text:
    LUFFEY TIMBER CO., LLC, Plaintiff-Appellant v. James Ray FLORENCE, Tanya Graham Florence, Thomas E. Evans, and Denise Elaine Evans, Defendants-Appellees.
    No. 47,482-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      H. Russell Davis, for Appellant.
    Jeffrey L. Robinson, Darrell R. Avery, Jonesboro, LA, for Appellees.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, Chief Judge.

| plaintiff, Luffey Timber Co., LLC, appeals from the judgment of the trial court finding that it failed to prove possession of a disputed area of land for 30 years. For the following reasons, we affirm.

Facts and Procedural Background

Defendants, James Ray Florence and Tanya Graham Florence (“Florence”) and Thomas E. Evans and Denise Elaine Evans (“Evans”), are the owners of lots 11 and 12 of the Greenwood Estates Subdivision, respectively. The two lots are adjacent to one another, with the Florence lot, # 11, being to the north. Both lots are bounded on the east by the eastern subdivision line of Greenwood Estates.

Lots 11 and 12 lie within the SE 1/4 of the JW1/4, Section 6, Township 18 North, Range 3 West, Lincoln Parish, Louisiana. At the time that the subdivision was created, John O’Neal was the owner of the 40-acre tract being subdivided. Approximately 1.249 acres to the east of the Evanses’ lot and .976 acres to the east of the Flor-ences’ lot were part of the 40-acre tract owned by O’Neal, but they were not incorporated into the subdivision. This is the area in dispute in the present matter.

Plaintiff, Luffey Timber Co., LLC, and its ancestors in title have record ownership of the RW 1/4 of the NE 1/4, Section 6, Township 18 North, Range 3 West, Lincoln Parish, Louisiana. The O’Neal 40-acre tract and the Luffey ancestors in title’s 40-acre tract shared a common title boundary, the governmental forty line. The disputed area lies west of the governmental forty line on O’Neal’s tract.

|2On November 27, 2006, the Florences acquired by quitclaim deed from O’Neal, the title owner of the disputed area, the area lying east of their lot up to the forty line. Thereafter, the Evanses too acquired by quitclaim deed the area east of their lot up to the forty line. On May 4, 2007, Luffey received a quitclaim deed from The Brownland Corporation, an ancestor in title, for the “disputed area.” Luffey, however, acknowledges that none of the other deeds in their chain of title include the “disputed area.” In fact, Luffey concedes that Florence and Evans and their ancestors in title have record title to the area in dispute. Thus, Luffey claims ownership of the disputed area based upon acquisitive prescription.

Luffey filed the present boundary action on August 27, 2009. Luffey alleged that it and its predecessors in title, through tacking, had acquired ownership to the disputed area. The trial court ruled, however, that, at best, Luffey had shown possible possession of the disputed area from the mid-1980s until 2006, for a total of 21 years, and therefore ruled in favor of defendants.

Applicable Law

In a boundary action, the court renders a judgment fixing the boundary between contiguous lands in accordance with the ownership or possession of the parties. La. C.C.P. art. 8698. The boundary shall be fixed according to ownership of the parties; however, if neither party proves ownership, the boundary shall be fixed according to the limits established by possession. La. C.C. art. 792. If a party and his ancestors in title possessed for 30 years without interruption and within visible bounds more land than their title called for, then the boundary shall be fixed according to these bounds. La. C.C. art. 794. Thus, the party who relies on title will prevail unless the adverse party proves ^ownership by acquisitive prescription. Bowman v. Blankenship, 34,558 (La.App.2d Cir.04/04/01), 785 So.2d 134, writ denied, 01-1354 (La.06/22/01), 794 So.2d 794.

Acquisitive prescription of 30 years extends only to that which has been actually possessed. La. C.C. art. 3487. The party claiming acquisitive prescription of 30 years must have corporeal possession of the property and the intent to possess as owner. La. C.C. art. 3424; Williams v. McEacharm, 464 So.2d 20 (La.App. 2d Cir.1985). Corporeal possession means that one exercises the physical acts of use, detention, or enjoyment over a thing. La. C.C. art. 3425. Possession for purposes of acquisitive prescription must be continuous, uninterrupted, peaceable, public, and unequivocal. La. C.C. art. 3476.

One claiming possession without title can show adverse possession by enclosures, meaning natural or artificial marks that give notice of the character and extent of possession. Ewald v. Hubbard, 31,506 (La.App.2d Cir.03/12/99), 737 So.2d 858, writ denied, 99-1289 (La.06/25/99), 746 So.2d 602. However, what constitutes adverse possession depends on the nature of the property and must be determined on the facts of each case. Bennett v. Louisiana Pacific Corp., 29,598 (La.App.2d Cir.05/9/97), 693 So.2d 1319, writ denied, 97-1552 (La.10/03/97), 701 So.2d 199. Acts indicating adverse possession differ depending on the nature of the property. What suffices to show adverse possession of agricultural land, such as cultivation or using property as a pasture, differs from woodland where little may be done to indicate possession. Liner v. Louisiana Land & Exploration Co., 319 So.2d 766 (La.1975); Ryan v. Lee, 38,352 (La.App.2d Cir.04/14/04), 870 So.2d 1137, writ denied, 04-1531 (La.10/01/04), 883 So.2d 991.

Whether a party has possessed the disputed property for 30 years without interruption is a factual issue that will not be reversed on appeal absent manifest error or a showing of an abuse of discretion. Garner v. Holley, 42,477 (La.App.2d Cir.10/03/07), 968 So.2d 234; Guillot v. Evans, 31,591 (La.App.2d Cir.02/26/99), 728 So.2d 1052, writ denied, 99-1178 (La.06/04/99), 744 So.2d 631. The burden of proof is on the party who pleads acquisitive prescription. Williams v. McEacham, supra.

Discussion

In 1976, John O’Neal plotted the Greenwood Estates Subdivision, and in 1997 sold the first lot, lot 11, to the Florences. Also in 1977, after a partition, Brownland became sole owner of the SW 1/4 of the NE 1/4. In 1981, Brownland hired the Ewing Timber Company to manage that land. Ewing Timber managed and Brownland owned that property until its sale to La-velle Aycock and Eddie Harmon in 2005. Thereafter, in February 2006, Luffey purchased the SW 1/4 of the NE 1/4 from Aycock and Harmon. In November 2006, Luffey began erecting a fence along the east line of the Greenwood Estates Subdivision. The Florences halted the construction of the fence. On November 27, 2006, the Florences and Evanses acquired title to the disputed land from O’Neal by quitclaim deed.

After acquiring title to the disputed area, the Florences and Evanses filed a possessory action against Luffey. The trial court in that matter found that the Florences and Evanses had failed to prove that they intended to possess the |fidisputed areas as owners. The court, noting that the Florences and Evanses had acquired quitclaim deeds, reserved all rights to a petitory action or boundary dispute to the parties.

After the conclusion of the possessory action, the Florences began constructing a fence along the governmental forty line. As a result, Luffey filed the instant matter.

Luffey admits that it does not have title to the disputed area. Thus, to prove its ownership of that land, it is incumbent for it to prove unequivocal, corporeal possession of the disputed area from November 1976 until November 2006, when the Florences halted construction of the fence along the east subdivision line.

To support its case, Luffey submitted as evidence the entire possessory action suit. In that suit, Luffey had Andrew Harris Brown and Richard Todd testify. Brown was the current president of Brownland. He testified that he became president in 1988 or 1989, after he graduated from college. He testified that he would try to make an annual trip to the property to meet with the property manager, but that he rarely walked the property’s boundary line. The last time Brown could recall being in the vicinity of the disputed area was in 1987.

Richard Todd also testified in the pos-sessory suit. Todd was the forester employed by Ewing Timber who worked the property for Brownland. Todd began working on the SW 1/4 of the NE 1/4 in the 1980s, and continued to |fimanage that property until it was sold in 2005. Todd testified that based upon his recollection and Ewing Timber’s records the property was thinned on two occasions and the boundaries were marked on two occasions as well. Todd stated that they marked the boundaries with blue paint in the mid-1980s and then again with aluminum paint in 1994. Todd testified that these markings were made on the east line of the Greenwood Estates Subdivision.

