text:
    Robert C. NAVARRE v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, OFFICE OF MOTOR VEHICLES.
    No. 13-949.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Jennifer Del Murray, Stephen A. Quidd, Baton Rouge, Louisiana, for Appellant, Department of Public Safety and Corrections, Office of Motor Vehicles.
    Glen D. Vamvoras, Vamvoras, Schwartz-berg & Hinch, Lake Charles, Louisiana, for Plaintiff/Appellee, Robert C. Navarre.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

| The Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles (OMV), appeals the judgment of the trial court ordering it to reinstate Robert C. Navarre’s Class A commercial driver’s license (CDL). For the following reasons, we reverse the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Navarre was arrested by Calcasieu Parish Sheriffs Deputy J.W. Childress on April 17, 2011, for violating La.R.S. 14:98, operating a vehicle while intoxicated, and La.R.S. 82:51, no license plate. Deputy Childress stopped Mr. Navarre on Louisiana Highway 27 in Calcasieu Parish after he noticed Mr. Navarre’s vehicle did not have a license plate. Mr. Navarre had the odor of alcohol on his breath, slurred speech, was . unsteady on his feet, and admitted to consuming beers before driving. Mr. Navarre consented to a field sobriety test, but withdrew his cooperation after completing only a third of the test. Mr. Navarre was then arrested by Deputy Childress. Mr. Navarre was asked to submit to an alcohol concentration test, but he refused.

As a result of Mr. Navarre’s refusal to submit to the alcohol concentration test, OMV suspended his Class E personal driver’s license for one year pursuant to La. R.S. 32:667(A) and disqualified him from driving a commercial motor vehicle | ¡Jor one year pursuant to La.R.S. 32:414.2 and 49 C.F.R. § 383.51. Mr. Navarre requested an administrative hearing in accordance with La.R.S. 32:668(A) to contest the suspension of his driver’s license. The suspension was affirmed by the administrative law judge (ALJ) on September 28, 2011.

On November 2, 2011, Mr. Navarre filed a Petition for Judicial Review and Voluntary Stay in the Fourteenth Judicial District Court. Prior to the trial on Mr. Navarre’s petition, the charges of operating a vehicle while intoxicated and no license plate against Mr. Navarre were dismissed on December 5, 2012. At the trial on Mr. Navarre’s petition, the parties entered into a joint stipulation of facts and exhibits and agreed to submit the matter to the trial court on briefs. In its March 28, 2013 Written Reasons, the trial court opined:

13[Louisiana Revised Statutes] 32:414.2(A)(4)(ii)(d)[] requires there be an “offense” of refusal to submit. [Mr. Navarre] has not been adjudicated of any offense in this matter since his charges were dismissed.
Brooks [v. Louisiana Department of Public Safety & Corrections], 46,654 [2011-71] (La.App. 3 Cir. 6/1/11), 66 So.3d 1236, ... supports [Mr. Navarre’s] position that a conviction is required before [OMV] can revoke a license under the applicable statutes.

Accordingly, the trial court ordered that Mr. Navarre’s driving privileges be reinstated. OMV appeals.

ASSIGNMENTS OF ERROR

OMV sets forth the following assignments of error:

1. The State of Louisiana, Department of Public Safety and Corrections, Office of Motor Vehicles[,] alleges as error the trial court’s finding that the dismissal of criminal charges for violation of La.R.S. 14:98 negates the mandatory disqualification of commercial driving privileges under the provisions of La.R.S. 32:414.2 and 49 C.F.R. § 383.51.
2. The State of Louisiana, Department of Public Safety and Corrections, Office of Motor Vehicles[,] alleges as error the trial court’s entry of an order to reinstate the commercial driving privileges of Mr. Robert Navarre, in violation of Louisiana state law and federal regulations.

