author: SANDRA CABRINA JENKINS, Judge.

text:
    STATE of Louisiana v. Jose Del Carmen L. RAMIREZ.
    No. 2013-KA-1554.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, Counsel for Defendant/Appellant.
    (Court composed of Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

hThe defendant, Jose Del Carmen Ramirez, appeals his conviction of second-degree murder, a violation of La. R.S. 14:30.1. In the three assignments of error presented to this Court on appeal, the defendant raises the issues of sufficiency of evidence to support conviction, the admission of hearsay evidence, and the denial of the defendant’s motion to record simultaneous interpretations. For the following reasons, we affirm the defendant’s conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of May 1, 2009, the victim, Irma Sanchez, and her husband and two children were having a picnic with friends outside of the Pick and Go convenience store on Elysian Fields Avenue. Upon arriving at the gas station, the defendant, Jose Del Carmen Ramirez, recognized one of the people at this picnic as someone with whom his brother had recently had an altercation. The defendant approached the group inquiring about the incident and ultimately retrieved a machete from the trunk of his car because the other individual was armed with a bat. After the defendant swung the machete at the other individual multiple times, he fled the scene in a red Pontiac. This fight was captured on the gas station’s surveillance system.

1 ¡.About twenty minutes later, the red Pontiac returned' to the gas station; and the passenger began shooting at the group at the picnic while the vehicle drove slowly away. This incident was not captured on any ■ surveillance system. Three eyewitnesses independently identified the defendant as the shooter to the responding officer, Officer Janssen Valencia (“Officer Valencia”), and informed her as to where the defendant lived.

Thereafter, the three eyewitnesses and Officer Valencia proceeded to locate the shooter’s residence, as the individuals did not know his physical address. Upon passing the anticipated location, the three eyewitnesses identified the man exiting the red Pontiac, the defendant, as the person they had seen shoot the victim. The defendant was then arrested and charged with second-degree murder. After a three-day trial, a jury found "the defendant guilty as charged. The defendant was sentenced to serve life in prison, without any benefits. This appeal followed.

ERRORS PATENT

In accordance with La.C.Cr.P. art. 920, all appeals are reviewed by this Court for errors patent on the face of the record. After reviewing the record, we note one error patent. At the sentencing hearing, the trial court vaguely informed the defendant that his sentence to life imprisonment was to be served without “any benefits.”

Pursuant to La. R.S. 14:30.1, a sentence to life imprisonment at hard labor must be served without the benefit of parole, pro-" bation, or suspension of sentence. The minute entry indicates that the imposed sentence was to be served without the benefit of probation, parole, or suspension. However, according to the November 11, 2011 sentencing hearing transcript, the trial court merely stated that the defendant was to “serve life imprisonment ... without any benefits.”

|3Despite the vagueness of the sentence, pursuant to La. R.S. 15:301.1(A) and State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with the statutory restrictions as to the specified benefits. (“In instances where these restrictions are not recited at sentencing, La.Rev.Stat. Ann. § 15:301.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court.”) Id., 2000-1725, p. 10, 800 So.2d at 799; See State v. Byrd, 2012-0556, p. 14 (La.App. 4 Cir. 6/5/13), 119 So.3d 801, 809-810; State v. Molere, 2011-1657, p. 7 (La.App. 4 Cir. 9/5/12), 99 So.3d 1050, 1054; State v. Phillips, 2003-0304, p. 3 (La.App. 4 Cir. 7/23/03), 853 So.2d 675, 677. Although the defendant has not assigned error as to his sentence, for the reasons expressed in Williams, this error patent merits no relief.

LAW AND ANALYSIS

The defendant raises three assignments of error relating to his trial and conviction. In his first assignment of error, the defendant raises the issue of sufficiency of the evidence to support his conviction. When issues are raised on appeal as to the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence as a finding of insufficient evidence warrant's acquittal of the defendant and the remaining assignments of error become moot. State v. German, 2012-1293, p. 11 (La.App. 4 Cir. 1/22/14), 133 So.3d 179, 190 (citing State v. Marcantel, 2000-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55). Accordingly, the sufficiency of the evidence claim will be addressed first.

1 ¿Sufficiency of Evidence

In State v. Huckabay, 2000-1082 (La. App. 4 Cir. 2/6/02), 809 So.2d 1093, this Court identified the standard for reviewing a sufficiency of the evidence challenge:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mus-sall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

Id., 2000-1082, p. 32, 809 So.2d at 1111(quoting State v. Ragas, 98-0011, pp. 13-14 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, 106-07).

The reviewing court shall not disturb the fact-finder’s determination concerning the credibility of witnesses when reviewing sufficiency of the evidence | ^claims unless it is clearly contrary to the evidence. State v. Rosiere, 488 So.2d 965, 968 (La. 1986); State v. James, 2009-1188, p. 4 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996 (citing State v. Vessell, 450 So.2d 938, 943 (La.1984)).

The defendant in the instant case was convicted of second-degree murder. We have reviewed the elements of this offense and, viewing the testimony and evidence submitted at trial in the light most favorable to the State, have determined that the evidence is sufficient to support a finding of guilt. The pertinent elements of the defendant’s conviction are: the killing of a human being, while engaged in the perpetration or attempted perpetration of assault by drive-by shooting, even though the perpetrator did not possess the specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1(A)(2). La. R.S. 14:37.1 defines assault by drive-by shooting as an “assault committed with a firearm when an offender uses a motor vehicle to facilitate the assault.”

The defendant only challenges the sufficiency of the evidence establishing his identity as the person who shot the victim. When the challenge is to the defendant’s identity as the perpetrator, the prosecution is required to negate any reasonable probability of misidentification. State v. Pierce, 2012-0879, p. 4 (La.App. 4 Cir. 12/10/18), 131 So.3d 136, 140; State v. Galle, 2011-0930, p. 31 (La.App. 4 Cir. 2/13/13), 107 So.3d 916, 935; State v. Everett, 2011-0714, p. 15 (La.App. 4 Cir. 6/13/12), 96 So.3d 605, 619. In support of his argument, the defendant argues that there is no physical evidence connecting him to the crime scene, no witness testified at trial identifying him as the shooter, and that his confession was coerced.

| fiIn response to the defendant’s allegation regarding the absence of physical evidence, the defendant correctly points out that no gun was recovered matching the bullet casings that were found on the scene, and no video surveillance exists depicting the shooting. However, this Court has held that despite the lack of physical evidence, the testimony of any one witness, if believed by the trier of fact, can provide sufficient support for a finding of guilt. See State v. McElveen, 2010-0172, p. 19 (La.App. 4 Cir. 9/28/11), 73 So.3d 1033, 1052 (citing State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369); State v. Allen, 2003-2156, p. 8 (La.App. 4 Cir. 5/19/04), 876 So.2d 122, 127 (citing Marcantel, p. 9, 815 So.2d at 56); State v. McZeal, 99-3061, p. 14 (La.App. 4 Cir. 11/29/00), 779 So.2d 826, 834 (citing State v. Jones, 97-2591, p. 7 (La.App. 4 Cir. 9/8/99), 744 So.2d 165, 169); see also State v. Robinson, 2002-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79 (citing State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018). Thus, the absence of physical evidence by itself fails to prove that the evidence was insufficient.

The defendant also contends the evidence is not sufficient to support his conviction because no witness testified at trial identifying him as the shooter. Through Officer Valencia’s testimony, the State provided testimony that a total of three eyewitnesses identified the defendant as the shooter. The defendant pre-. sented testimony from one witness concerning his alibi. When reviewing a conviction for sufficiency of the evidence, it is well settled that an appellate court considers all evidence presented at trial, including admissible and inadmissible evidence which was erroneously admitted. State v. Falkins, 2012-1654, pp. 8-9 (La. App. 4 Cir. 7/23/14), 146 So.3d 838 (citing State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Brown, 2008-1434, p. 8 (La.App. 4 Cir. 3/18/09), 7 So.3d 1238, 1242). Accordingly, 17regardless of whether the identification statements admitted through Officer Valencia were improper, they will still be considered during our review of the sufficiency of the evidence.

Additionally, the defendant’s argument that no witness testified at trial identifying him as the shooter is a misstatement of the record. The victim’s husband testified on direct examination that the shooter was the person who was initially fighting with the machete, and on cross-examination stated that the person using the machete was the defendant. Considering this evidence, it was well within the jury’s discretion to conclude that the defendant was the shooter, particularly in light of the defense’s own admission that the defendant was the one swinging the machete.

In the defendant’s final argument as to the sufficiency of the evidence, he asserts that his confession was admitted in error as it was coerced and not given voluntarily, freely, or knowingly. The defendant is not disputing the trial court’s ruling on his motion to suppress the confession; rather, he is alleging that the State’s reliance on the statement is, in and of itself, insufficient to support his conviction because the confession was coerced.