Gary Rainey also testified on behalf of Luffey. Rainey was the surveyor hired by Luffey in March 2006. Rainey stated that he had lived near the property for many years, and that he recalls back before Greenwood Estates was formed that orange paint was used in the area to mark boundaries. He testified that in preparation of trial, he walked along the disputed area and found that along the east line of the subdivision the trees were painted predominately blue, but that there was also still some aluminum paint in places as well. Rainey also stated that he believes that he saw some orange paint on a tree or two, but that it is possible that the blue paint had been placed over where the orange paint would have been.

The Florences and Evanses contend that the only definitive proof offered by plaintiff to show any possessory acts was Ewing Timber’s painting project in the mid-1980s. Defendants note that Luffey put forth no witnesses with pertinent knowledge of actual possessory acts prior to 1981. Meanwhile, defendants put forth the testimony of Dr. Florence, who purchased his lot in 1977. Dr. Florence testified that when he made his purchase there was no paint, fence, or anything else marking or designating the east side of his subdivision lot. Thus, defendants assert, all painting and/or blazing was done by Ewing Timber in the mid-1980s. Considering that the burden of proving 17ownership by acquisitive prescription is on plaintiff, defendants argue that the trial court correctly found that Luffey had failed to prove corporeal possession for more than 21 years.

The trial court found that based upon the “Wagnon Plat,” which established the Greenwood Estates Subdivision and was certified on October 20, 1976, there were no physical landmarks that would have indicated acts of a possessory nature. The plat noted existing blazed and painted line along the south boundary, blazed line and old fence along a north boundary, and an existing blazed line just to the west of where the established western boundary line of Greenwood Estates was. The trial court found the fact that the east boundary of the subdivision lacked any mention of a blazed or painted line was of particular importance. As such, the trial court stated that “it is the finding of the court that there had not been any visible findings of a possessory nature on or near the east boundary line of Greenwood Estates Subdivision on or before October 20, 1976, by J.C. Wagnon.” Ultimately, the trial court concluded that Luffey was only able to prove that an adverse possessory act sufficient to commence the tolling of acquisitive prescription occurred in the mid-1980s when Ewing Timber marked the boundary with blue paint.

Considering the deference owed to the trial court in its factual determinations, we cannot find that it abused its discretion in holding that Luffey and its ancestors in title possessed the disputed area for 21 years rather than the requisite 30 years.

Conclusion

For the reasons stated, we affirm the judgment of the trial court. Costs of this appeal are assessed to plaintiff, Luffey Timber Co., LLC.

      . Both the Florences and Evanses testified in that matter that they used the disputed area for recreational purposes, and that they did not believe that they owned the disputed area, but rather that it was a portion of the subdivision.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Patrick Fitzgerald POPE, Appellant.
    Nos. 47,486-KA, 47,487-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Peggy J. Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Brian H. Barber, William J. Edwards, Assistant District Attorneys, for Appellee.
    Before DREW, LOLLEY and SEXTON (Pro Tempore), JJ.
   LOLLEY, J.

| Patrick Fitzgerald Pope (“Pope”) was convicted by the First Judicial District Court, Parish of Caddo, State of Louisiana, of one count of negligent homicide, in violation of La. R.S. 14:32 and one count of felony theft, middle grade, in violation of La. R.S. 14:67(B)(2). Pope received a sentence of five years at hard labor for negligent homicide and two years at hard labor for felony theft, to run concurrently. This appeal followed.

FACTS

On April 25, 2007, Pope traveled to the home of his estranged wife, Allison Pope, in order to discuss a lost credit card. During their conversation, the two began to argue, Pope left the house, and walked toward his vehicle. Allison followed and began hitting Pope’s vehicle with a toy lawnmower. As Pope entered his vehicle, Allison began to grab and pull at him, at which point a .40 caliber handgun which he was carrying went off and struck Allison Pope in the head killing her. Pope screamed that it was an accident and left with the handgun. His 21-year-old daughter and 18-year-old son witnessed the shooting.

Pope was arrested and indicted for second degree murder. The charge was eventually reduced to manslaughter. While out on bond for the second degree murder charge, Pope was arrested and ultimately charged with felony theft, middle grade, in violation of R.S. 14:67(B)(2) for stealing an air conditioning unit from a home. Finally, pursuant to a plea agreement, Pope pled guilty to both negligent homicide and felony theft.

A sentencing hearing was held, and Pope sought home incarceration and a probated sentence. The trial court denied both motions and after ^discussing the factors enumerated in La. C. Cr. P. art. 894.1, sentenced Pope to 5 years hard labor for negligent homicide and 2 years hard labor for felony theft, middle grade, to run concurrently. Pope’s motion to reconsider sentence was denied. This appeal followed.

DISCUSSION

As Pope’s sole assignment of error, he argues that sentences of five and two years at hard labor, even run concurrently, are excessive. We disagree.

The test applied by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Washington, 46,913 (La.App.2d Cir.02/01/12), 86 So.3d 697. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.08/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.09/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal [¡¡record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v.Moton, 46,607 (La.App.2d Cir.09/21/11), 73 So.3d 503, writ denied, 2011-2288 (La.03/30/12), 85 So.3d 113.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Walls, 47,006 (La.App.2d Cir.02/29/12), 86 So.3d 71.

Louisiana R.S. 14:32(0(1), which governs sentencing upon a conviction for negligent homicide, states:

Except as provided for in Paragraph (2) of this Subsection, whoever commits the crime of negligent homicide shall be imprisoned with or without hard labor for not more than five years, fined not more than five thousand dollars, or both.

Louisiana R.S. 14:67(B)(2), which governs sentencing upon a conviction for felony theft, middle grade states:

When the misappropriation or taking amounts to a value of five hundred dollars or more, but less than a value of one thousand five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than two thousand dollars, or both.

LHere, the trial court adequately considered the criteria set forth in La. C. Cr. P. art. 894.1, and neither sentence was excessive. First, the record reflects that during Pope’s sentencing hearing, the trial court stated its consideration of the factors enumerated within La. C. Cr. P. art. 894.1. Specifically, as to the negligent homicide conviction, the trial court noted that it had read letters from both the defendant’s family and from the victim’s family. Further, the court noted that the crime involved the use of a firearm. Finally, the trial court stated that any lesser sentence than that given to Pope would deprecate the seriousness of the offense which Pope committed. As to the felony theft, this crime was committed while Pope was out on bond. Considering the seriousness of the convictions and Pope’s callous disregard for the law while on bond, the trial court’s sentences do not reflect a needless infliction of pain and do not shock the sense of justice.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Patrick Fitzgerald Pope are affirmed.

AFFIRMED.


author: MOORE, J.

text:
    The CADDO FEDERATION OF TEACHERS AND SUPPORT PERSONNEL, Plaintiff-Appellant v. CADDO PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 47,489-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Weems, Schimpf, Gilsoul, Haines, Landry & Carmouche, Shreveport, LA, by Brian D. Landry, for Appellant.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Brian R. Carnie, for Appellee.
    Before CARAWAY, MOORE and SEXTON, Pro Tempore, JJ.
   MOORE, J.

|,The Caddo Federation of Teachers & Support Personnel appeals a judgment sustaining an exception of no right of action and dismissing its suit for injunctive relief against the Caddo Parish School Board. For the reasons expressed, we dismiss the appeal as moot.

In 2004, the School Board amended its policy manual, specifically its reduction in force (“RIF”) policies for certified personnel and for support staff. The new policies allow the School Board to lay off employees in specific job categories that are designated for RIF, rather than by seniority across the entire system.

The Caddo Federation filed this suit in June 2011, seeking to enjoin implementation of the new RIF policies. It showed that under a special statute, La. R.S. 17:81.4 D, all school RIF policies must include minimum standards for seniority in the system. Specifically, it alleged that the new policies “fail to recognize seniority in the system,” and that the School Board had “narrowly drawn” many job descriptions in an effort to thwart the public policy of § 81.4, recently sending over 800 employees notices that 12they would be terminated effective June 80, 2011.