LAW AND DISCUSSION

OMV contends that the trial court erred in ordering the reinstatement of Mr. Navarre’s commercial driving privileges. OMV argues that the statutory language in La.R.S. 32:414.2 clearly states that any person possessing a CDL faces a mandatory one-year disqualification for refusing to submit to the alcohol concentration test.

Mr. Navarre disputes OMV’s argument and asserts that the trial court correctly interpreted the provisions of La.R.S. 82:414.2 to overturn the ALJ and | reinstate his commercial driving privileges. Mr. Navarre contends that the statutory language in La.R.S. 32:414.2 references “offense[s]” and “conviction[s,]” and, since “his charge for driving while intoxicated was ‘dismissed outright[,]’ and there was no conviction for the offense[,]” he should not be disqualified from possessing a CDL pursuant to the language of La.R.S. 32:414.2.

In In re Lafleur, 12-1227, pp. 3-6 (La.App. 3 Cir. 3/6/13), 129 So.3d 540, 545-47, this court recently explained:

Louisiana has enacted two statutory schemes concerning the “suspension of driving privileges for persons who drive while intoxicated or under suspicion of doing so.” Walker v. State, Dept. of Public Safety, 589 So.2d 622, 624 (La.App. 3 Cir.1991). Those schemes, codi fied at La.R.S. 32:661-670 and at La. R.S. 32:414-415.1, permit DPSC to suspend the driving privileges of those persons meeting the statutory requirements contained therein. Id. However, although both schemes contain provisions concerning suspension of driving privileges based on driving while intoxicated or the suspicion thereof, “the two schemes are parallel, they are not integrated. The two statutory schemes are separate and distinct.” Id. -The procedures delineated in La.R.S. 32:667-670 concern those who have been arrested upon suspicion of driving while intoxicated, while La.R.S. 32:414-415.1 concerns those who have been convicted of and sentenced for, among other offenses, operating a vehicle while intoxicated.

However, we observe that La.R.S. 32:667(H)(1) provides, in relevant part, that:

. When any person’s driver’s license has been seized, suspended, or revoked, and the seizure, suspension, or revocation is connected to a charge or charges of violation of a criminal law, and the charge or charges do not result in a conviction, plea of guilty, or bond forfeiture, the person charged shall have his license immediately reinstated and shall not be required to pay any reinstatement fee if at the time for the reinstatement of driver’s license, it can be shown that the criminal charges have been dismissed or that there has been a permanent refusal to charge a crime by the appropriate prosecutor or there has been an acquittal.

|RIn contrast, La.R.S. 32:414 addresses the suspension of driving privileges after a conviction for certain offenses, stating, in part, that DPSC:

shall suspend the license of any person for a period of twelve months upon receiving, from any district, city, or municipal court ... satisfactory evidence of the conviction or the entry of a plea of guilty or nolo contendere and sentence thereupon ... of any such person charged with ... operating a motor vehicle while under the influence of beverages of high alcoholic content, of low alcoholic content, of narcotic drugs, or of central nervous system stimulants.

La'.R.S. 32:414(A)(l)(a). Pursuant to La.R.S. 32:414(F)(4), any person whose license is suspended shall have the right to seek a hearing in the district court to determine whether the license is subject to suspension. Review in the district court is de novo. Henry v. State, Dept. of Pub. Safety, 01-103 (La.App. 3 Cir. 6/27/01), 788 So.2d 1286.

Similarly, La.R.S. 32:414.2 specifically addresses those cases where a person holding a commercial driver’s license has been convicted of certain offenses. Specifically, La.R.S. 32:414.2(A)(l)(a) states, in relevant part, that:

[A] person shall be disqualified from driving a commercial motor vehicle for committing any offense specified in this Section.... The department shall suspend, revoke, or cancel the commercial driving privileges of a person who is disqualified to drive pursuant to this section.... If a driver is suspended or revoked from operating a Class “D” or “E” motor vehicle, he shall also be disqualified from operating a commercial motor vehicle.