This Court stated in State v. Lee, 482 So.2d 194 (La.App. 4 Cir.1986), that:

[T]he rules governing the admissibility of confessions are applicable to admissions involving the existence of criminal intent or inculpatory fact. The Trial Court’s determination of the admissibility of either a confession or admission will not be disturbed on review unless it is not supported by the evidence. When reviewing the trial court’s determination of admissibility, the reviewing court may look to the totality of the evidence presented at the suppression hearing and at the trial itself.

Id., 482 So.2d at 196 (internal citations omitted). The defendant’s only argument in support of coercion is that he was handcuffed to a table in a small room for ^approximately one hour before his statement was recorded, and he was purportedly threatened that “his family would be placed in jail unless he confessed to the shooting.” The defendant’s failure to present corroborating evidence to support his assertion that threats were made makes this argument unconvincing.

For the abovementioned reasons, we find that the testimony and evidence presented was sufficient to support the jury verdict of guilt beyond a reasonable doubt of second-degree murder. This assignment of error is without merit.

Eyewitness Identification Testimony

In this additional assignment of error, the defendant contends that the testimony concerning the three eyewitnesses’ identifications was inadmissible hearsay. In support of this contention, the defendant argues that despite no witness identifying him at trial, the state was allowed to circumvent the hearsay safeguards and present evidence through the officers identifying the defendant as the shooter. Furthermore, the defendant argues that the- trial court erroneously allowed the state to refer to these identification statements during opening statements and closing arguments.

Unless an irregularity or error is objected to at the time of occurrence, it cannot be complained of after a verdict. La.C.Cr.P. ai’t. 841. A simultaneous objection is required so that the trial court can rule accordingly and cure or prevent any potential error. Thus, on appeal, the defense is limited to those grounds raised at trial. State v. Keys, 2012-1177, p. 13 (La.App. 4 Cir. 9/4/13), 125 So.3d 19, 31 (citing State v. Baker, 582 So.2d 1320, 1336 (La.App. 4 Cir.1991)). A review of the record reveals that no objection was made when Officer Valencia testified to the identifications during direct - examination. Likewise, the record contains no objection made during opening statements or closing arguments. As such, any ^alleged error as to Officer Valencia’s testimony and the references to it during opening statements and closing arguments was not preserved for appellate review. However, a proper objection was made as to the statements made by Detective Anthony Pardo and Sergeant Regina Williams. Because the defendant has preserved only his objections to these statements for appellate review, they are the only statements that will be considered by this Court.

According to La. C.E. art. 801(A)(1) and (C), hearsay is “an oral or written assertion ... other than one made by the de-clarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” See State v. Augustine, 2013-0397, p. 18 (La. App. 4 Cir. 1/22/14), 133 So.3d 148, 159. “Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability.” State v. Weber, 2002-0618, p. 20 (La.App. 4 Cir. 12/4/02), 834 So.2d 540, 553-54.

The trial transcript reflects that Detective Pardo stated that the three eyewitnesses indicated that the shooter’s first name was “Jose” and provided the other detectives with his address. The trial transcript further reveals that Sergeant Williams testified that upon her arrival at the scene of the shooting, she heard through the dispatch radio that the alleged shooter had already been identified, located, and arrested.

A reversal of a defendant’s conviction is appropriate only if, pursuant to the harmless error analysis, there is “a reasonable possibility that the evidence might have contributed to the verdict.” State v. Skipper, 2011-1346, p. 10 (La.App. 4 Cir. 10/10/12), 101 So.3d 537, 544 (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Gibson, 391 So.2d 421, 426-27 (La. 1980)). Furthermore, in making this determination, “importance of the evidence to the State’s case, the presence or absence of additional corroboration of the evidence, and the overall strength of the State’s case” are factors that should be considered. Weber, 2002-0618, p. 21, 834 So.2d at 554 (citing State v. Wille, 559 So.2d 1321, 1332 (La.1990)).

While an argument could possibly be made that Detective Pardo and Sergeant Williams’ statements constitute hearsay evidence, even if both of these statements were revoked, the jury was still presented with Officer Valencia’s testimony that three eyewitnesses were able to identify the defendant as the shooter and provide them with the defendant’s address. Moreover, the jury was also presented with live testimony from the victim’s husband, who testified that the individual involved in the machete fight was the same individual who later returned in the red Pontiac and shot the victim. Thus, Detective Pardo’s and Sergeant Williams’ identification statements were cumulative in that they merely corroborated this evidence.

The jury obviously chose to believe the evidence presented by the State, and this Court is not called upon to independently question whether it believes the witnesses’ testimony. Because they were cumulative, we cannot say that Detective Pardo’s and Sergeant Williams’ identification statements reasonably contributed to the verdict. Therefore, the admission of this testimony, if error, is harmless, and the defendant failed to show he was entitled to relief on this basis.

Motion to Record Simultaneous Interpretations

In the defendant’s third and final assignment of error, he asserts the trial court erroneously denied his motion to record simultaneous interpretations at trial. Specifically, the defendant assigns error to the trial judge’s failure to consider the | t defendant’s indigent status, as determined by the trial court, when permitting him to record the proceedings at his own expense. It should be noted at the outset of this assignment of error that the record reflects that the defendant does not speak English, and his primary language is Spanish.

Pursuant to La.C.Cr.P. art. 25.1, a court is required to appoint an interpreter, if requested, for a non-English-speaking person who is a principal party in a court proceeding after consultation with said person or his attorney. Here, the defendant was appointed an interpreter, Haidy Ochoa, and his testimony was translated into English. The defendant, however, argues that as only the translated English version was recorded, it is impossible to meet his burden of proving specific prejudice. In support of his argument, the defendant notes several factors, such as the translator’s lack of qualifications, the numerous translation issues during trial, and the initial translator’s discharge for threatening witnesses at the grand jury proceedings, that would allegedly show actual prejudice if the English-to-Spanish and Spanish-to-English interpreter’s translations had been recorded.

In addressing the defendant’s first argument, we do not agree. While La. C.Cr.P. art. 25.1 requires appointment of an interpreter who is “competent to interpret or to translate the proceedings to him and to interpret or translate his testimony,” the interpreter is required to be qualified only if the accused is deaf or severely hearing-impaired; the defendant in the instant case is neither. State v. Santos, 2009-789, p. 9 (La.App. 5 Cir. 4/13/10), 40 So.3d 167, 173; See La. R.S. 15:270. Despite the defendant’s contention that the interpreter did not possess the requisite credentials, Ms. Ochoa did not need to be formally certified or otherwise qualified; thus, her appointment was not error.

| iaThe defendant’s second argument concerning the translation discrepancies is likewise without merit. When, as here, a defendant has failed to point to any specific prejudice related to instances of improper translation, the trial court’s judgment shall not be reversed by the appellate court. See State v. Gonzalez, 2007-0532, pp. 5-6 (La.App. 4 Cir. 11/28/07), 973 So.2d 115, 118; see also La.C.Cr.P. art. 921. In the present case, the defendant has not claimed any specific prejudice arising out of the interpreter’s translations. Rather, the defendant asserts that because the interpreter asked for shorter questions, clarification, or a correction a total of eight times during the defendant’s testimony, the translation was deficient. This assertion is merely an assumption and, absent support, falls short of demonstrating that the defendant’s substantial rights were violated.

The defendant’s final argument on this assignment of error also merits no relief. The fact that the initial interpreter was discharged from this case for her inappropriate behavior during pre-trial proceedings is wholly unrelated to Ms. Ochoa and Ms. Ochoa’s role at trial. Accordingly, we find no error in the trial court’s denial of the defendant’s motion to record simultaneous interpretations.

DECREE

For the forgoing reasons, we affirm the conviction of the defendant, Jose Del Carmen Ramirez.

AFFIRMED.

LANDRIEU, J., concurs in the result.

LOBRANO, J., concurs in the result.


source: Caselaw Access Project

license: Public Domain

text:
    Daffney DAVIS v. RIVERSIDE COURT CONDOMINIUM ASSOCIATION PHASE II, INC., Gulf Property Investments, L.L.C., Saia Plumbing Co., Inc., And Catlin Specialty Insurance Company.
    No. 2014-CA-0023.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2014.

      Rodney Glenn Cater, Amanda Cater Graeber, Cater & Associates, LLC, New Orleans, LA, for Plaintiff/Appellant.
    George P. Hebbler, Jr., Thomas Milton Young, Hebbler & Giordano, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

_|¿This is a personal injury suit. Plaintiff, Daffney Davis, sustained scald burns from the bathwater at her leased condominium. Plaintiff filed suit against the owner and lessor of her condominium unit, Gulf Property Investments, L.L.C. (“GPI”), and other defendants, asserting claims of strict liability and negligence. GPI filed a motion for summary judgment seeking dismissal of plaintiffs claims against it. Plaintiff then filed a motion for partial summary judgment against GPI on the issue of liability. The trial court denied plaintiffs motion for partial summary judgment, granted summary judgment in favor of GPI, and dismissed plaintiffs claims against GPI with prejudice.