The School Board filed an exception of no cause of action urging that the amended RIF policies fully complied with § 81.4 and an exception of no right of action urging that “the relief requested is specific to individual members who were affected” by the recent RIF.

After a hearing, the district court denied Caddo Federation’s motion for preliminary injunction. The court found injunctive relief not warranted because the affected employees had an adequate remedy through the grievance procedure, § 81.4 is not a prohibitory law, and Caddo Federation failed to prove irreparable harm.

Both sides then moved for summary judgment, but the court first heard the School Board’s exception of no right of action. The parties stipulated that Caddo Federation does not have a collective bargaining agreement with the School Board, so the right of action must be conferred by associational standing. The court distinguished this court’s prior opinion in Caddo Fed’n of Teachers v. Caddo Parish School Bd., 45,357 (La.App. 2 Cir. 6/23/10), 41 So.3d 1259, which had found that Caddo Federation possessed associational standing and reversed an exception of no right of action. The court granted the School Board’s exception of no right of action, dismissed Caddo Federation’s suit, and found the motions for summary judgment moot.

Caddo Federation has appealed, urging that the court erred as a matter of law in finding that it had no right of action to claim injunctive relief on |3behalf of its members. Caddo Federation’s brief argues that the district court misinterpreted the doctrine of associational standing and wrongly distinguished the prior case of Caddo Fed’n, supra.

The School Board responds that the district court correctly applied the principles of associational standing and properly distinguished Caddo Fed’n, supra. More importantly, however, the School Board shows that the legislature recently amended § 81.4, effective July 1, 2012, to remove seniority as a requisite criterion for any RIF. The School Board argues that this negates the whole point of Caddo Federation’s suit and supports a finding of mootness. Cat’s Meow Inc. v. City of New Orleans, 98-0601 (La.10/20/98), 720 So.2d 1186.

We have closely examined the School Board’s claim of mootness and find it has merit. As amended by 2012 La. Acts No. 1, effective July 1, 2012, La. R.S. 17:81.4 D and E now provide:

D. All reduction in force policies of local public school boards and special schools as provided in this Section shall include:

(1) The right of an employee notified of an action which results from implementation of a reduction in force policy to request in writing a review of such action and to receive notice of the results of such review.

(2) The right of an employee to pursue the matter through the school board’s adopted grievance procedure.

E. No reduction in force policy adopted by a local school board shall include seniority or tenure as the primary criterion to be considered when instituting a reduction in force.

This amendment eliminates seniority and tenure as criteria for school RIF policies. The change totally neutralizes Cad-do Federation’s claim, | ¿which asserted that the amended RIF policies “fail to recognize seniority in the system” and “seek to dismiss personnel based upon seniority in positions,” and prayed for a judgment enjoining the School Board from “utilizing a reduction in force policy that does not comply with La. R.S. 17:81.4.” In fact, the amended RIF policies, which utilize a determination of the level of support needed, reduction as to categories or job descriptions, and elimination of temporary positions first, fully complies with the amended R.S. 17:81.4.

A case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. Cat’s Meow Inc. v. City of New Orleans, supra; United Teachers of New Orleans v. Orleans Parish School Bd., 355 So.2d 899, 98 L.R.R.M. 2379 (La.1978); Cory v. Cory, 43,447 (La.App. 2 Cir. 8/13/08), 989 So.2d 855. The 2012 amendment makes moot the claim to enjoin enforcement of the amended RIF policy. Cat’s Meow Inc. v. City of New Orleans, supra; Louisiana Seafood Management Council v. Louisiana Wildlife & Fisheries Com’n, 97-1344 (La.App. 1 Cir. 9/1/98), 719 So.2d 119, fn. 5. The remedy for this type of mootness is dismissal of the appeal. United Teachers of New Orleans v. Orleans Parish School Bd., supra; Cory v. Cory, supra. ,

Moreover, an injunction cannot be used to correct a consummated wrong or enjoin a fait accompli. Bristol Steel & Iron Works Inc. v. State, 507 So.2d 1233 (La.1987); Richardson v. Reeves, 600 So.2d 138 (La.App. 2 Cir.1992). If any members of Caddo Federation can allege that their seniority rights were violated between June 30, 2011, when the RIF occurred, and July 1, 2012, when the legislature ratified the RIF policy, those members may seek redress through the grievance procedure or, if appropriate, litigation.

Because of this resolution, we pretermit any discussion of the issue assigned by Caddo Federation, whether the court erred in finding no associational standing.

For the reasons expressed, the appeal is dismissed as moot. All costs are to be paid by Caddo Federation of Teachers & Support Personnel.

APPEAL DISMISSED.

      . The revised policy manual for support personnel provides: "Positions will be reduced based on the following procedure: 1. A determination is made by administration regarding the support services needed to maintain a quality balanced educational program; 2. A determination shall then be made as to the categories (by job description) to be reduced in accordance with the school system needs; and (3) Temporary positions within the categories to be reduced shall be eliminated first. Persons employed in the categories designated for reduction shall be reduced based on the following criteria, in priority order: 1. Employees with an overall unsatisfactory performance as indicated by the most recent observations and evaluations; no evaluations shall be considered which occurs [sic] after the board votes to begin the reduction in force process. 2. Seniority as defined in this policy.”

      . At the time, the statute provided: "Not later than January 1, 1996, all reduction in force policies of the city and parish school boards and special schools as provided in this Section shall include but not be limited to the following minimum standards: (1) Certification, if applicable. (2) Seniority in the system. (3) Tenure of employees. (4) Academic preparation, if applicable, within the employee’s field. (5)(a) The right of an employee notified of an action which results from implementation of a reduction in force policy to request in writing a review of such action and to receive notice of the results of such review. (b) The right of an employee to pursue the matter through the school board's adopted grievance procedure.”

      . Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), and Louisiana Hotel-Motel Ass’n v. Parish of East Baton Rouge, 385 So.2d 1193 (La.1980).

      . On August 21, 2012, after oral argument of the case, the School Board adopted a new RIF policy (file "GBNA”) that replaced the policies contested in this suit. Counsel also gave this court the information needed to support judicial notice of the new policy under La. C.E. art. 202 B(l)(c). This development does not change our conclusion that the 2012 amendment to R.S. 17:81.4 made the contested policies moot, but it is another fact supporting the finding of mootness.

      . At the hearing on the preliminary injunction, Caddo Federation's president, Jackie Lansdale, testified that pursuant to the June 2011 RIF, no certified personnel had been laid off, and of the 166 support personnel laid off, many had been recalled to work; 48 of those permanently laid off had filed grievances seeking reinstatement and backpay.


text:
    Franklin SCOTT, Plaintiff-Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, et al., Defendants-Appellees.
    No. 47,490-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Mayer, Smith & Roberts, Shreveport, LA, by Steven E. Soileau, Brainard & Brainard, by Amy-Elizabeth Brainard, for Appellant.
    Cook, Yancey, King & Galloway, by Kenneth Mascagni, Elizabeth M. Carmody, Shreveport, LA, Donna Y. Frazier, Tallu-lah, LA, for Appellee, Parish of Caddo.
    Allen & Gooch, Lafayette, LA, by Patrick A. Johnson, for Intervenor Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| franklin Scott appeals the judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, in favor of the defendant, the Parish of Caddo. For the following reasons, we affirm the trial court’s judgment.

FACTS

On March 29, 2009, at 12:05 p.m., Scott was driving a tractor/trailer rig carrying saltwater west on Keatchie-Marshall Road in Caddo Parish, Louisiana. Although Scott had already traveled this section of road several times that day, a 90-foot pine tree located on private property had fallen across the road blocking both lanes since the last time he passed through. The tree had fallen across the road only 45 minutes prior to Scott’s arrival and no emergency crews had had an opportunity to respond. Scott failed to see the fallen tree in time to avoid it and hit the tree with his truck. Scott’s truck slid 350 feet from the point of impact, hitting various other trees before coming to a rest. As a result of the accident, Scott suffered serious injury to his neck.