A “conviction” is defined in La.R.S. 32:414.2(A)(9)(a) as:

an unvacated adjudication of guilt or a determination in a court of original jurisdiction or by an authorized administrative tribunal that a person has violated or failed to comply with the law.... A conviction shall occur regardless of whether a person is referred to a remedial or pretrial diversion program as an alternative to the imposition of a penalty, fine, or other sanction.

| (¡Specifically addressing those cases where a person holding a CDL refuses to submit to an alcohol concentration test, La.R.S. 32:414.2(A)(4)(d) provides, in pertinent part, that:

[A] person shall be disqualified from operating a commercial motor vehicle for a minimum period of one year for ... [a] first offense of refusal to submit to an alcohol concentration or drug test, while operating a commercial motor vehicle or noncommercial motor vehicle by a commercial driver’s license holder.

OMV emphasizes the holding in Austin v. Department of Public Safety, Office of Motor Vehicles, 46,654 (LaApp. 2 Cir. 11/2/11), 77 So.3d 474, in support of its position. Mr. Austin was arrested for operating a vehicle while intoxicated after he refused to submit to an alcohol concentration test. OMV suspended Mr. Austin’s driving privileges and further declared that Mr. Austin was ineligible for commercial driving privileges for one year. Mr. Austin sought an administrative hearing, and the suspension was affirmed by the ALJ. Mr. Austin was ultimately acquitted of the driving while intoxicated charge, and OMV reinstated his Class E personal driver’s license, but refused to return his CDL. Mr. Austin filed suit, and the trial court ordered OMV to reinstate his CDL.

Addressing OMV’s appeal, the second circuit ruled that the legislature intended “to hold individuals with a CDL to a zero tolerance standard as far as alcohol/drug use and driving[.]” Id. The second circuit noted that La.R.S. 32:414.2(A)(4)(d) penalized the refusal to submit to an alcohol concentration or drug test for CDL holders, whether they were driving a commercial motor vehicle or a noncommercial vehicle. Thus, even though “[i]t seem[ed] harsh to penalize [Mr.] Austin for refusal to submit to the blood test when he was ultimately acquitted of the crime of DWI[,]” because Mr. Austin had |7refused to submit to the alcohol concentration test, the second circuit reinstated the disqualification of his commercial driving privileges. Id.

Mr. Navarre emphasizes this court’s holding in Brooks, 66 So.3d 1236, in support of his position, and the trial court accepted Mr. Navarre’s assertion. We find Brooks similar, yet not completely analogous to the instant matter. An important distinction is that Mr. Brooks was arrested for operating a vehicle while in-toxieated after submitting to an alcohol concentration test which indicated that his blood alcohol content was 0.123 percent. This court determined that the trial court correctly reinstated Mr. Brook’s CDL on the basis that his charges were dismissed by the district attorney. The issue of whether La.R.S. 32:414.2 authorizes the disqualification of a CDL because of a person’s refusal to submit to an alcohol concentration test was not examined in Brooks, 66 So.3d 1236. It was, however, squarely addressed by the second circuit in Austin, 77 So.3d 474.

Based upon our review of the record and jurisprudence, we find error in the trial court’s ruling “that a conviction is required before [OMV] can revoke a license under the applicable' statutes.” Mr. Navarre’s license was rightfully seized pursuant to La.R.S. 32:667, and he was rightfully disqualified from operating a commercial motor vehicle pursuant to La.R.S. 32:414.2 for his refusal to submit to an alcohol concentration test. The trial court incorrectly relied upon Brooks, 66 So.3d 1236, when it ordered that Mr. Navarre’s commercial driving privileges be reinstated. In accordance with the statutory provisions of La. R.S. 32:414.2(A)(4)(d), Mr. Navarre “shall be disqualified from operating a commercial motor vehicle for a minimum period of one year for” his “refusal to submit to an alcohol concentration ... test, while operating a ... noncommercial motor vehicle by a commercial driver’s license holder.”