Plaintiff now appeals the trial court’s judgment granting GPI’s motion for summary judgment. After de novo review, we affirm.

FACTS AND PROCEDURAL HISTORY

In July, 2007, plaintiff leased condominium unit # 381 at Riverside Court Condominiums (“Riverside”) from the unit owner, GPI. GPI owns only one individual unit at IgRiverside, which comprises 198 units. All condominium units at Riverside are managed by the condominium association, Riverside Court Condominium Association Phase II, Inc. (“RCCA”).

While living at unit #381, on January 21, 2011, plaintiff drew a bath for herself. As plaintiff stepped into the bathtub, the water scalded her; and before she could get out of the bathtub, plaintiff sustained severe burns. Plaintiff called 911 for help, and an ambulance arrived and took her to East Jefferson General Hospital. Due to the severity of her burns, plaintiff was transported to Joseph M. Still Burn Center in Augusta, Georgia. Plaintiff was treated for 40% body surface area burns, and she remained hospitalized for two to three months.

On July 11, 2011, plaintiff filed suit against GPI, RCCA, Catlin Specialty Insurance Company, and Saia Plumbing Company seeking damages for the injuries she sustained at Riverside unit # 381 on January 21, 2011. Within the petition, plaintiff asserted claims of negligence and strict liability against both GPI and RCCA. Plaintiff alleged that both defendants had complete custody and control of the leased premises and of the systems providing hot water to the leased premises. Plaintiff also alleged that both defendants owed and breached their respective duties to inspect the premises, make all necessary repairs, and discover any vices or defects in the premises. Plaintiff further alleged that GPI and RCCA were both strictly liable as the owner and custodian of the premises and the hot water system, pursuant to La. C.C. arts. 2317 and 2317.1. Finally, in plaintiffs |3second supplemental and amending petition, plaintiff alleged that GPI breached the warranties against vices and defects pursuant to La. C.C. arts. 2696, 2697, and 2698.

On October 23, 2012, GPI filed a motion for summary judgment seeking dismissal of all claims asserted against it by plaintiff. GPI argued that, the lease agreement with plaintiff relieved GPI of the lessor’s warranty against vices or defects in the premises; and plaintiff assumed responsibility for the condition of the premises, pursuant to La. R.S. 9:3221. GPI also argued there is no evidence to support plaintiffs claims of negligence or strict liability against it, because GPI had no custody, control, or responsibility for the hot water system or any alleged defect causing plaintiffs injuries. GPI owed no duty to plaintiff with respect to those things that were not within its custody or control; and furthermore GPI neither knew nor could have known of the alleged defect in the leased premises. Without custody or control of the thing or knowledge of the defect, GPI argued, there was no evidence to support plaintiffs negligence or strict liability claims.

On June 20, 2013, plaintiff filed an opposition to GPI’s motion for summary judgment, and, on July 22, 2013, plaintiff filed a motion for partial summary judgment against GPI on the issue of liability.

On September 20, 2013, the trial court held a hearing on the cross motions for summary judgment. In consideration of the parties’ arguments and all exhibits introduced into the record, the trial court granted summary judgment in favor of GPI and denied plaintiffs motion for summary judgment. Plaintiff now appeals |4the trial court’s judgment, signed on October 15, 2013, granting GPI’s motion for summary judgment and dismissing all claims against GPI with prejudice.

STANDARD OF REVIEW

Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s determination on the motion for summary judgment, i.e., whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Schultz v. Guoth, 10-0343, pp. 5-6 (La.1/19/11), 57 So.3d 1002, 1005-06 (citing Samaha v. Rau, 07-1726, p. 4 (La.2/26/08), 977 So.2d 880, 883.)

Summary judgment is properly rendered “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any... show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). The initial burden of producing evidence to support the motion for summary judgment is on the moving party, “who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case.” Schroth v. Estate of Samuel, 11-1385, p. 3 (La.App. 4 Cir. 4/18/12), 90 So.3d 1209, 1211 (quoting Schultz, 10-0343 p. 4, 57 So.3d at 1006). The moving party need not negate all essential elements of the adverse party’s claim; rather the moving party must point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim. Smith v. Treadaway, 13-0131, p. 4 (La.App. 4 Cir. 11/27/13), 129 So.3d 825, 828; La. C.C.P. art. [S966(C)(2). “At that point, the party who will bear the burden of proof at trial must present sufficient evidence to demonstrate that he or she will be able to carry that burden at trial.” Id. If the moving party has properly supported the motion for summary judgment, then “the failure of the non-moving party to produce evidence of material factual dispute mandates the granting of the motion.” Wright v. Louisiana Power & Light, 06-1181, p. 16 (La.3/9/07), 951 So.2d 1058, 1070 (quoting Babin v. Winn-Dixie Louisiana, Inc., 00-0078, p. 4 (La.6/30/00), 764 So.2d 37, 40).

DISCUSSION

In her first and second assignments of error, plaintiff contends there are genuine issues of material fact that preclude summary judgment regarding GPI’s liability for plaintiffs injuries. First, plaintiff asserts that GPI has ownership, custody and control of the premises; therefore, GPI is strictly hable for injuries caused by vices or defects in those premises. Plaintiff further asserts that GPI is strictly liable under the lessor’s warranties in the Civil Code which plaintiff did not waive pursuant to La. R.S. 9:3221. Finally, plaintiff argues that GPI is hable for negligence for its failure to prevent or warn of the unreasonably dangerous condition on the premises that caused plaintiffs injuries.

Strict Liability

Under Louisiana law, a party is responsible not only for damage resulting from one’s own act, but also for damage caused by things within one’s custody. La. C.C. art. 2317. Where damages are claimed as a result of vices or defects in Lthe thing within one’s custody, then this precept of strict liabihty is to be understood with the following modification:

[t]he 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 reasonable 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. 2317.1; see Graubarth v. French Market Corp., 07-0416, p. 4 (La. App. 4 Cir. 10/24/07), 970 So.2d 660, 663-64. Thus, to establish a party’s liability under La. C.C. arts. 2317 and 2317.1, the plaintiff must prove: (1) defendant owned or had care, custody, or control of the thing causing harm; (2) a vice or defect in the thing created an unreasonable risk of harm; and (3) the vice or defect in the thing was a cause-in-fact of plaintiffs injuries. Jones v. Peyton Place, Inc., 95-0574, p. 7 (La.App. 4 Cir. 5/22/96), 675 So.2d 754, 761; see Graubarth, 07-0416, p. 4, 970 So.2d at 664.

Under these codal articles, liability arises out of the party’s legal relationship to the thing posing an unreasonable risk of harm; and liability is imposed based on custody or garde, not solely ownership. Dupree v. City of New Orleans, 99-3651, p. 7 (La.8/31/00), 765 So.2d 1002, 1008. “[C]ustody or garde is a broader concept than ownership and custody or garde may be shared by multiple parties.” Graubarth, 07-0416, p. 4, 970 So.2d at 664. “[I]n determining whether a thing is in one’s custody or garde, courts should consider (1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing.” Dupree, 99-3651, [7p. 8, 765 So.2d at 1009 (citing Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991); King v. Louviere, 543 So.2d 1327 (La.1989); Loescher v. Parr, 324 So.2d 441 (La.1975)). Determining custody or garde of the thing is a fact driven determination. Dupree, 99-3651, p. 7, 765 So.2d at 1009; Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991). “Although there is a presumption that an owner has custody or garde of its property, this presumption is rebuttable. One way to rebut the presumption is by establishing a contractual undertaking by another to maintain and control the property.” Gallina v. Hero Lands Co., 03-0331, p. 5 (La.App. 4 Cir. 10/7/03), 859 So.2d 758, 762.

GPI counters plaintiffs claim of strict liability by arguing it had no custody or control over the defective thing — the hot water system — that posed an unreasonable risk of harm. GPI argues that its ownership of unit # 381 does not translate to custofty or control of all elements of the condominium property. GPI asserts that RCCA, the condominium association, has complete custody and control of common elements at Riverside, including a central hot water system for all units. Due to the fact that the hot water system is a common element, GPI asserts it has no custody or control of the defective thing and is not strictly liable.

