Great Cent. Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.06/03/09), 13 So.3d 1209, writ denied, 2009-1491 (La.10/2/09), 18 So.3d 122. Summary judgments are favored under Louisiana law; however, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and doubt must be resolved in the opponent’s favor. La. C.C.P. 966(A)(2); Id.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A genuine issue of material fact is one as to which reasonable persons could disagree. Argonaut Great Cent. Ins. Co., swpra.

Louisiana courts have adopted a duty-risk analysis in determining whether liability for negligence exists under the facts of a particular case. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.04/03/02), 816 So.2d 270. Under this analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to an appropriate standard of care; (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries, and, (5) actual damages. La. C.C. art. 2315; Id. at 275-76; Lowery v. Wal-Mart Stores, Inc., 42,465 (La.App.2d Cir.09/19/07), 965 So.2d 980.

|4Was There a Duty?

Whether a duty is owed is a question of law. Ponceti v. First Lake Properties, Inc., 2011-2711 (La.07/02/12), 93 So.3d 1251. In deciding whether to impose a duty in a given case, the court must make a policy decision in light of the unique facts and circumstances presented. Carrier v. City of Amite, 2010-0007 (La.10/19/10), 50 So.3d 1247, 1249; Carpenter v. Foremost Signature Ins. Co., 47,008 (La.App.2d Cir.02/29/12), 87 So.3d 264. In Meany v. Meany, 94-0251 (La.07/05/94), 639 So.2d 229, 233, the Louisiana Supreme Court determined that certain policy considerations are to be taken into account in analyzing whether a duty is owed, stating:

In determining whether to impose a duty in a particular situation, the court may consider various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow of litigation; the ease of association between the plaintiffs harm and the defendant’s conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant’s activity; moral considerations, particularly victim fault; and precedent as well as the direction in which society and its institutions are evolving.

Further, Professor Crawford has noted that the notion of duty used by Louisiana courts is identical to the duty articulated in Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (N.Y.1928), where duty is viewed “as necessarily contemplating the person or interest to whom the alleged duty was owed. If the injured party were unforeseeable to the defendant, then no duty of care existed because as a matter of definition one owes no duty to that which is unforeseen.” William Crawford, Louisiana Civil Law Treatise, Tort Law, § 4:2, p. 91 (2009).

|fiHere, the trial court determined that SAPA did not owe a duty to Alvin Bonds; however, such a conclusion was error as a matter of law due to the foreseeability of harm to Bonds. In observing the ease of association between Bonds’ foreseeable harm and SAPA’s conduct, a duty by SAPA clearly existed. The record shows that SAPA did not merely assume a duty by its actions, it obviously recognized its duty in this situation and responded by providing safety measures. According to the deposition testimony of Vernon Jackson, Sr., a SAPA representative, fall protection was an issue in the industry, “And so we had to come up with something.” Apparently, the previous system was not as good, and the company “felt we needed to make that improvement.” Ultimately, according to Jackson, the safety procedure that SAPA had in place when Bonds was injured, the catwalk and safety nets, became “the benchmark.” He elaborated that anyone working on a load, be it SAPA’s employee or a third party like Bonds, would not be allowed on the flatbed without fall protection being engaged-that person would be stopped immediately, because SAPA deemed such action to be unsafe. As stated by another SAPA representative, Bryan Ray Tyree, many truck drivers did not like SAPA’s safety policies, but SAPA controlled the situation and would not let those drivers take loads from their facility. Tyree stated, “Either abide by the [safety] policies or you’re not taking the load” from the SAPA site.

When we consider the harm suffered by Bonds in relation to SAPA’s conduct, there is clearly an ease of association that a duty existed by the defendant on behalf of this particular plaintiff. This duty is even more evident when considering the degree of control exerted by SAPA over |r,Bonds and other truck drivers. Here, the trial court erred in determining that SAPA, as a matter of law, had no duty to Alvin Bonds when he was injured at its facility.

Was the Duty Breached?

In this ease, the trial court’s judgment stopped with its conclusion that there was no duty by SAPA to Bonds, and the issue of breach was not addressed. However, along with the issue of its duty, SAPA’s motion for summary judgment included the issue of breach of duty. Regardless of the trial court’s judgment, we would be remiss in failing to consider whether SAPA’s duty to Bonds was breached or not.

Whether the defendant breached its duty is a question of fact. Mixon v. Davis, 31,725 (La.App.2d Cir.03/31/99), 732 So.2d 628. A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially ensure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Duckett v. Grambling State Univ., 47,082 (La.App.2d Cir.04/18/12), 92 So.3d 478, writ denied, 2012-1130 (La.09/14/12), 99 So.3d 32.

Although the summary judgment procedure is favored and must be construed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law, factual inferences reasonably drawn from the evidence nevertheless must be construed in favor of the party opposing the motion, and all doubt must be resolved in favor of the opponent to summary judgment. Ricks v. City of Monroe, 44,811 (La. App.2d Cir.12/09/09), 26 So.3d 858, 'writ denied, 2010-0391 (La.05/28/10), 36 So.3d _L¡247.

Having concluded that SAPA did indeed have a duty to Bonds, we further determine that there is a disputed issue of material fact on the question of whether the duty was breached, which is sufficient to defeat summary judgment. As the deposition testimony of SAPA representatives makes clear, SAPA voluntarily undertook the task of requiring mandatory safety precautions for its employees and truck drivers such as Bonds. The record is abundantly clear that SAPA required the use of netting on the sides of trailers and a catwalk at the end. Furthermore, the parties agree that the catwalk was not in place when Bonds was strapping down this particular cargo. The record is not entirely clear where exactly Bonds fell off the truck; however, he testified that after taking a misstep in one of the gaps in the cargo, he fell from the top of the load and hit the ground. Clearly, had the fall protection been properly in place, be that the netting and/or the catwalk, he should not have hit the ground. Thus, whether SAPA’s mandatory fall protection was properly in place is a material fact in dispute.

Furthermore, SAPA requires all drivers be informed of its safety requirements and sign off on its safety policy, a copy of which is in the record. Bonds maintains that he was not informed of the procedure and did not sign any such document. The written policy contains a signature line at the bottom for the driver’s signature. Additionally, Krissy Cardin, a SAPA employee, testified in her deposition that truck drivers first come to the office for an explanation of its loading requirements and signing of the written policy. However, considering that, SAPA has not produced a copy of the policy indicating that Bonds did indeed sign it.

| ¿There is no question that Bonds was injured when he fell from the top of the load to the ground. However, there are questions regarding the use of SAPA’s mandatory safety protection and information provided to Bonds on its use-material facts clearly in dispute as to the breach of SAPA’s duty to Bonds in the instant suit. Therefore, we find that summary judgment is not appropriate upon the showing made.

Conclusion

So considering, the trial court’s judgment in favor of SAPA Extrusions, L.L.C., dismissing the claims of Alvin and Betty Bonds is reversed. All costs of this appeal are assessed to SAPA.

REVERSED.