IsDECREE

For the foregoing reasons, the judgment of the trial court is reversed. All costs of these proceedings are assessed to Appel-lee, Robert C. Navarre.

REVERSED.

      . The vehicle being driven by Mr. Navarre belonged to his friend and passenger in the vehicle.

      . Pursuant to La.R.S. 32:667(A), when a person is placed under arrest for a violation of La.R.S. 14:98, and that person “either refuses to submit to an approved chemical test for intoxication, or submits to such test and such test results show a blood alcohol level of 0.08 percent or above by weight,” the arresting officer is required to seize the person’s driver's license and issue a temporary license which notifies the person that he or she may request an administrative hearing in accordance with La.R.S. 32:668.

      . Louisiana Revised Statutes 32:414.2 contains provisions relating to the suspension and restriction of commercial driving privileges.

      . 49 C.F.R. § 383.51 contains provisions relating to the United States Department of Transportation's authority to suspend and restrict commercial driving privileges.

      . The scope of a hearing in accordance with La.R.S. 32:668(A) is limited to:
      (1) Whether a law enforcement officer had reasonable grounds to believe the person, regardless of age, had been driving or was in actual physical control of a motor vehicle upon the public highways of this state ... while under the influence of either alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964.
      (2) Whether the person was placed under arrest.
      (3) Whether he was advised by the officer as provided in R.S. 32:661.
      (4) Whether he voluntarily submitted to an approved chemical test and whether the test resulted in a blood alcohol reading of 0.08 percent or above by weight_
      (5) Whether he refused to submit to the test upon the request of the officer.
      (6) Such additional matters as may relate to the legal rights of the person, including compliance with regulations promulgated by the Department of Public Safety and Correction and rights afforded to the person by law or jurisprudence.

      . The trial court’s Written Reasons mistakenly refer to La.R.S. 32:414.2(A)(4)(ii)(d); however, the correct statutory provision is La.R.S. 32:414.2(A)(4)(d).


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    SUCCESSION OF Louis Kenneth HEBERT, Jr.
    No. 13-954.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Ronald W. Melebeck, Abbeville, LA, for Appellee-Karla Coleman.
    Raven Matthews Pillette, Matthews Pil-lette Law, LLC, Abbeville, LA, for Appellant-Louis Hebert, III.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Chief Judge.

hln this succession proceeding opened in 2003, the trial court granted the appellee’s petition, filed in 2012, to intervene and establish paternity and heirship. The trial court awarded the appellee full rights and privileges as a forced heir. Since the trial court improperly applied La.Civ.Code art. 197 governing filiation actions retroactively to appellee’s prescribed claim under the then-in-effect law, we reverse the trial court’s judgment and dismiss all claims with prejudice.

I.

ISSUE

We shall consider whether La.Civ.Code art. 197 governing filiation actions applies retroactively to revive a child’s prescribed action for paternity and heirship.

II.

FACTS AND PROCEDURAL HISTORY

The decedent, Louis Kenneth Hebert Jr., died on June 27, 2003. His succession was opened in 2003, listing the appellant, Louis Kenneth Hebert III, as his only child. While the appellee, Karla Coleman, filed parentage test results with 12the court on October 2, 2003, indicating that the decedent was her biological father, Ms. Coleman did not file a formal petition of intervention to establish paternity and heirship until June 13, 2012.

The trial court granted Ms. Coleman’s petition, decreeing her to be the biological child of the decedent and awarding her full rights and privileges as a forced heir. Considering Ms. Coleman turned nineteen on March 28, 2003, Mr. Hebert filed a motion for new trial, arguing that Ms. Coleman’s paternity action had prescribed under the then-in-effect La.Civ.Code art. 209, which provided that a paternity action must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever occurs first. The trial court denied the motion for new trial, reasoning that Article 209 was repealed in 2005 by La.Civ.Code art. 197, which provided for a peremptive period of one year commencing on the day of the alleged father’s death and eliminated the requirement that a child’s paternity claim be brought prior to the age of nineteen.