In support of its position of non-liability, GPI relies upon the provisions of the condominium Declaration creating and establishing the Riverside condominium regime, pursuant to the Louisiana Condominium Act, La. R.S. [s9:1121.101 et seq. Under the Louisiana Condominium Act, portions of the condominium property, known as units, are subject to individual ownership and the remainder of the property is owned in indivisión by all unit owners. See La. R.S. 9:1121.103. The portions of the condominium property that are not part of any individual unit are known as the common elements. Id. The Riverside Declaration provides a non-exclusive list of the common elements at Riverside that include, “all compartments or installations of central services such as power, light, gas, cold and hot water;” and “all other elements of the Building or Parcel desirably or rationally of common use.... ” The Declaration further specifies that the maintenance, management, operation, repair, or replacement of the common elements “shall be the responsibility of and shall be furnished by the [RCCA].”

As a unit owner, GPI has a percentage ownership in the common elements. The percentage of ownership in the common elements held by each unit owner is determined by the square footage of the individual unit in relation to the total square footage of all Riverside units. Accordingly, GPI owns a 0.559 percent interest in the common elements. Despite holding a percentage of ownership in the common elements, the use of those common elements is regulated by the Riverside Declaration, the RCCA Bylaws, and the RCCA Articles of Incorporation, as permitted by provisions of the Louisiana Condominium Act.

As a designated power of any condominium association, La. R.S. 9:1123.102 provides, in pertinent part:

Subject to the provisions of the declaration, the association, even if unincorporated, may:
|3(1) Adopt and amend bylaws and rules and regulations.
(6) Regulate the use, maintenance, repair, replacement, and modification of common elements.
(14) Exercise any other powers conferred by the declaration or bylaws.
(16) Exercise any other powers necessary and proper for the governance and operation of the association.

Under a condominium regime, unit owners have as much use, control or access to the common elements as specifically conferred and regulated by the Declaration, Bylaws and Articles of Incorporation.

The Riverside Declaration particularly provides “Use and Occupancy Restrictions” and includes the following provision on the use of the common elements:

The Common Elements shall be used only by' the Unit Owners and their agents, ... for access, ingress to and egress from the respective Units and for other purposes incidental to use of the Units; provided, however, the garage, storage areas, and other areas designed for a specific use shall be used for the purposes approved by the Board. The use, maintenance and operations of the Common Elements shall not be obstructed, damaged, or unreasonably interfered with [by] any Unit Owner, and shall be subject to any lease, concession, or easement, ..., affecting any part of or all of said Common Elements. Without limiting the generality of the foregoing provisions of this Paragraph XX, use of the Property by the Unit Owners shall be subject to such rules and regulations as shall be promulgated by the Board.

GPI also introduced into the record the deposition testimony of two RCCA employees and a Board member: Nayanka Nero, the property manager hired by RCCA; Harry Coulon, the head of maintenance at Riverside, hired by the RCCA; and David Castell, a Riverside resident and RCCA board member. According to each person’s deposition testimony, none of the Riverside units have an 1 ^independent hot water heating system, i.e., hot water heater. The hot water for all units is controlled and provided by one of two boilers, located within boiler rooms on either side of the Riverside property. Ms. Nero stated that only RCCA employees have keys to the boiler rooms and those rooms always remained locked. Mr. Coulon also stated that only RCCA employees have keys to the boiler rooms, that remain locked at all times; and he is responsible for conducting daily temperature checks of the boilers. Mr. Castell also confirmed that the boiler rooms remain locked and only RCCA employees have access to the boiler rooms.

“In determining direction or control over the premises and hence custody or garde,” this Court has looked to “whether a defendant possesses the ability to access the premises at will and whether a defendant has the ability to alter the premises.” Graubarth, 07-0416, pp. 5-6, 970 So.2d at 664; see Chaplain v. American Empire Surplus Lines Ins. Co., 98-1372 (La.App. 4 Cir. 3/31/99) 731 So.2d 973 (custody or garde is not shared or .transferred when there is limited ability to inspect the premises, limited access, and inability to alter premises); Mix v. Krewe of Petronius, 95-1793 (La.App. 4 Cir. 5/22/96), 675 So.2d 792 (no custody or garde where defendant lacked authority to make alterations).

Based on the evidence introduced in support of the motion for summary judgment, GPI has established it did not have direct access or control of the hot water system. The hot water for all units flows through one of two boilers serving all units at Riverside. The hot water system is part of the central services for all units to which the unit owners lack access, control, and operation. Accordingly, |nthe hot water system constitutes part of the common elements under the custody and garde of RCCA. Based on this showing, GPI has negated an essential element of plaintiffs claim of strict liability, i.e., GPI’s custody, garde or control of the defective thing— overheated water from the hot water system — posing an unreasonable risk of harm.

In opposition, plaintiff argues that she need not prove GPI’s custody over the defective thing because GPI’s liability arises directly out of its status as the owner and lessor of the unit. Plaintiff contends that regardless of the origin of the defect, GPI is strictly liable for a defect existing on the premises that presents an unreasonable risk of harm. Plaintiff bases this liability argument on the La. Civil Code articles governing the lessor’s warranties against vices and defects, i.e. La. C.C. arts. 2696, 2697, 2698, and 2699. Plaintiff contends the lease does not contain a valid waiver of the lessor’s warranty against vices or defects pursuant to La. R.S. 9:3221; but even a valid waiver is ineffective insofar as it purports to waive liability for a defect that seriously affects health and safety.

Pursuant to La. R.S. 9:3221, a contract for lease may provide for a waiver of liability whereby the lessee assumes responsibility for the condition of the leased premises and relieves the owner of liability for injury caused by any defect therein |lgto the lessee; unless the owner knew or should have known of the defect to the premises or had received notice thereof and failed to repair it within a reasonable time. See Lacinak v. Allstate Ins. Co., unpub. 06-1338, p. 3 (La.App. 4 Cir. 3/7/07), 2007 WL 7711283. A waiver of warranty is also ineffective “to the extent it purports to waive the warranty for vices or defects that seriously affect health and safety.” La. C.C. art. 2699.

Plaintiffs lease with GPI contains the following provision:

Lessee assumes responsibility for the condition of the premises. Lessor will not be responsible for damage caused by leaks in the roof, by bursting of pipes resulting from a freeze or otherwise, or any vices or defects of the leased property, or the consequences thereof, except in case of positive neglect or failure to take action toward remedy of such defects and the damage caused thereby. Should Lessee fail to promptly notify Lessor, in writing, of any such defects, Lessee will become responsible for any damage resulting to Lessor or other parties.

Plaintiff argues that this provision is ineffective under the circumstances of this case and does not extend to the particular defect at issue. Plaintiff asserts she could not assume responsibility for the condition of a thing not within her control, i.e., the temperature of the water delivered to her unit. She acknowledges the water was heated in a common area, outside of the premises of her unit; therefore, it was outside of her control and excluded from the above waiver. Second, plaintiff contends that the waiver of warranty is ineffective for the defect at issue — overheated water — because it seriously affects the health and safety of the lessee. Based on the lack of an effective waiver of warranty against vices and defects, plaintiff re-urges the argument that GPI is strictly liable, as a lessor, for the defect that caused her injuries.

11sThis Court has consistently held that a plaintiff must establish the owner or lessor had custody or control over the thing posing an unreasonable risk of harm in order to prevail on a claim of strict liability. See Flenner v. Sewerage and Water Bd. of New Orleans, 12-0829, pp. 3-4 (La.App. 4 Cir. 3/4/13), 110 So.3d 661, 664; Moody v. City of New Orleans, 99-0708, p. 48 (La. App. 4 Cir. 9/13/00), 769 So.2d 670, 672; Hebert v. St. Paul Fire and Marine Ins. Co., 99-0333, p. 4 (La.App. 4 Cir. 2/23/00), 757 So.2d 814, 816; Thumfart v. Lombard, 613 So.2d 286, 290 (La.App. 4th Cir.1993).

As previously discussed, GPI presented sufficient evidence to establish that it did not have access, responsibility, custody, or control of the hot water system flowing into plaintiffs unit. GPI presented factual support to establish that RCCA had contractually obligated itself to operate, maintain, repair and replace the common elements of Riverside; furthermore, RCCA had exclusive access and control over the thing — the hot water system — posing an unreasonable risk of harm. We further find that plaintiff has failed to produce any factual support sufficient to satisfy her evidentiary burden of proof at trial on the issue of GPI’s actual custody or control of the thing that posed an unreasonable risk of harm. Based on the evidence in the record on this motion for summary judgment, we find GPI is not strictly liable for plaintiffs injuries.

Negligence

In order to prevail on a claim of negligence, the plaintiff must prove that defendant knew or should have known of the defect at issue. See Jones v. Peyton Place, Inc., 95-0574, p. 7 (La.App. 4 Cir. 5/22/96), 675 So.2d 754, 761. If GPI knew or should have known of the vice or defect causing plaintiffs injuries, and GPI failed to remedy it, then GPI would be liable in negligence. La. R.S. 9:3221; see Ford v. Bienvenu, 00-2876, p. 9 (La.App. 4 Cir. 8/29/01), 804 So.2d 64, 70.