In his original petition, Scott filed a suit for personal injury against the Parish of Caddo (the “Parish”), property owners Roger and Marilyn Connell, and State Farm Fire and Casualty Company (“State Farm”) for failure to maintain the right of way from potentially hazardous conditions. Subsequently a settlement was reached with the Connells and State Farm, and Scott reserved his right to proceed against the Parish.

Scott’s claim against the Parish was tried in a bench trial. After reviewing all the evidence, the trial court concluded that Scott failed to |2prove the Parish had actual or constructive notice of the dangerous condition posed by the dead tree prior to the collision and, therefore, the Parish was not Hable for damages. Judgment was rendered in favor of the Parish, and this appeal by Scott followed.

DISCUSSION Admissibility of Evidence

Initially, we address Scott’s assignment of error regarding the evidence considered at trial. Scott asserts that the trial court erred by relying on “incompetent, inadmissible evidence” concerning the policies and procedures of neighboring Webster and Bossier Parishes. We disagree.

Evidence is relevant whenever it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. La. C.E. art. 401. The trial court is granted broad discretion in its evidentia-ry rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Hays v. Christus Schumpert Northern La., 46,408 (La.App.2d Cir.09/21/11), 72 So.3d 955.

The Parish first called Ronnie Andrews, the Public Works Director for the Bossier Parish Highway Department. Andrews had been an employee of that department for almost 30 years. Next, the Parish called Teddy Holloway, the Public Works Director for the Webster Parish Highway Department. Holloway had been employed by the Webster Parish Highway Department for 14 years. Both witnesses discussed the mileage and type of roadway which they were responsible for maintaining. The | ^witnesses also testified to their departments’ policies concerning when to inspect a road and how a road inspection is completed.

The testimony from Ted Holloway and Ronnie Andrews concerning the practices of Webster and Bossier Parishes, respectively, was not incompetent or inadmissible. The record reflects that both witnesses had personal knowledge of the policies and practices of their respective parishes gained from years of work experience. Additionally, the testimony was relevant in that it covered the practices used by neighboring parishes with similar conditions and hazards as the Parish and went to show that the practices employed by the Parish were not exceptional but rather customary among similarly situated parishes. As previously stated, the trial court is granted wide discretion in its evidentia-ry rulings, and we do not find rebanee on this evidence to be an abuse of that discretion. Furthermore, even if the testimony of these witnesses was inadmissible, the error would be harmless as their testimony was generally corroborated by expert witness Joseph Blaschke. This assignment of error is without merit.

Knowledge of the Hazardous Condition

Scott also argues that the trial court erred by finding that the Parish did not have constructive notice of the dead tree before it fell onto Keatchie-Marshall Road. Specifically, Scott claims that because of the bright red needles at the crown of the tree and a distinct lack of bark along the trunk of the tree, both of which he argues are indicative of a dead pine tree, the Parish road crews should have noticed and removed the tree long before it fell into the road. We disagree.

|4A trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993); Morton v. Hicks, 46,991 (La.App.2d Cir.09/28/11), 74 So.3d 268, writ denied, 2011-2140 (La.09/30/11), 71 So.3d 297. To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Further, when findings are based on determinations regarding credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Id. Only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in that which is said. Orea v. Scallan, 32,622 (La.App.2d Cir.01/26/00), 750 So.2d 488.

The state is not the guarantor of the safety of travelers, but owes a duty to keep highways and shoulders reasonably safe for non-negligent motorists. Lewis v. State through Dept. of Transp. and Dev., 94-2370 La.04/21/95), 654 So.2d 311, 314. In order to establish a breach of the state’s duty to maintain safe ty for the motoring public, a plaintiff must show that: 1) a hazardous condition existed; 2) the state had actual knowledge of the condition; and, 3) the state failed to take corrective action within a reasonable time. Id. at 315, citing Briggs v. Hartford Ins. Co., 532 So.2d 1154 (La.1988).

In the present case, the trial court was not manifestly erroneous in finding that the Parish lacked actual or constructive notice of the dead tree, as the record reflects a reasonable factual basis for all of the trial court’s conclusions. The trial court found that the tree, located in a stand of pines and hardwoods, could not have been spotted by a drive-by inspection. Regarding this issue, the trial court heard testimony from two expert witnesses, Tom Bourland and Steve Muslow.

Bourland, Scott’s expert forester, testified that the tree could not have been missed during a drive-by inspection of the road. In describing the signs of a dead or dying pine tree, Bourland testified that one must look for red pine needles at the crown of the tree, a slippage or loss of bark, and the dropping of numerous large limbs. Bourland testified that the red pine needles of a dead tree are like a red flag indicating that a tree is dying and concluded that the Parish could not have missed this sign because the tree stood close to the edge of the road unobstructed by other trees. Bourland based this finding on measurements taken by responding law enforcement personnel, the video from a Sheriffs police car, and photographs from Google Earth.

| f,Steve Muslow testified for the Parish and was also accepted as an expert in forestry. Muslow testified that he would not expect a person to spot the tree during a drive-by inspection, because the tree would not have appeared dead. Based on the substantial amount of bark found on the road after the accident, Muslow determined that the tree still had bark along its base before it fell which falsely indicated that it was still alive. Concerning the needles of the tree, Muslow testified that the red pine needles at the crown of a tree are not always easily identifiable and that even he occasionally misses this sign. Muslow further testified that the difficulty of spotting the red crown of this particular pine tree was likely increased due to the fact that the foliage of the surrounding hardwood trees tended to conceal the tree’s crown.

Concerning the location of the tree, Muslow identified another stump farther off the road and among a stand of trees which he felt matched the dimensions of the fallen tree closer than the stump identified by Bourland. Additionally, Muslow stated that judging from the cruiser video of a responding deputy, the tree’s base appeared farther back in the woods. Based on these observations, Muslow opined that the stump identified by Bour-land was not the stump of the fallen tree.

Faced with two differing expert opinions, the trial court gave well reasoned explanations for its preference toward Muslow’s testimony. Specifically, the trial court noted that Bourland’s testimony indicated that he failed to observe that the “Connells actually live on the property which he said he inspected.” Further, the trial court was concerned with the accuracy |7of the Google Earth photographs which Bourland relied on, because he failed to pinpoint the date on which the photographs were taken. Finally, the trial court noted Bourland’s lack of knowledge concerning how government entities inspect roadways. After weighing and evaluating expert and lay testimony in a bench trial, the trial court may accept or reject the opinion expressed by any expert. Davenport v. Giles, 46,606 (La.App.2d Cir.11/02/11), 80 So.3d 492. The effect and weight to be given to expert testimony depends on the underlying facts and rests within the broad discretion of the trial court. Dickerson v. Coon, 46,423 (La.App.2d Cir.08/10/11), 71 So.3d 1135. The record reflects that the trial court was well within its discretion to evaluate the expert witness testimony before it, and its decision will not be disturbed upon appeal.

Additionally, the trial court also cited the testimony of Caddo Parish Deputies Tondra Schneider and Paul Brown who patrolled Keatchie-Marshall Road, the owner of the land from which the tree fell, and the adjacent landowner in support of its finding that the Parish lacked constructive notice. None of these witnesses noticed a tree posing a hazard to motorists despite driving by the tree on a frequent basis.

Corrective Action

Finally, Scott argues that the Parish failed to notice the dead tree, because the Parish lacked any procedures or policies for establishing when the inspection of a road should occur or how an inspection should be done. Furthermore, he maintains that because Parish road crews were not trained to detect the signs of a dead or dying tree, they did not look for or cut down 18dead trees along the roadways or see the obvious danger presented by the dead tree which caused the accident.

The trial court considered evidence regarding the issue of whether the Parish had taken corrective action within a reasonable time. It found that the Parish had policies in place concerning road inspections and the identification and removal of hazardous trees. This finding is also supported by the record and not manifestly erroneous. The trial court cited the testimony of Larry Martenson, a road foreman with 23 years of experience, who was responsible for maintaining Keatchie-Mar-shall Road at the time the accident took place. Martenson admitted that while there were no written policies concerning when to inspect a specific road, all roads were checked at least monthly and that heavily trafficked roads, such as Keatchie-Marshall Road, were checked more often. Martenson’s testimony concerning road inspections was corroborated by other witnesses with equally considerable knowledge of and experience with the Parish’s policies concerning road inspections. James Hankins, the District Manager for Caddo Parish Public Works responsible for all the road crews patrolling Keatchie-Marshall Road, testified that crews attempt to inspect all the roads within their domain at a minimum, at least once a month.