III.

STANDARD OF REVIEW

The determination of whether a co-dal article applies retroactively is one of statutory interpretation that is reviewed de novo. In re Succession of Smith, 09-969 (La.App. 3 Cir. 2/3/10), 29 So.3d 723, writ denied, 10-829 (La.6/18/10), 38 So.3d 325; Stewart v. Estate of Stewart, 07-333 (La.App. 3 Cir. 10/3/07), 966 So.2d 1241.

JjIV.

LAW AND DISCUSSION

Mr. Hebert argues that La.Civ. Code art. 197 does not apply retroactively to Ms. Coleman’s paternity action as she turned nineteen prior to the amendment, which cannot revive already prescribed claims. As our court has already ruled on this particular matter, we agree.

The now-vacated La.Civ.Code art. 209 stated that a child not entitled to legitimate filiation must institute an action for paternity “within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs.” The Filiation of Parents and Children Act, effective June 29, 2005, No. 192, 2005 La. Acts 1444 substantively changed the law through the enactment of La.Civ.Code art. 197, which provides that “[f]or purposes of succession only,” a child’s paternity action “is subject to a peremptive period of one year” that “commences to run from the day of the death of the alleged father.”

In Smith, 29 So.3d at 725, this court held that the 2005 amendment did not apply retroactively to revive a child’s filiation action that had already prescribed under La.Civ.Code art. 209. In pertinent part, the court reasoned:

This and other Louisiana courts have already examined the 2005 amendment’s effect. Thus, where the alleged father died prior to the amendment, but the children’s appeal was pending when the amendment became effective, this court rejected the amendment’s applicability to the filiation actions of the alleged heirs who were well beyond nineteen years of age. This court explained that although, generally, prescriptive statutes are procedural, once the prescriptive period elapses, a party acquires a right to plead the exception of prescription. A change in the right to plead the exception is a substantive change in the law. Because procedural statutes that also change substantive law must be construed to apply only prospectively, we required a clear and unequivocal expression of legislative intent for ¡ 4the statute to apply retroactively. This court con-eluded the language in section 3 of the Filiation of Parents and Children Act that “[t]he provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date” expressed no such legislative intent.

/¿(citations omitted).

Finding that La.Civ.Code art. 209 was in effect at the time the alleged heir reached the age of nineteen, our circuit concluded that the claim had prescribed and the 2005 amendment did not apply.

Here, Ms. Coleman turned nineteen on March 28, 2008, before filing any petition for filiation. At this time, she was never formally acknowledged so her only means of establishing paternity was through La. Civ.Code art. 209. Under Article 209, her claim prescribed on her nineteenth birthday. Following Smith, the 2005 amendment, La.Civ.Code art. 197, cannot revive this already prescribed claim as there is no expressed legislative intent to allow this amendment to apply retroactively.

Ms. Coleman argues that Mr. Hebert improperly brought an exception for prescription for the first time on appeal since Mr. Hebert filed his exception after the briefs were filed. We disagree. The peremptory exception of prescription may be heard for the first time on the appellate level “if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.” La.Code Civ.P. art. 2163. Here, there was ample evidence in the record to indicate that Ms. Coleman did not file her filiation action timely. Furthermore, a case is not submitted for decision on the appellate level until after it has been argued by briefs and oral arguments if requested. See Smith v. Jones, 8 So.2d 718 (La.App. 1 Cir.1942). Here, while Mr. Hebert filed his exception after 15the briefs, it was still submitted prior to oral arguments. As such, it was timely filed and may be considered for the first time by this court.