It is well-established under Louisiana law,

[t]he owner of immovable property has a duty to keep the property in a reasonably safe condition and must discover any unreasonably dangerous condition or warn potential victims of its existence. The plaintiff must prove the owner knew or should have known of the risk. The property owner is not the insurer of the premises, but must act reasonably in view of the probability of injury.

Wiggins v. Ledet, 94-0485, p. 6 (La.App. 4 Cir. 9/29/94), 648 So.2d 797, 801 (citations omitted). “The mere existence of a hazard does not create liability for negligence; instead, it must be shown that the condition was present long enough for the defendant to discover and remedy the problem.” Jones, 95-0574, p. 2, 675 So.2d at 759 (citing DeGruy v. Orleans Parish School Bd., 573 So.2d 1188, 1192 (La.App. 4 Cir.1991)).

Plaintiff contends that GPI owed several duties relating to the hot water system: to inspect and maintain a reasonably safe hot water system for the unit; to discover any unreasonably dangerous condition; and to warn plaintiff of any potentially unsafe condition. Plaintiff, however, has not offered any evidence of how long the unreasonably dangerous condition was present; or evidence that defendant could have discovered the condition; or evidence that defendant had the opportunity to remedy the defective condition. See Jones, 95-0574, pp. 4-5, 675 So.2d at 760; Brisbon v. Rhodes Funeral Home, Inc., 00-1269, p. 11 (La.App. 4 Cir. 12/12/01), 814 So.2d 584, 549.

|1fiIn Wiggins, plaintiff alleged that defendant was liable in negligence for allowing a dangerous condition to exist on defendant’s property that resulted in the electrocution and death of plaintiffs son by a live wire from a major transformer on defendant’s property. The decedent had gone onto defendant’s property and gained entrance to an abandoned building and a vault wherein he was electrocuted by a wire from a transformer. Defendant, the owner of the property, introduced evidence of an agreement between the previous owner and NOPSI (New Orleans Public Service, Inc.) that the vault was owned by the property owner but the transformer and all equipment within the vault were owned, maintained, and operated by NOPSI; and NOPSI had exclusive use, control, and access to the vault. Defendant also introduced deposition testimony that NOPSI had exclusive possession, access to, and control of the contents of the vault. This witness testified that decedent had apparently gained entry through a vault door that was broken open; he also testified that the door was intact three or four weeks prior to the incident. Finding that the plaintiff had failed to offer any evidence to refute the evidence in support of defendant’s motion for summary judgment, this Court found the property owner owed no duty to maintain the vault in a safe condition; the uncontroverted testimony established that NOPSI had exclusive access to the vault and control of its contents that caused decedent’s electrocution. Wiggins, p. 94-0485, p. 8, 643 So.2d at 802. Consequently, this Court found the property owner/defendant not liable for negligence.

In this case, we find GPI has carried its burden of proof to negate plaintiffs claim of negligence. GPI introduced factual support that it had no custody, control, access or use of the boiler rooms supplying the hot water for all units at Riverside. GPI also introduced excerpts of deposition testimony of plaintiff and 11fiher son to establish that plaintiff had not previously reported any problem or defect to GPI or RCCA relating to the hot water from her faucets. Plaintiffs son testified that he had noticed, on occasions prior to his mother’s incident, the hot water could be quite hot and steaming; but he was able to adjust both cold and hot water as needed. He stated that he had no knowledge, of a problem or any injury from the hot water temperature prior to his mother’s incident. Furthermore, on the night before the incident, he had taken a shower in the unit and did not experience any problems with the hot water temperature. GPI also offered uncontroverted deposition testimony and affidavits from the head of maintenance at Riverside and the property manager who stated that they had not received any other complaints, either previous to the incident or on the same date, about the hot water temperature. Based on this evidence, we find GPI has negated essential aspects of plaintiffs claim of negligence.

In opposition, plaintiff has failed to show that any genuine issue of material fact remains on the issue of negligence. Plaintiff offered further excerpts of plaintiffs deposition testimony describing the incident and her injuries. These excerpts, however, also contain plaintiffs testimony that she had not previously reported any problem with the hot water to GPI. Plaintiff introduced the log of daily temperatures from the boiler rooms, as recorded by an employee of RCCA. This evidence, however, does not establish GPI’s knowledge of the temperatures in the boiler rooms or the existence of a defect in the hot water system of which GPI had or should have had knowledge. Plaintiff has failed to provide factual support sufficient to support its claim of GPI’s negligence.

From the evidence in the record on this motion for summary judgment, we find no evidence that GPI knew or should have known of any problem or defect 117relating to the hot water temperature in plaintiffs unit. There is no genuine issue of material fact and we find GPI is not liable for negligence as a matter of law.

Liability Insurance

In her third assignment of error, plaintiff relies on the provision within the Louisiana Condominium Act requiring the condominium association to carry insurance coverage in which each unit owner is an insured person under the policy with respect to liability arising out of his ownership interest in the common elements or membership in the association. La. R.S. 9:1123.112(0(1). Plaintiff argues that that provision within the statute indicates the Louisiana Legislature contemplated that individual unit owners would be allocated responsibility for injuries arising out of the common elements of a condominium.

Relying on Blackwell v. Hanover Ins. Co., 551 So.2d 47 (La.App. 1 Cir.1989), plaintiff argues that the unit owner cannot escape liability due to the fact the condominium association has the responsibility to manage, maintain, and repair condominium property. In Blackwell, the plaintiff was injured when he slipped on a step leading down from a patio that adjoined an individually owned unit. The condominium association alleged it did not have use, custody or control of the defective condition — the step — because it was within a limited use area and constituted a limited common element; as such, the association did not have the responsibility to maintain it and could not be liable for the resulting injury. The First Circuit found, “[e]ven though the question of control over the limited common elements is ambiguous, it is still clear that, by definition, limited common elements are part of the common elements, and any liability which arises as a result of the limited common elements should be an insured risk.” Id., 551 So.2d at 50. 11sUnder the facts of the case, the court held that both the unit owner and association had responsibility for the area and elements involved in plaintiffs injury.

We find this case distinguishable from Blackwell, in which the plaintiff was injured in a “limited use area” involving limited common elements that are in the custody and control of both individual unit owners and the association. In this case, the defective thing is a common element exclusively used and controlled by RCCA. Under the facts of this case, GPI has no access, use, control, or custody of the hot water system.

Plaintiff has not provided any further support for her interpretation that La. R.S. 9:1123.112 contemplates the liability of an individual unit owner under the circumstances of this case. Under the statute, the RCCA is obligated to carry insurance coverage for claims arising out of the common elements. The fact that the insurance coverage includes each individual unit owner as an additional insured does not create legal liability for each individual unit owner for any claim arising out of the common elements. Plaintiff must still prove the liability of the individual unit owner for a particular claim relating to the common elements or membership in the association. Here, plaintiff has failed to produce any factual support to establish that she can carry her burden of proof at trial with respect to GPI’s liability. Thus, we find no merit to plaintiffs argument.

Incomplete Discovery

In her final assignment of error, plaintiff argues that the trial court erred in granting summary judgment because key discovery is incomplete. Plaintiff states |igthat she has been unable to secure the deposition testimony of Emile Mattox, a former employee of RCCA, “who may have interacted with the boiler in ways that have direct bearing on the relative liabilities in this case.”

A motion for summary judgment shall be granted only after adequate time for discovery. See La. C.C.P. art. 966(C)(1); Doe v. ABC Corp., 00-1905, p. 11 (La.App. 4 Cir. 6/27/01), 790 So.2d 136, 143. Louisiana jurisprudence holds that parties must be given a fair opportunity to carry out discovery but there is no requirement that summary judgment be delayed until discovery is complete. Thomas v. North 40 Land Development, Inc., 04-0610, p. 31 (La.App. 4 Cir. 1/6/05), 894 So.2d 1160, 1179. As the Louisiana Supreme Court stated, “[t]he only requirement is that the parties be given a fair opportunity to present their claim. Unless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact.” Simoneaux v. E.I. du Pont de Nemours and Co., 483 So.2d 908, 913 (La.1986).

Applying these precepts, we find no evidence showing that plaintiff has not been afforded a fair opportunity to carry out discovery and present her claim. Plaintiff filed suit in July, 2011; GPI filed its motion for summary judgment in October, 2012; the trial court hearing on the motion for summary judgment was held on September 20, 2018. The record also reflects that Mr. Mattox was scheduled to appear for deposition on February 22, 2013, but he did not appear. There is no further indication of plaintiffs efforts to secure the deposition testimony of Mr. Mattox. Furthermore, plaintiff has offered no argument that Mr. | ¡¡pMattox’s testimony would establish factual support for the claims of liability against GPI.