All Parish employees testified that when a dead tree on private property is identified as a threat, the tree is reported to the Parish attorney and the landowner is identified and asked to remove the tree. If the tree poses an immediate danger, the Parish will cut it down immediately. |3Indeed, Martenson testified that the tree in this case should have and would have been cut down immediately had it been identified.

The trial court also relied on the testimony of Joseph Blaschke, who was tendered as an expert in highway design and traffic engineering. Blaschke had worked with highway departments in Texas, Louisiana, and Mississippi and testified that governmental entities in charge of roadway maintenance do not have defined periods for inspections but schedule their inspections based on the usage of the road. Accordingly, based on the usage of Keat-chie-Marshall Road, Blaschke testified that it was likely inspected more frequently. Blaschke also testified that road crews typically conduct their inspections by driving down the road at the posted speed limit looking for hazardous conditions. Blaschke opined that based on his review of the accident scene, the tree would have been very difficult to spot during a drive-by inspection, because the tree was not isolated and visible but concealed among a group of trees.

While the record reflects varying testimony concerning the frequency of inspections, the trial court was in the best position to judge the credibility of each witness, and there is nothing in the record that warrants this court’s reversal of the trial court’s determinations. Martenson’s testimony, which the trial court relied upon concerning the frequency of inspections, was corroborated by the testimony of expert witness Joe Blaschke in that each road is inspected based on the frequency of use. Our review of the. record indicates that the trial court was not erroneous in concluding that the Parish did have policies, although unwritten, concerning road inspections and 11flremoval of hazardous trees. Although the state has a duty to inspect for hazardous conditions along its roadways, this can be accomplished by vehicular patrols of the roadways and does not require detailed walking inspections. See Lewis, supra at 315. Accordingly, we find that there is more than abundant evidence in the record to support the trial court’s finding that the Parish had sufficiently taken corrective action.

Finally, as to the training of road crew personnel, Martenson recited all the signs and stages of a dying pine tree as accurately as the expert foresters that testified. Furthermore, Hankins testified that most of the employees have between 15 and 20 years of experience on the road crew. The trial court did not err in concluding that while the Parish employees who testified did not have formal educational training in forestry, they all possessed sufficient on-the-job training and experience to competently maintain the Parish roadways.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of the Parish of Caddo. All costs of this appeal are to be paid by Franklin Scott.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    Katherine Estelle ATKINS, Plaintiff-Appellant, v. Gus ATKINS, Defendant-Appellee.
    No. 47,563-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.
    Dawn H. Mims, Rayville, LA, David J. Thomas, for Appellant.
    Laurie Jo Burkett, for Appellee.
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, Chief Judge.

11Katherine Atkins (“Kathy”) and Gus Atkins (“Gus”) were married on May 27, 2005, in Hamburg, Arkansas. Their son, Jackson, was born on August 4, 2005. Both Kathy and Gus had been previously married and divorced, and Kathy had a daughter, Kayleigh, from her previous marriage to James Rawls. Kathy has joint custody and is the primary domiciliary parent of Kayleigh.

Kathy filed a petition for an article 102 divorce from Gus on January 9, 2008, arid sought sole custody of Jackson. She also asked for a custody evaluation and other ancillary relief. Kathy then took Jackson and left the matrimonial domicile in Bas-trop, Louisiana, and moved to her parents’ home in Crossett, Arkansas, approximately 30 minutes from Bastrop.

On March 7, 2008, Gus filed an answer and reconventional demand seeking joint custody and to be named as the primary domiciliary parent of Jackson. He also requested court-ordered visitation with his stepdaughter, Kayleigh. Gus expressed an objection to Kathy’s move to Arkansas with the parties’ child, asserting that it was violative of Louisiana’s relocation law.

On March 31, 2008, an interim order was signed, awarding the parties shared custody of Jackson with visitation alternating weekly until the initial hearing officer conference. This interim order prevented Kathy from permanently relocating or changing her domicile without further court order. After two hearing officer conferences, a report was rendered which continued the shared custody arrangement but named Gus as the primary | gdomiciliary parent. Both parents filed objections to the hearing officer’s report.

On October 22, 2009, a divorce judgment was signed and filed. The hearing on the remaining issues began that same day and after several continuances, the final day of the hearing was February 25, 2011. The trial court issued its written reasons for judgment on December 2, 2011, and judgment was rendered and signed on February 23, 2012. The trial court granted the parties joint custody, naming Gus as the primary domiciliary parent and ordering Kathy to pay child support. It is from this judgment that Kathy has appealed.

Discussion

The primary consideration in any child custody determination is the best interest of the child. La. C.C. art. 131. The court must consider all relevant factors in determining the best interest of the child. La. C.C. art. 134. Every child custody case should be decided in light of its own particular set of facts, circumstances and relationships. D.M.B.T. v. M.A.T., 46,381 (La.App.2d Cir.05/18/11), 83 So.3d 3; Shivers v. Shivers, 44,596 (La.App.2d Cir.07/01/09), 16 So.3d 500; Earle v. Earle, 43,925 (La.App.2d Cir.12/03/08), 998 So.2d 828, writ denied, 09-0117 (La.02/13/09), 999 So.2d 1151; Bonnecarrere v. Bonnecarrere, 11-0061 (La.App.1st Cir.07/01/11), 69 So.3d 1225.

As noted by this court in Walker v. Walker, 38,982 (La.App.2d Cir.08/18/04), 880 So.2d 956, a literal articulation of the article 134 factors is unnecessary when a trial court reaches a conclusion regarding a child’s best interest. While helpful, the trial court’s means of weighing and balancing |sthe article 134 factors need not be specifically stated. See also Coleman v. Coleman, 47,080 (La.App.2d Cir.02/29/12), 87 So.3d 246. Underlying the trial court’s great discretion in custody cases is its opportunity to better evaluate the credibility of witnesses. Therefore, a trial court’s determination in the establishment or modification of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. McCormic v. Rider, 09-2584 (La.02/12/10), 27 So.3d 277; Coleman, supra; Mayo v. Henson, 42,250 (La.App.2d Cir.05/09/07), 957 So.2d 318.

Louisiana’s relocation statutes, La. R.S. 9:355.1-9:355.17, govern the relocation of a child’s principal residence in three situations: (1) to a location outside the state; (2) if there is no court order awarding custody, more than 150 miles within the state from the other parent, or (3)if there is a court order awarding custody, more than 150 miles from the domicile of the primary custodian at the time the custody decree was awarded. La. R.S. 9:355.1(4)(a) and (b). The relocating parent has the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child. La. R.S. 9:355.13. There are 12 factors for the court to consider in determining whether a proposed relocation is in the child’s best interest. La. R.S. 9:355.12; Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094. Louisiana Civil Code article 134 supplements and to a great extent overlaps with La. R.S. 9:355.12. Perez v. Perez, 11-537 (La.App.3d Cir.02/29/12), 85 So.3d 273, writ denied, 12-0743 (La.05/18/12), 89 So.3d 1195; Miller v. Miller, 01-356 (La.App.3d Cir.10/31/01), 799 So.2d 753. La. R.S. 9:355.12 does not direct the court to give preferential consideration to any certain factors. Gathen v. Gathen, 10-2312 (La.05/10/11), 66 So.3d 1; Curole, supra; Fuqua v. Fuqua, 46,118 (La.App.2d Cir.01/26/11), 57 So.3d 534. Instead, in ruling on a relocation request, the trial court may give whatever weight it deems appropriate to the testimony of any and all witnesses, including that of experts. Id. The trial court’s determination to grant or deny a relocation is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Fuqua, supra.