Ms. Coleman also argues that this case should be remanded to the trial court for trial of the exception of prescription as she properly demanded this remand in accordance with La.Code Civ.P. art. 2163. Again, we disagree. Louisiana Code of Civil Procedure Article 2163 does not mandate that the appellate court remand the case for trial of the prescription issue upon request; rather, “[t]he appellate court has discretion to do so should the interests of justice require a full hearing.” Willett v. Premier Bank, 97-187, p. 10 (La.App. 3 Cir. 6/4/97), 696 So.2d 196, 201. Here, the record clearly indicates that Ms. Coleman did not timely file her filiation action. As such, a full hearing is not required in the interests of justice to adequately decide this issue, and we exercise our discretionary authority to hear this exception for the first time and conclude that Ms. Coleman’s claim has prescribed.

Even if La.Civ.Code art. 197 did apply, Ms. Coleman’s claim would still be per-empted. Article 197 requires that a filiation claim be brought within one year of the death of the alleged father. Here, while the decedent died in 2003, Ms. Coleman did not file her petition for filiation until 2012. While Ms. Coleman argues the date of commencement should be October 2, 2003, as that is the date she filed the parentage test, this argument fails as a civil action “is commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction” and the parentage results do not constitute a proper pleading. La.Code Civ.P. art. 421.

Nevertheless, we conclude that Ms. Coleman’s action for paternity and forced heirship prescribed under the then-in-effect La.Civ.Code art. 209. |6Since this action has prescribed, we need not address Mr. Hebert’s other assignments of error as they have been rendered moot.

V.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court and dismiss Ms. Coleman’s claims with prejudice.

All costs are assessed against Karla Coleman, appellee.

REVERSED AND RENDERED.

      . Louisiana Civil Code Article 197 states:
      A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence.
      For purposes of succession only, this action is subject to a peremptive period of one year. This preemptive period commences to run from the day of the death of the alleged father.


author: PETERS, J.

text:
    Linda Jeane GARMAN, et vir. v. Joyce Jeane SERHAN, et vir.
    No. 13-969.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.
    Daniel G. Brenner, Bolen, Parker, Brenner, Lee & Englesman Ltd., Alexandria, LA, Van C. Seneca, Lake Charles, LA, for Defendants/Appellees, Joyce Jeane Ser-han, Joe Serhan.

      Mitchel M. Evans, II, DeRidder, LA, for Plaintiffs/Appellants, Linda Jeane Garman, Alien “Ike” Garman.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JOHN D. SAUNDERS and JIMMIE C. PETERS, Judges.
   PETERS, J.

| ¡¿The plaintiffs in this defamation action, Lynda Jeane Garman and Allen “Ike” Garman, appeal the trial court’s grant of a motion for partial summary judgment dismissing their claims against the defendants, Joyce Jeane Serhan and Joe Serhan. For the following reasons, we reverse the trial court judgment and remand the matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

On December 13, 2007, Lynda Jeane Garman and Allen “Ike” Garman (the Gar-mans), who are husband and .wife, filed suit against Joyce Jeane Serhan and Joe Ser-han (the Serhans), who are also husband and wife, seeking to recover damages they claim to have sustained as a result of defamatory statements made about them by the Serhans to G. Charest Thibodeaux between October 81, 2006, and March 6, 2007. Lynda Jeane Garman and Joyce Jeane Serhan are sisters. The Garmans asserted in their original petition that the defamatory statements were both oral and written.

The Garmans asserted in their original petition that sometime betwfeen October 31, 2006, and March 6, 2007, the Serhans contacted Mr. Thibodeaux and requested that he conduct an appraisal of their immovable property located in Vernon Parish, Louisiana, “to determine the volume of cut timber allegedly removed by Petitioners.” The petition further asserts that, the Serhans not only alleged to Mr. Thi-bodeaux “that Petitioners had cut their timber without authorization; but, further alleged that Petitioners had also given permission for a utility company to bury utility lines on her [sic] Defendants’ property without their ^knowledge and/or consent.” The Garmans further asserted in their petition that Mr. Thibodeaux performed a timber cruise of the property on April 24 and 26, 2007, in the company of the Serhans’ attorney, Clay Williams; and that as a result of his timber cruise and subsequent investigation, Mr. Thibodeaux concluded that “there was no evidence that any timber ever existed whatsoever, as alleged by Defendants.” According to the Garmans’ petition, Mr. Thibodeaux further concluded “that there was no evidence of any timber removal operations having been conducted upon Defendants’ property such as stumps, logging equipment tracks, debris, etcetera.” The petition asserts that Mr. Williams reached the same conclusion.