We find no basis to support plaintiffs contention that adequate discovery was incomplete. Thus, we find no merit in this assignment of error.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment granting GPI’s motion for summary judgment and dismissing all claims asserted against GPI.

AFFIRMED

      . RCCA's liability insurer.

      . According to the petition, Saia Plumbing Company serviced or maintained the hot water system for Riverside units, including unit 381.

      . The formal Declaration creating and establishing the Riverside condominium regime was filed for registry on February 28, 1984, in the Office of the Clerk for Jefferson Parish, pursuant to La. R.S. 9:1122.101.

      . A lessor warrants a lessee that the leased thing is suitable for the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose. La. C.C. art. 2696. This warranty extends to vices or defects that are not known to the lessor and to those arising after the delivery of the leased thing, but are not attributable to the fault of the lessee. La. C.C. arts. 2696, 2697. Furthermore, the lessee is obligated to notify the lessor of any vices or defects known to the lessee or else have any recovery for breach of warranty reduced for failure to notify. La. C.C. art. 2697. These lessor’s warranties may be waived by the lessee within the lease. See La. C.C. art. 2699.

      . Although not designated as an assignment of error, plaintiff asserts that GPI's liability arises out of the Louisiana Plumbing Code, which sets forth specific safety provisions with respect to temperature control in showers and baths. See La. Admin. Code Title 51, XIV § 301. However, the Plumbing Code provisions referenced by plaintiff were not effective until January 1, 2013, twenty-eight years after Riverside was established and more than two years after plaintiff's incident. Thus, we find the Plumbing Code provisions are inapplicable to the facts of this case.


author: LOLLEY, J.

text:
    Mark Kenneth MANNO, Plaintiff-Appellee v. Molly Creech MANNO, Defendant-Appellant.
    No. 49,533-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Richard Lynn Ducote, Metairie, for Appellant.
    Randall R. Robinson, Bossier City, for Appellee.
    Before DREW, LOLLEY and PITMAN, JJ.
   LOLLEY, J.

Lin this child custody proceeding, Molly Creech Manno appeals a judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, awarding her and her former spouse, Mark Kenneth Manno, joint custody of their minor child and designating her as the domiciliary parent. More specifically, Molly appeals the trial court’s decision to exclude evidence, including allegations of sexual abuse which allegedly occurred before the parties entered into a consent judgment on November 27, 2007. For the following reasons, we affirm the trial court’s judgment.

Facts

Mark Kenneth Manno and Molly Creech Manno were married on May 13, 2000, in Shreveport, Louisiana. One child was born of the marriage, A.W.M., a son, born on November 22, 2002. Litigation between Mark and Molly began on August 9, 2006, when Molly sought a protective order with the Caddo Parish Juvenile Court alleging that Mark sexually abused A.W.M., who was three years old at the time. A protective order was issued against Mark based solely on the allegations, and Dr. John Simoneaux, a forensic psychologist, was appointed by the court to conduct mental health and custody evaluations of all parties involved. The court also appointed an attorney for the child pursuant to La. R.S. 9:345. However, despite the allegations against Mark, Molly filed a motion to dissolve the protective order on January 18, 2007, and a contradictory hearing was held wherein Molly was questioned by the juvenile court regarding the alleged sexual abuse of A.W.M. Based upon that questioning, the juvenile court dismissed the proceedings against Mark, found the |2dismissal to be free, voluntary, and without coercion, and deferred all future issues to the First Judicial District Court, where Mark had initiated divorce proceedings against Molly.

Incidental to divorce, Mark and Molly appeared before the trial court on November 27, 2007, and on that date entered into a consent judgment granting joint custody of A.W.M. to both parties, with Molly being named the domiciliary parent (the “consent judgment”). Mark was awarded visitation, and both parties, along with their attorneys and the child’s attorney, signed an eight-page joint custody implementation plan (“JCIP”) setting forth the particulars of visitation and each party’s obligations moving forward.

Custody was exercised pursuant to the consent judgment and JCIP until January 13, 2011, when Molly filed an ex parte motion for supervised visitation requesting that Mark’s visitation be limited to supervised visitation only. Acting on the advice of her attorney, Molly took A.W.M. to Utah to see Dr. David Corwin, a psychologist who specializes in child sex abuse. Following an interview and examination of A.W.M., Dr. Corwin issued a report stating that in his professional opinion, A.W.M. was experiencing psychological and emotional trauma. Relying on this report, Molly filed the motion for supervised visitation asserting that A.W.M.’s psychological and emotional trauma stems from Mark sexually abusing A.W.M.

In response to Molly’s motion,- Mark filed exceptions of res judicata, no cause of action, and/or failure to state a material change of 1 ¡¡circumstances. Mark also requested that the court reappoint Dr. Simo-neaux, and that both parties reconvene to again determine custody of A.W.M. Because of Molly’s objection to the reappointment of Dr. Simoneaux, a hearing was held, wherein the trial court maintained the appointment of Dr. Simoneaux and requested that he compile a second report to advise the court regarding any issues that affect the custody and best interest of A.W.M. The trial court denied Molly’s request for supervised visitation and deferred Mark’s exceptions to trial on the merits. Additionally, the trial court informed the parties that the heightened Bergeron standard would not apply, and noted that either party must show a material change in circumstances after the consent judgment; therefore, evidence prior to November 27, 2007, would not be admissible absent a compelling reason demonstrated at trial.

In accordance with the trial court’s order, the parties and A.W.M. were reevaluated by Dr. Simoneaux, and a trial date was scheduled. When the parties appeared in court for trial, Molly made clear that she intended to offer evidence regarding certain incidents which allegedly occurred prior to November 27, 2007. Further, Molly made the assertion that she had been coerced into dismissing the abuse charges against Mark and signing the consent judgment. After hearing Molly’s arguments, the trial court reaffirmed its previous position that evidence prior to the consent judgment would not be admissible, and stayed the proceedings to allow Molly to apply for a supervisory writ, which this court denied due to Molly having an adequate remedy on appeal.

|4The matter was eventually set for trial on February 18, 2014. However, while the matter was pending, Molly filed an amended motion for supervised visitation, alleging that Mark sent lewd, inappropriate photos to A.W.M.’s cell phone. An emergency hearing was held wherein Mark admitted to taking the photos, but stated that he meant to share them with a woman he was dating at the time. Mark explained to the trial court that A.W.M. had a deactivated cell phone but had access to Mark’s iTunes account, which included access to “Photoshare” where the photos were stored. Although he immediately deleted the photos after he took them, Mark claimed that they were inadvertently transferred to AW.M.’s cell phone via the “Photoshare” application. Nevertheless, the trial court agreed with Molly and restricted Mark to supervised visitation until trial.

Trial was held over a three-day period. At the onset, the trial court had the parties clarify the remedies sought regarding a modification of custody. Molly requested sole custody of A.W.M. as well as relief under the Post-Separation Family Violence Relief Act, which requires supervised visitation. On his cross rule for a change in custody, Mark sought joint custody with himself being named the domiciliary parent.

Almost immediately, it became apparent that much of Molly’s argument at trial was going to be centered around the sexual abuse allegations which allegedly occurred prior to November 27, 2007. As a result and before proceeding any further, the trial court once again reminded the parties that it was going to exclude any evidence of events prior to that date.

|fiMolly’s testimony was broken up over the three days of trial due to the availability of certain experts and witnesses. Molly first testified to the problems involving A.W.M. and visitation with Mark shortly after the parties entered the consent judgment. Molly explained that A.W.M.’s stuttering problem became considerably worse after November 27, 2007, and that his stuttering seemed to correlate with visitations with his father. Molly also testified that around this time, A.W.M. was very hesitant about visiting Mark, and would often cry and call home asking her to come and get him. Molly stated that it was a common occurrence for A.W.M. not to spend the entire visitation period with Mark due to A.W.M. becoming upset and .wanting to return home. However, she noted that these situations have improved as A.W.M. has grown older.

Mark was also questioned about his relationship with A.W.M. following November 27, 2007. Mark explained that it was very “rocky” during the first few years, and he experienced quite a few problems with A.W.M. wanting to spend the entire visitation period with him. He testified that sometimes A.W.M. would stay the whole weekend, sometimes he would stay one night, or sometimes he would not stay either night. However, Mark stated that these issues began to subside after a meeting in 2008, when he, A.W.M., and Molly went to see Dr. Bruce McCormick, who recommended Mark be more forceful with A.W.M. As to A.W.M.’s stuttering, Mark noted that A.W.M. did have a stuttering problem, but the overall trend was that it had significantly improved over the years. He also [ ^stated that because he stuttered as a child, he was not extremely concerned about it.