Both the hearing officer and the trial court erred in failing to recognize that this case should have been specifically analyzed under both La. C.C. art. 134 and La. R.S. 9:355.12 based upon the fact that Kathy made an out-of-state move with the parties’ child that was opposed by Gus during the parties’ divorce proceedings and before any custody issues were determined or settled. Nonetheless, in making its ruling on which parent should be awarded primary domiciliary custody, the trial court listed the factors set forth in La. C.C. art. 134 (although erroneously referred to in the court’s written reasons as La. R.S. 9:355.12), noted that it had considered each factor, then discussed its reasons for finding that Gus should be awarded primary domiciliary custody of Jackson. The court further found that the child should remain in Bastrop, Louisiana, an implicit determination that Kathy’s relocation with Jackson was not in the child’s best interest. ,

The court observed that these young parents had a marriage with “a lot of problems,” which, having read the testimony in this case, we find to |5be an understatement. The trial court noted its concern that Kathy and Gus would have “great difficulty” cooperating in the upbringing of their young son. The record fully supports this concern as well. Kathy Atkins’ testimony evidenced an unwillingness to facilitate and encourage a relationship between the child and her ex-husband, while Gus’s testimony showed that he was more likely to support and encourage Kathy’s relationship with Jackson.

From the record, it is apparent that both parents love their son and are both able and willing to see to his spiritual guidance, education, and rearing. Likewise, both Kathy and Gus can provide for Jackson’s basic and material needs. Jackson has more of a home, community and school history in Bastrop, but is beginning to make such ties in Arkansas as well.

The court placed significant weight upon the involvement and assistance of Gus’s extended family and their ability and willingness to help with Jackson’s raising, as well as upon the fact that Gus had a stable home, job and transportation. The court noted that the mother “now living in Cros-sett, Arkansas, appears to move around quite a bit and her family is not consistently available to help with the child.” The court recognized that the parties live only 30 miles apart, so such a short distance would not be a hindrance to either party spending time with Jackson or attending any of his extracurricular or school functions. We found, no doubt as did the trial court, significant credibility issues with the testimony of Kathy Atkins, several of them being misrepresentations to the trial court about the permanency of her move to Arkansas. While we agree with Kathy that | ⅜Jackson will be negatively affected by his separation from his half-sister, Kayleigh, we note that this is just one factor among the many that the trial court considered. Having read the record in its entirety, we find no abuse of the trial court’s discretion in this case and therefore will affirm the judgment of the lower court.

Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED. Costs are assessed to appellant, Katherine Estelle Atkins.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. David Malcolm HILL, Appellant.
    No. 47,568-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Malcolm DeCelle, Jr., APLC, West Monroe, LA, for Appellant.
    Jerry L. Jones, District Attorney, Kevin H. Johnson, Assistant District Attorney, for Appellee.
    Before BROWN, DREW and MOORE, JJ.
   DREW, J.

11 David Malcolm Hill (“Hill”) was convicted at bench trial of aggravated assault, a violation of La. R.S. 14:37. He was sentenced to pay a fine of $250.00 and court costs, or in default to serve 10 days in jail. The trial court delayed the execution of sentence pending the filing of a writ with this Court. Defendant, however, filed an appeal, which we converted to an application for supervisory review, granting certiorari, and docketing for disposition. We affirm.

I. OVERVIEW

On or about October 14, 2011, Brandon Grant was driving home near the Trenton Street golf course in West Monroe, accompanied by his two children. He passed a group of people who were flagging him to stop. Believing someone needed assistance, Grant stopped and backed his vehicle to where the group was standing outside the home of David and Dana Hill, who were about to walk several children to a neighbor’s home.

Grant, believing he was a good Samaritan, put his window down and asked what was going on. Various members of the group responded that he had been speeding and should slow down in a residential neighborhood.

What happened next is disputed. An argument, however, escalated, and the police were called. All agree that Hill moved toward Grant’s vehicle.

Hill claims he only reacted in self-defense. He admits having a gun, but denies that he pointed it at Grant.

12Grant stated that Hill pointed a gun at his head in front of his children, a version of events confirmed in part by another witness.

Hill at that time denied having a weapon on him, though he admitted that he had a gun in his vehicle. His wife, however, surreptitiously removed a gun from his pants pocket, and took it into their home.

Grant did have a pistol in his vehicle. The police removed it and returned it to Grant shortly thereafter. No arrests were made on that evening.

Three days later, Grant formally complained about how the officers handled the incident. Following interviews with witnesses, Hill and his wife were arrested.

II. TRIAL TESTIMONY 1. Brandon Grant testified that:

• late at night on October 14, 2011, he was driving toward his apartment complex with his children;

• he saw a group of people on the street who were flagging him down;

• he initially passed the group but backed up to see what was going on as he thought someone may need assistance;

• when he got to the group, the defendant’s wife told him to slow down;

• he denied speeding, at which point Hill intervened in the conversation;

• Hill began cursing him; Grant told him to stop; others in the group joined in;

«Mrs. Hill threatened to call the police, and may or may not have done so;

|s* when the police didn’t arrive, he tried to call the police, at which point Hill put a gun to his head, threatened to “blow his G*d d* *n” brains out;

• he was positive that the object pointed at him was, in fact, a gun;

• he tried to exit his vehicle, but Hill put his leg against the door;

• Hill moved away from the vehicle, and Grant called 9-1-1;

• as he waited at the scene, he saw Hill trying to give the gun to others;

• the police arrived less than five minutes after his 9-1-1 call;

• he saw Hill give his gun to his wife;

• at the scene, after interviewing Hill, the police officer told Grant that it had only been a cell phone that Hill put to his head, not a gun;

• he acknowledged that he had a weapon in his driver’s door, but he indicated he never reached for the weapon;

• he admitted speeding slightly — 32 miles per hour in a 25 mile per hour zone;

• he told Hill that he had a gun in his car only after Hill threatened him; and

• 13 police officers arrived on the scene following his 9-1-1 call.

2. Brandon Regan testified that:

• he and his family had supper at Hill’s house on the night of the incident;

• he and his son were tired so they left;

• after he had put his son to bed, a friend of his daughter’s arrived, asking him to come and help;

• he heard Grant yelling to the defendant, “You’re not going to point a gun at my head, especially in front of my kids”;

j^* Grant repeated this statement several times, with curse words;

• Hill was standing near Grant’s vehicle telling him to calm down;

• Grant and his children exited his vehicle, and Grant called the police;

• Grant told his sons to watch Hill to make sure he didn’t do anything;

• he heard Hill ask someone to take the gun and put it in the house;

• he saw Mrs. Hill take something from Hill’s back pocket, and hide it on her;

• he did not see a gun that night;

• the police spoke with Hill and Grant that night;

• he did not give a statement until a couple of days later; and

• when he initially approached the group, he heard Grant yelling and Hill telling him to calm down;

3. Shelly Regan testified that:

• she and her family had dinner with Hill and his family;

• her husband left early to take their son home while she and her daughter and her daughter’s friend remained at the Hills’ residence;

• she saw Grant’s vehicle speeding down the street;

• Mrs. Hill moved closer to the street and flagged for the driver to slow down;

• the vehicle began to back toward them;

• the driver rolled down his window and asked what was going on;

• Hill told Grant that he had been going too fast;

• Grant responded that he thought something was wrong and stopped to help;

• an argument began between Hill and Grant;

. . she heard Grant threaten Hill, and heard Hill respond;

• she saw Hill reach into his back pocket, approach Grant’s vehicle, and then put his hands on the top of the car;

• she then heard Grant say, “[Yjou mean to tell me you’re going to pull a gun to my head in front of my kids”;

• Hill backed away from the vehicle and Grant exited;

• she asked Grant why he was getting out of the vehicle, to which he replied that he was going to call the police;

• she never saw Grant with a weapon that night;

• Hill initially told the police that he did not have a gun on him;

• the officer then talked to Grant and removed a gun from his vehicle;

• she heard Hill ask his wife to get rid of the gun;

• Mrs. Hill reached for something and acted as if she were talking on her phone while she walked into her house;

• Mrs. Hill told her that she had hidden the gun;

• she never saw a gun that night but she heard Hill say he was putting the gun in his front pocket for his wife to take it inside;

• she recognized Grant because he had purchased a used vehicle from her;

• she later gave a statement to the police detailing her account of the events;