The Garmans further asserted in' paragraph XV of their original petition that the Serhans were dissatisfied with Mr. Thibo-deaux’s findings and took further steps in their assertions against them:

Defendants were notified by both THIBODEAUX and WILLIAMS of their respective findings that there existed no evidence of illegal timber removal. Not satisfied, Defendants then sent a letter to THIBODEAUX on May 3, 2007, alleging that THIBODEAUX had misled them because “Garman had already confessed to us in October, 2006”, and further accused THIBO-DEAUX of having colluded with the Garmans. Defendants then reported THIBODEAUX to the Office of Louisiana Commissioner for appraisers; the Better Business Bureau; and the Louisiana Real Estate Appraisal Subcomit-tee; and the Louisiana Office of Forestry, alleging that THIBODEAUX committed fraudulent acts in collusion with Petitioners, all of which necessitated written sresponses from THIBO-DEAUX and Petitioners in conjunction with investigations conducted by said agencies.

The Serhans answered the Garmans’ petition on February 19, 2008, and from that time through February 11, 2018, a number of pleadings were filed which raise other issues not now before this court. On February 11, 2013, the Serhans 14filed the motion for partial summary judgment now before us. Without acknowledging that the words attributed to them were ever spoken or reduced to writing, the Serhans asserted that the Garmans could not carry their burden of proving they sustained any damages in their defamation claim.

At the February 26, 2013 hearing on the Serhans’ motion, neither litigant introduced any evidence. Instead, they simply argued the content of the pleadings and attachments to the pleadings and memo-randa filed in the record. Upon completion of the argument phase, the trial court took the motion under advisement. On March 18, 2013, the trial court issued written reasons for judgment wherein it granted the partial summary judgment based on the lack of any medical evidence of physical or emotional injury suffered by the Garmans as a result of the defamatory statements. The trial court signed a judgment to this effect on April 15, 2013,. and thereafter the Garmans perfected this appeal.

OPINION

The Garmans claim damages for defamation, “a tort which involves the invasion of a person’s interest in his or her reputation and good name.” Costello v. Hardy, 03-1146, p. 12 (La.1/21/04), 864 So.2d 129, 139 (citations omitted). “Four elements are necessary to establish a defamation cause of action: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Id. (quoting Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559). In this matter, the trial court granted the Serhans’ motion for partial I.ssummary judgment based on its conclusion that there was an absence of factual support for the “resulting injury” element of the Gramans’ defamation claim.

It is well-settled that “[ajppellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 7 (La.7/2/12), 94 So.3d 750, 755 (citations omitted). Pri- or to August 1, 2012, the evidentiary burden in summary judgment matters was set forth in La.Code Civ.P. art. 966(B)(empha-sis added), as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

However, by 2012 La. Acts No. 257, § 1, the Louisiana Legislature significantly changed La.Code Civ.P. art. 966, and one of those changes included amending and restructuring La.Code Civ.P. art. 966(B). The language cited above was moved to a new subparagraph designated as La.Code Civ.P. art. 966(B)(2), but without the words “on file.” To emphasize the significance of the deletion of these two words, the legislature added a subparagraph designated as La.Code Civ.P. art. 966(E)(2)(emphasis added), which provided that “[o]nly evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion.” Still, the 2012 amendment did not change the burden of proof applicable to a motion for summary judgment.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is | (¡before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material of fact.