Mark further testified that beginning in 2009, he and A.W.M. started to take out-of-town trips together during the summer months, including trips to Disney World, Washington, D.C., Pennsylvania, New Orleans, Dallas, and the Grand Canyon. They also made smaller trips like football games and camping. Mark stated that at no time during those trips, or recently, was there a problem with A.W.M., and. that they enjoy spending time with each other.

Barbara Manno, Mark’s mother, testified that she was present -with her son and A.W.M. on two of the out-of-town trips, and that during those trips A.W.M. and Mark got along great.

Dr. Robert Critcher, a speech and language pathologist, testified that he examined A.W.M. beginning in August of 2009, for the purpose of determining whether he was suffering from a stuttering disorder. Dr. Critcher stated that upon examination, he diagnosed A.W.M. with a moderate to severe stuttering problem. Dr. Critcher then stated that Molly asked him to observe A.W.M.’s stuttering problems prior to interacting with Mark and then contrast that with his speech following the visit, Dr. Critcher testified that after witnessing several visits, A.W.M. stuttered more after seeing his father than before, but on the last visit, A.W.M.’s stuttering was actually better following his visit with Mark. Molly’s father, John Creech, testified that shortly after the parties entered into the consent judgment, A.W.M. was standoffish and seemed rather stressed. He also 17stated that A.W.M. had a tendency to stutter and the stuttering seemed to be more prevalent before and after visits with Mark. However, Creech noted that A.W.M.’s stuttering has improved over time.

Sister Cristina Angelini, a teacher at the E. Renzi School in Shreveport where A.W.M. attended preschool, was called to testify about an occasion which occurred in December 2007. She testified to observing A.W.M. screaming, crying and pulling away from Mark when he came to pick up A.W.M. from school. Although she remembered the screaming and crying, Sister Angelini stated that Mark did nothing inappropriate. She also stated that before the protective order was in place in 2006, both Mark and Molly were involved in A.W.M.’s life.

Molly then testified as to the lewd photo that was found on A.W.M.’s cell phone. Molly explained that she and A.W.M. were going through A.W.M.’s cell phone together and found the lewd photo and another inappropriate photo of a man standing on top of a bar. Molly stated that she never contacted Mark to discuss the inappropriate photos, but did admit that she had no evidence that these photos were sent to A.W.M.’s cell phone intentionally.

Mark admitted to taking the photos, but did not know A.W.M. viewed them until he was served with Molly’s motion for supervised visitation. Mark stated that he meant to share the lewd photos with his girlfriend at the time, which was confirmed through this woman’s later testimony, Mark also stated that although he immediately deleted the photos after he took them, they were automatically sent to A.W.M.’s cell phone via the “cloud” Ubeeause A.W.M. had access to his iTunes account for games and downloading music. Mark conceded that it was very poor judgment on his part to take the photos in the first place, but testified that he never meant them to be viewed by A.W.M.

Barbara Thorne-Thomsen was accepted as an expert in professional counseling and testified that, she began to see A.W.M. in 2008 for “play therapy,” and she has seen him approximately 48 times since. She informed the court that she and A.W.M. have a good relationship and that A.W.M. is very open during their counseling sessions. She testified that AW.M.’s relationship with Mark was very poor at the beginning, but has improved over time.

Thorne-Thomsen was then asked about the alleged abuse and whether A.W.M. reported any incidents to her while in counseling sessions. Because her testimony described events occurring prior to November 27, 2007, the trial court limited her testimony to after that date. Thorne-Thomsen also noted that A.W.M. reported abuse to her in 2010 at a meeting in which Molly’s counsel was present. Ultimately, it was clarified on cross examination that the child had only claimed that Mark “did stuff’ to him when he was young, and it was only at this meeting with Molly’s counsel that A.W.M. went into detail about the alleged sexual abuse.

Jennifer Flippo, a forensic interviewer at Gingerbread House testified that she interviewed A.W.M. in 2006, 2007, and 2011, all in relation to the sex abuse allegations against Mark. Flippo stated that she turned over her findings to law enforcement, but was not aware if Mark was ever | nprosecuted. Flippo’s testimony was limited in scope due to the trial court informing her that she could not describe anything that occurred prior to November 27, 2007, but she did note that it did not appear that A.W.M. was coached in any way.

Detective John Flores, a sex crimes investigator with the Shreveport Police Department, testified that he was assigned to investigate the allegations against Mark. He stated that pursuant to his investigation, he sent A.W.M. to Gingerbread House to be interviewed. Detective Flores noted that although he was not present in the room with A.W.M.' and Flip-po during their interview, he listened from an adjacent room. Detective Flores then explained that at the conclusion of his investigation he turned over the file to the district attorney’s office, but that Mark was not prosecuted.

Detective Flores was also questioned about the lewd photo that appeared on A.W.M.’s cell phone. Detective Flores testified that his understanding of the situation was that the photo was not sent to A.W.M. purposefully, but was in the “cloud” and accessible from A.W.M.’s cell phone. Detective Flores stated that the photo and information provided to him was sent to the district attorney’s office, but no charges were brought.

Molly’s expert, Dr. David Corwin, was accepted as an expert in child psychology, psychiatry, and forensic psychiatry, and testified that he saw A.W.M. in April 2010, when Molly brought him to Utah for an assessment. Dr. Corwin informed the court that he conducted interviews of both Molly and A.W.M., and prepared a written report detailing his findings. However, this report was rejected by the trial court because a majority of Dr. Corwin’s | ^opinions were based on evidence of events occurring prior to November 27, 2007.

Dr. Corwin opined it was impossible to determine the child’s best interest relative to contact with Mark without taking into consideration all of A.W.M.’s history, including the events prior to November 27, 2007. Dr. Corwin could not testify as to custody arrangements in this matter as he did not conduct a custody evaluation or meet with Mark.

Dr. Bruce McCormick testified that he began to see A.W.M. in 2006, and he treated the child until 2008. Dr. McCormick informed the court that his initial goal was to assist the parties as they began to exercise custody pursuant to the consent judgment and JCIP. He also helped the parties make custody exchanges and gave recommendations to them in helping A.W.M. cope with the separation.

Despite the photo found on A.W.M.’s cell phone and the allegations of abuse against Mark, Dr. McCormick stated that he has never feared for the child’s safety and well-being while with Mark. When asked why he stopped seeing A.W.M., Dr. McCormick explained that Molly developed an accusatory tone toward him, and he believed that she grew angry with him because he would not validate the abuse allegations.

Dr. Webb Sentell, a medical neuropsy-chologist, testified that he examined Molly at the request of Dr. McCormick to determine whether Molly was delusional or suffering from a delusional disorder. Dr. Sentell concluded that she was not delusional or psychiatric in any way, but was extremely stressed and tired.

In As the trial court’s expert, Dr. Simo-neaux was present throughout the entire trial. He presented testimony based on his recommendation, which was shared or equal custody with Molly remaining the domiciliary parent. Dr. Simoneaux stated that many of the La. C.C. art. 134 factors weighed in favor of Molly. He noted that Molly has been the primary caregiver throughout most of A.W.M.’s life and has provided a reasonably stable and satisfactory environment. Additionally, Molly has been stable in.her own job and her own living situation and has made generally appropriate medical and educational decisions while caring for A.W.M.

In regards to Mark and A.W.M.’s relationship, Dr. Simoneaux stated that their relationship has improved over the years, and over time, it was clear that they had a “budding” father/son relationship. Dr. Si-moneaux testified that if it were not for this conflict, they would appear to have a normal father/son relationship with typical activities.

The trial court questioned Dr. Simo-neaux regarding his recommendation of shared custody. Dr. Simoneaux noted research that the child’s best interest is served when he has access to both parents, and this is true even when one of the parents has problems. When asked about the possible sexual abuse allegations, Dr. Simoneaux testified that it seemed very clear that Molly had put ideas into A.W.M.’s head and that Molly was absolutely insistent in these allegations being the truth. He explained that he was very concerned how Molly asked the questions to A.W.M. in such a leading and influential manner. Notably, Dr. Simoneaux stated that he believed, with certainty, that A.W.M.’s reports of anything that took place [i2between him and his father have been distorted and confounded by the way Molly and her mother have spoken to the child, and he believed early on that A.W.M.’s testimony was tainted.

A.W.M. testified in chambers. At the time, he was 11 years old. A.W.M. stated that- he was scared of Mark when he was little because Mark “did stuff’ to him. When asked if he knew why he was coming to court, A.W.M. responded it was because of things that happened to him when he was little. A.W.M. also testified that he loved both of his parents and enjoyed spending time with them. A.W.M. further stated that he was not afraid of either parent. Following its discussion with A.W.M., the trial court found the child to be very bright, but because the child obviously knew why he was coming to court, it thought A.W.M. seemed “programmed.”