• she was present while her daughter was questioned by the officers;

• her daughter told police that she saw the gun or a black object in Hill’s hand and he held the object to Grant’s head; and

• she was frightened that evening and also in shock and embarrassed that the incident happened in her neighborhood.

|fi4. Detective Jennifer Smith of the West Monroe Police Department testified that:

• she became involved in the case on October 17, 2011, days after it occurred;

• Grant reported to the police department that day to express his displeasure as to how the department had responded to his 9-1-1 call;

• she spoke with the responding patrolman (Officer Allen), and concluded that the police department’s response to the incident was lacking;

• she assisted Officer Allen in re-interviewing the witnesses;

• after the interviews, she secured arrest warrants for Hill and his wife;

• she asked Mrs. Hill to retrieve the pistol,

■ and she complied;

• Hill provided inconsistent statements as to his conduct;

• Hill’s account of the events was significantly different from the statements of Grant and the Regans’ daughter, both of whom indicated that Hill held the gun to Grant’s head;

• the Regans’ daughter told her that she actually saw the weapon pressed against the victim’s skin;

• Hill had no concealed carry permit, even though he was an investigator with the Monroe Fire Department;

• no one saw Grant brandish his firearm, not even Hill;

• Mrs. Regan told her that Grant threatened to “blow somebody away”; and

17* the Regans’ daughter told her she had seen the indentation from the “black round object” on Grant’s head.

5. Dana Hill testified in substantial conformity with the other witnesses. She further testified that:

• she was with the group that saw Grant speeding;

• she saw Grant back up and ask what was up;

• Grant replied with a curse, at which point Mrs. Regan chastised Grant for cursing in front of the children;

• Grant responded with a threat to blast them all away;

• she got Grant’s license plate number and called the police;

• Grant threatened them several times;

• Mrs. Regan excitedly told her that Grant had a weapon;

• she saw her husband with his hands on the door, preventing Grant from exiting his vehicle;

• her husband usually carried a gun with him; and

• her husband later gave her the gun and she took it into the house.

6. David Malcolm Hill, the defendant, testified that:

• he worked as the chief arson investigator for the Monroe Fire Department and was a police officer with the Richwood Police Department;

• his training convinced him that Grant was moving much faster than the speed limit;

• when Grant lowered his window to ask what was up, Hill told him to slow down, at which point Grant cursed him and the others several times;

• he saw Grant reach toward the console of his vehicle;

• accordingly, he moved to the car door and put his knee on the door;

• he reached for his weapon and held it in his hand as Grant continued to threaten him six or seven times;

Is*he was not the aggressor, as he was only protecting himself and the group;

• his wife and Mrs. Regan were standing at the back of Grant’s vehicle while Mrs. Regan’s daughter ran to get Regan;

• once the others were out of the way, he looked at Grant’s hands and saw he did not have a weapon, so he backed off;

• his wife told him the police were on the way;

• Grant got out of the car and threatened to fight him;

• he admitted trying to conceal the pistol with his wife;

• Grant stayed aggressive toward him and he kept telling him to calm down;

• he denied to the police that he put the gun to Grant’s head;

• he was at that time certified to carry a weapon;

• he could not retreat, because there were others to protect; and

• he was highly critical of the investigation by the West Monroe Police.

III. SUFFICIENCY, SELF-DEFENSE, AND APPLICABLE LAW

Hill complains that the trial court did not consider the threats made against him by Grant, which justified his actions as self-defense, a position he argues is buttressed by the subsequent discovery that Grant had a pistol in his vehicle. He urges that this record is insufficient in establishing guilt beyond a reasonable doubt.

The state responds that sufficient evidence was presented by which to justify the defendant’s conviction of aggravated assault and that there was no self-defense justification for his unlawful conduct.

Our law is clear regarding:

19* a sufficiency review, and

• the statutory definitions applicable to the crime of aggravated assault,

|10* codal authority relative to the defense of justification and self-defense.

IV. APPLICATION OF LAW TO FACTS

The state presented sufficient evidence to convict the defendant of the charged offense. To convict him, the state was required to show that Hill, while armed with a dangerous weapon, attempted to commit a battery or intentionally placed another person in reasonable apprehension of receiving 11,a battery. Aiming a pistol at a victim from point blank range and threatening to “blow his brains out” satisfies the level of proof required for conviction, if believed by the trial court. The victim testified to these exact facts, and the court believed him.

Other witnesses did not see Hill put the gun to the victim’s head; however, they indicated that the victim was extremely upset and continuously asked Hill why he held a gun to his head. There was testimony that one of the witnesses actually saw a black object being placed against the victim’s head. That witness was not certain that the object was a gun but it was black.

Mrs. Hill admitted taking the firearm from her husband shortly after police arrived on the scene, behavior which seems inconsistent with innocence.

Hill changed his story about whether or not he had a gun, later admitting that he did hold a gun in his hand, but did not point it at the victim’s head.

One witness, considered by the trial court to be clearly unbiased, testified as to the imprint of a gun barrel on Grant’s forehead on the evening in question.

The testimony of Hill’s companions was inconsistent, except that not one witness saw Grant with a pistol, until it was removed from his car at the request of the police. Crucially, the moment he committed this crime, Hill had no knowledge that Grant even had a weapon in his vehicle.

112The trial court was able to observe the demeanor and motivations of the witnesses. It was in the best position by which to determine witness credibility.

The trial court found no overt or aggressive acts on the part of the victim that would justify the defendant’s resorting to using his weapon.

The trial court concluded that the defendant actually pointed the gun at the victim and that the force used was more than was necessary under these facts. Likewise, we find nothing here that justifies the violent actions taken by Hill.

The trial court correctly found the defendant guilty of aggravated assault.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . During testimony of many of the witnesses, the date of the incident is referenced as October 17, 2011. Detective Smith clarified that the correct date was October 14, 2011.

      . Grant told 9-1-1, “I told them I'm going home and these people flagged me down. I stopped to help them and then he put a gun upside my head and I got my kids up in this car.”

      . Grant testified that he had a permit to carry the gun.

      . "I’ll blast you all out!”

      . “No, no one’s going to blast anybody out.”

      . Hill was arrested for aggravated assault; his wife was arrested for obstruction of justice.

      . Hill first denied having a weapon, then admitted he had one but that it remained in his back pocket until he thought Grant was reaching for a weapon, at which point Hill took the gun into his hand. When he saw that Grant was only reaching for a cell phone, he put the weapon back in his pocket. He denied pointing the weapon at Grant's head, but admitted that it was near Grant’s head. He alleged that Grant had not been able to see the gun because he palmed it and held his hands against the top of Grant's vehicle.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299.
      Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,-032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

      . Aggravated assault is an assault committed with a dangerous weapon. La. R.S. 14:37. Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery. La. R.S. 14:36. Battery is the intentional use of force or violence upon the person of another. La. R.S. 14:33.

      . La. R.S. 14:18, Justification; general provisions
      The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances
      (1) When the offender’s conduct is an apparently authorized and reasonable fulfillment of any duties of public office; or
      (2) When the offender’s conduct is a reasonable accomplishment of an arrest which is lawful under the Code of Criminal Procedure; or
      (3) When for any reason the offender’s conduct is authorized by law; or
      (4) When the offender’s conduct is reasonable discipline of minors by their parents, tutors or teachers; or
      (5) When the crime consists of a failure to perform an affirmative duty and the failure to perform is caused by physical impossibility; or
      (6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed; or
      (7) When the offender’s conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.

      .La. R.S. 14:19 Use of force or violence in defense
      A. The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.
      La. R.S. 14:21 Aggressor cannot claim self defense
      A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.
      La. R.S. 14:22 Defense of others It is justifiable to use force or violence or to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect others.

      . The gun confiscated later was black in color.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    Scott GAILEY v. John L. BARNETT, JCL Enterprises, LLC, United Agents Insurance Co. of Louisiana, Jacqueline Cleggett Lucas & State Farm Fire & Casualty Co.
    No. 2012-CA-0830.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2012.

      Patrick Hillary Hufft, Hufft & Hufft, APLC, New Orleans, LA, for Plaintiff/Appellant, Scott Gailey.
    John E. Unsworth, Jr., Lauren E. Bris-bi, Hailey McNamara Hall Larmann & Papale, L.L.P., Metairie, LA, for Defendants/Appellees, John Barnett, and State Farm Fire and Casualty Company.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
   DENNIS R. BAGNERIS, SR., Judge.

|ffn this personal injury case, plaintiff, Scott Gailey (“Mr. Gailey”), appeals a trial court judgment, which granted. summary judgment in favor of defendants, Dr. John L. Barnett (“Dr. Barnett”) and State Farm Fire and Casualty Company, and dismissed his claims with prejudice. For the following reasons, we reverse.

Facts

Dr. Barnett owned the property/building located at 8726 Chef Menteur Highway in New Orleans, Louisiana. Dr. Jacqueline Cleggett Lucas (“Dr. Lucas”), a pain management doctor, leased office space within the building. Dr. Lucas routinely saw patients during the nighttime hours, and for that reason, she hired Tyrone Martin, an off duty New Orleans police officer, to be present on the premises during her late-night appointments.

On the evening of March 28, 2000, sometime between 9:30 and 10:30 p.m., Mr. Gailey arrived for his appointment with Dr. Lucas.. During this time, Mr. Gailey testified that he had a conversation with Mr. Martin as to whether the air conditioner in the building was working properly. At that time, Mr. Gailey ^testified that he offered to check the air conditioning unit, which was located on the roof of the three-story building. Mr. Gailey testified that Mr. Martin escorted him upstairs to a door that led to a hatch with a ladder, which led to the rooftop and that he went onto the roof to check the air conditioner. Mr. Gailey testified that he walked across the roof to the air-conditioning unit and that it appeared to be frozen over. On his way back across the roof, Mr. Gailey fell through the roof and sustained personal injuries as a result. Although Mr. Gailey testified that he did not know what caused his fall, his memorandum in opposition to summary judgment states that he stepped “through a piece of corrugated plastic that blended in with the rest of the roof, and he fell 20-30 feet to the floor below ...”

Mr. Gailey filed suit against Dr. Lucas and Dr. Barnett and their insurers on March 19, 200, alleging several theories of negligence. On May 16, 2011, Dr. Barnett and State Farm filed a motion for summary judgment, wherein they alleged that Mr. Gailey cannot carry his burden of proof to establish that there was an unreasonably dangerous condition on the premises or that defendants had actual or constructive knowledge of any purportedly unreasonably dangerous condition as required under La. C.C. art. 2317.1. In support of their motion, Dr. Barnett and State Farm attached excerpts from the depositions of Mr. Gailey and Dr. Barnett.

Mr. Gailey filed an opposition to the motion for summary judgment on July 13, 2011, wherein he alleged that there are material issues of fact remaining as to whether Dr. Barnett had a duty to warn Dr. Lucas and/or anyone else who might have an occasion to walk on the roof, that there were plastic skylights on the roof that blended with the corrugated tin and that the skylights would be difficult to see at night. In support of his opposition to the motion for summary judgment, Mr. IsGailey attached his own deposition as well as the depositions of Dr. Lucas, Dr. Barnett, and Mr. Martin’s statement.

On July 20, 2011, Dr. Barnett filed a reply to Mr. Galley’s opposition arguing that the presence of a skylight on a roof is not a defect nor is it an unreasonably dangerous condition and that a building owner is not responsible for an injury that results from a condition which should have been observed by the individual through the exercise of ordinary care. On November 17, 2011, Mr. Gailey responded to Dr. Barnett’s supplemental memorandum in support of motion for summary judgment arguing that the “skylights” were actually just holes cut into the roof covered by corrugated plastic and that they posed an unreasonable danger to anyone who found themselves on the roof at night. In his response, Mr. Gailey attached as an exhibit photographs of the roof.

After a hearing on November 17, 2011, the trial court granted the motion for summary judgment, dismissing Mr. Gailey’s petition with prejudice. On January 4, 2012, Mr. Gailey filed a motion for rehearing/new trial, which the trial court denied on May 2, 2012. At that time, the trial court provided written reasons for its judgment denying the motion for rehearing/new trial as well as reasons for granting Dr. Barnett’s motion for summary judgment. Mr. Gailey now appeals this final judgment.

Standard of Review

Appellate courts review summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. In re Bester, 00-2208, p. 3 (La.App. 4 Cir. 9/18/02), 828 So.2d 644, 646. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, |4and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof remains with the movant. An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denial of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art. 967; Longo v. Bell South Telecommunications, Inc., 03-1887, pp. 4-5 (La.App. 4 Cir. 10/7/04), 885 So.2d 1270, 1273-1274. In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but is to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Id.

Discussion

La. C.C. arts. 2315 and 2316 are the codal foundation for delictual liability for negligence in Louisiana. La. C.C. arts. 2317 and 2317.1 define the basis for delic-tual liability for defective things. La. C.C. art. 2322 defines the basis for delictual liability for buildings. In 1996, the Louisiana legislature adopted La. C.C. art. 2317.1 and significantly amended La. C.C. art. 2322. La. C.C. art. 2317.1 currently provides, in pertinent part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of treasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

La. C.C. art. 2322 currently provides in pertinent part:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Accordingly, a plaintiff alleging negligence or strict liability of a building owner or custodian must now prove the following elements: (1) that the defendant knew or should have known of the vice or defect; (2) that the damage could have been prevented by the exercise of reasonable care; and (3) that the defendant failed to exercise such reasonable care. Keller v. Monteleon Hotel, 09-1327, p. 4 (La.App. 4 Cir. 6/23/10), 43 So.3d 1041, 1043. There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. To assist the trier-of-fact, many factors are to be considered and weighed, including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; and (6) the social utility involved. Dupree v. City of New Orleans, 99-3651, p. 14 (La.8/31/00), 765 So.2d 1002, 1012. It is well-settled law that a landowner owes a duty to a plaintiff to discover any unreasonably dangerous conditions and to either correct the condition or warn the plaintiff of its existence. Eisenhardt v. Snook, 08-1287, pp. 5-6 (La.3/17/09), 8 So.3d 541, 544-45. Generally a defendant has no duty to protect against an open and obvious hazard. Id. If the facts of a particular case show that the complained of condition | (¡should be obvious to all, the condition is not unreasonably dangerous, and the defendant owes no duty to the plaintiff. Id. It is the court’s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case. See Burns v. CLK Investments V, L.L.C., 10-277, p. 15 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152, 1161-1162.

Dr. Barnett’s testimony in his deposition is that the skylight was essentially just a piece of corrugated plastic that allows the sunlight to go through. Dr. Barnett also testified that the skylights were indistinguishable from the rest of the roof and that he did not mention their existence to Dr. Lucas or anyone else maintaining the building. These facts alone demonstrate a genuine issue of material fact with regard to whether Dr. Barnett knew or should have known of the dangerous condition of the skylights and whether the accident could have been avoided by his disclosing the defect. The issue for the trier of fact is not only the reasonableness of the actions and inactions of Dr. Barnett, but also the comparative fault, if any, of Mr. Gailey walking on a roof at night without any light source. For these reasons, we find that issues of material fact existed sufficient to overcome summary judgment under these particular facts and circumstances, and that the trial court erred in granting same.

Accordingly, we hereby reverse the judgment of the trial court, which granted Dr. Barnett’s motion for summary judgment and dismissed plaintiffs claims against them.

REVERSED AND REMANDED

      . Although the petition states the address as 8736 Chef Menteur Highway, we will refer to the property as 8726 Chef Menteur Highway since Mr. Barnett (the owner) testified that to be the address.

      . Mr. Gailey reached a settlement with Dr. Lucas and her insurer.

      . Although Mr. Gailey argues that Dr. Barnett's previously filed motion for summary judgment was denied in 2008, this Court recognizes that a party may re-urge a previously denied motion for summary judgment. See Paragon Lofts Condominium Owners Ass’n, Inc. v. Paragon Lofts, L.L.C., 09-0943, pp. 4-5 (La.App. 4 Cir. 2/10/10), 32 So.3d 303, 306.