At the conclusion of all of the testimony and prior to rendering a decision, the trial court expressed again reasons for excluding evidence of the sexual abuse allegations, reiterating that prior to the parties entering into a consent judgment, there were allegations of sexual abuse against Mark. It noted that there was a protective order filed, and an investigation took place, resulting in no charges against Mark. Moreover, the trial court stressed the fact that at the time the parties entered into the consent judgment, both Mark and Molly were represented by two well-respected and competent attorneys, and both parties knowingly entered into a consent decree awarding joint custody, with Molly being named the domiciliary parent. Therefore, the trial court explained its refusal to revisit the sexual abuse allegations that allegedly occurred before the parties entered into the consent judgment.

| iaIn the end, the trial court awarded the parties joint custody of A.W.M. Molly was named domiciliary parent, and Mark was awarded unsupervised visitation every other weekend from Friday afternoon to Sunday afternoon, with every other Wednesday evening. During the summer, the court ordered alternating weeks, with a two-week block for each parent’s vacation time. As a result of the inappropriate photos found on A.W.M.’s cell phone, the trial court required Mark to undergo evaluation by a psychologist and to follow any treatment recommendations. It is from this judgment that Molly appeals. Mark answered the appeal, requesting an award of equal or shared custody instead of joint custody.

Discussion

On appeal, Molly contends that the trial court abused its discretion in excluding evidence of events which allegedly occurred prior to the consent judgment. In particular, she argues now that the child is several years older and has continued to exhibit additional emotional and behavioral evidence of trauma and abuse, all of A.W.M.’s fears, problematic behaviors, stuttering, and emotional problems can be understood by only including the child’s entire history, which includes the history of sexual which allegedly occurred prior to November 27, 2007. We disagree.

It is well settled that the paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 1997-0541 (La.02/06/98), 708 So.2d 731. In cases where the original custody decree is a stipulated judgment and the rule of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), is inapplicable, the party 114seeking modification must prove: (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Evans, supra; Hobbs v. Hobbs, 42,353 (La.App.2d Cir.08/15/07), 962 So.2d 1148.

In determining the best interest of the child, the court must consider all relevant factors. La. C.C. art. 134; Walker v. Walker, 38,982 (La.App.2d Cir.08/18/04), 880 So.2d 956. Each case must be determined on the basis of particular facts and circumstances by weighing and balancing those factors favoring and opposing custody for the respective parents. Walker, supra. However, the trial court is not required to provide a literal articulation of each of the factors of La. C.C. art. 134 in reaching its conclusion regarding the best interest of the children, nor is the trial court required to specifically explain its weighing and balancing of the article 134 factors. Chandler v. Chandler, 48,891 (La.App.2d Cir.12/13/13), 132 So.3d 413.

It is also well settled that courts have inherent power to determine a child’s best interest and to tailor a custody order that minimizes the risk of harm to the child. Bergeron, supra; Chandler, supra. The trial court has vast discretion in deciding matters of child custody and visitation. Chandler, supra. This discretion is based on the trial court’s opportunity to-better evaluate the credibility of the witnesses. Id. Thus, the trial court’s findings in child custody matters will not be disturbed on review absent a clear showing of an abuse of discretion. Id.

[^Further, whether evidence is relevant or not is also within the discretion of the trial court. Crowson v. Crowson, 32,314 (La.App.2d Cir.09/22/99), 742 So.2d 107. Evidence of incidents prior to the entry of a stipulated judgment may not be relevant to prove a change in circumstances but may nevertheless remain relevant on the issue of best interest of the child. Id. The trial court should not exclude evidence in a custody modification proceeding if that evidence is relevant and material to an issue which the parties have not previously had a full and fair opportunity to litigate. Id.

Here, because the original custody decree was a stipulated or consent judgment, the trial court held that in order to modify the prior custody arrangement, either party must show a material change in circumstances after the consent judgment, and therefore, evidence prior to November 27, 2007, would not be admissible absent a compelling reason at trial. After a complete and thorough review of the record, we find no abuse of discretion in this decision.

As pointed out by the trial court before, during, and even after trial, the parties, together with counsel, appeared on November 27, 2007, and entered into a consent judgment granting joint custody of A.W.M. to both parties. Molly was named as the domiciliary parent and Mark was awarded unsupervised visitation. This voluntary decision by Mark and Molly to enter into a joint custody arrangement occurred shortly after Molly dismissed sexual abuse charges against Mark in juvenile court. It is clear | lfithat at that time all of the facts and allegations of abuse were known to each party as well as each party’s attorney. In fact, as pointed out by the trial court, an investigation took place, interviews were conducted, but no charges were ever bought against Mark.

Now, approximately seven years after the parties entered into the consent judgment, Molly is attempting to revisit the sexual abuse allegations that she previously dismissed against Mark. Despite having a full and fair opportunity to litigate and pursue sexual abuse charges against Mark in 2006, Molly, through her attorney, continuously attempted to pry testimony out of witnesses about events which allegedly occurred prior to November 27, 2007. However, it was obvious that there were no new sexual abuse allegations, and this became even more apparent after the trial court limited the scope of each witnesses’s testimony to events occurring after November 27, 2007.

Other than A.W.M. saying that Mark “did stuff’ to him when he was little, evidence adduced from trial reveals that he is quite comfortable with his father now, and has been for years. Mark and A.W.M. have taken numerous trips together with-' out incident, and A.W.M. specifically stated that he enjoys spending time with his father. Here, the trial court was in the best position to ascertain the evidence presented and evaluate the credibility of the witnesses. Accordingly, based on the trial court’s vast discretion, Molly’s argument that the trial court erred in excluding evidence of events which allegedly occurred prior to the parties entering into a consent judgment is without merit.

| ,7We also reject Molly’s contention that the trial court erred in excluding evidence that she was coerced into dismissing the abuse allegations against Mark as well as signing the consent judgment. A review of the record shows that on July 2, 2013, Molly, for the first time, made the assertion that she was coerced into signing the consent judgment and ultimately dismissing the abuse allegation against Mark. Molly contends that she agreed to joint custody with Mark only because she believed that based on Dr. Simoneaux’s original report performed in 2006, she would lose custody of A.W.M. if she did not stop claiming that Mark sexually abused A.W.M.

Louisiana C.C.P. art. 2004 provides that a judgment can be annulled if it was obtained by fraud or ill practice. A claim pursuant to this article must be brought within one year of discovery of the fraud or ill practice, and that period is peremptive. Smith v. Smith, 47,376 (La. App.2d Cir.08/22/12), 104 So.3d 512. Duress can also be pled as an affirmative defense. La. C.C.P: art. 1005.

Here, the record is clear that Molly made no attempt to set aside the consent judgment. She also did not raise any issues regarding duress or ill practice after she filed to dissolve the protective order issued against Mark in juvenile court. As noted above, following the dismissal of the protective order, the juvenile court held a contradictory hearing wherein Molly was questioned by the juvenile court regarding the alleged sexual abuse of A.W.M. In dismissing the proceedings against Mark, the juvenile court specifically found the dismissal to be free and voluntary and without |1scoercion. Molly, together with her attorney, had ample opportunity to attack the validity of the consent judgment, and they did not do so. Accordingly, this assignment of error is equally without merit.

Mark’s Answer to- the Appeal

As a final matter, we address Mark’s answer to this appeal and his assertion that the trial court erred in awarding joint custody of A.W.M. to both parties instead of equal or shared custody as recommended by Dr. Simoneaux.

It is well settled in Louisiana that the trial court is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. Green v. K-Mart Corp., 2003-2495 (La.05/25/04), 874 So.2d 838; Smith v. Smith, 44,663 (La.App.2d Cir.08/19/09), 16 So.3d 643. A trial court may accept or reject in whole or in part the opinion expressed by an expert. Id. Further, a trial judge may substitute his/her own common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole. Id.

Here, in awarding joint custody to both parties, it is clear that the trial court relied heavily on the fact that the child had been living with his mother since the original consent judgment. Although the trial court did not adhere to Dr. Simoneaux’s recommendation of equal or shared custody, the record reveals that the trial court did in fact explore this recommendation as an option as evidenced by the repeated questioning of Dr. Simoneaux during his testimony. It is apparent that the trial court weighed all options ]19before it and made a decision based on its consideration of the evidence. Accordingly, we cannot say that the trial court abused its discretion in tailoring a custody arrangement in a manner which the trial court considered to be in the child’s best interest.

Conclusion

Having found no abuse of discretion, we affirm the trial court’s judgment awarding joint custody to Molly Creech Manno and Mark Kenneth Manno. Further, Mark’s answer to this appeal is denied. All costs of this appeal are to be shared equally by both parties.

AFFIRMED.