La.Code Civ.P. art. 966(C)(2).

The Serhans, as movants, had the burden of proof on their motion, because they did not bear the burden of proof at trial, they needed only to “point out to the court that there is an absence of factual support for one or more elements essential to” the Garmans’ claims. Id. The Serhans failed in their burden of proof. They offered no evidence in support of their motion, and the trial court was left with no properly admitted evidence for it to consider. La.Code Civ.P. art. 966(E)(2). “Evidence not properly and officially offered and introduced shall not be considered, even if it is physically placed in the record.” Adams v. Allstate Ins. Co., 01-1244, p. 6 (La.App. 5 Cir. 2/26/02), 809 So.2d 1169, 1173 (citations omitted).

We find that the trial court erred in granting the motion for partial summary judgment.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s judgment granting the motion for partial summary judgment dismissing the defamation claims of Lynda Jeane Garman and Allen “Ike” Garman against Joyce Jeane Serhan and Joe Ser-han and remand the matter to the trial court for further proceedings. We assess all costs of this appeal to Joyce Jeane Serhan and Joe Serhan.

REVERSED AND REMANDED.

      . The Garmans' petition identifies Mr. Thibo-deaux as a certified residential real estate appraiser professionally associated with the Century 21 organization.

      . Mr. Williams is not the Serhans' counsel of record in the litigation now before us.

      . The hearing related to other issues in the litigation as well. However, those issues are not now before us.

      . We note that the Louisiana Legislature again substantially amended La.Code Civ.P. art. 966 by 2013 La. Acts No. 391, § 1, and that legislation again affected the burden of proof elements of the Article. However, the 2012 version of La.Code Civ.P. art. 966 was in effect from August 1, 2012 through July 31, 2013, and it governs the February 2013 summary judgment hearing in this case.

      . As that Article read between August 1, 2012, and July 31, 2013.


text:
    Charles CUTLER v. STATE of LA, DEPT. OF PUBLIC SAFETY & CORRECTIONS.
    No. 13-971.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.
    Judith M. Williams, Assistant Attorney General, Alexandria, LA, for Defendant/Appellee-State of LA, Dept, of Public Safety & Corrections.
    Charles Cutler, Monroe, LA, pro se.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Chief Judge.

| T Charles Cutler appeals the trial court’s judgment granting an Exception of Insufficiency of Service of Process and dismissing his personal injury suit against the State of Louisiana, Department of Public Safety and Corrections, following a vehicular accident. We affirm the trial court’s judgment.

I.

ISSUES

We must decide whether the trial court erred in dismissing the plaintiffs petition without prejudice for insufficient service of process.

II.

FACTS AND PROCEDURAL HISTORY

Charles Cutler was a prisoner of the Louisiana Department of Public Safety and Corrections (DPSC) and was housed with the Rapides Parish Sheriffs Work Release Program Department at the time of the accident on November 15, 2011. Mr. Cutler and other prisoners were working on the Alexandria airport grounds and traveling in a transport van when the van was struck by the driver of a Jeep, who had run a stop sign. Several prisoners were treated for injuries. Mr. Cutler settled with the driver of the Jeep and dis- ' closed the amount of the settlement as $1,000.00. On November 7, 2012, Mr. Cutler filed this suit in Rapides Parish alleging fault against the DPSC for the collision.

The Clerk of Court returned Mr. Cutler’s petition to him for failure to include an order, and then the court denied his in forma pauperis petition. Mr. Cutler paid the filing fee and requested service on the Office of Risk Management 12only, at 1201 N. 3rd Street in Baton Rouge. The Office of Risk Management was served. The Attorney General received the assignment, and the case was transferred to the Alexandria office of the Attorney General. After conducting an investigation, the Attorney General’s office filed a Declinatory Exception of Improper Service on behalf of the DPSC.

In response to the exception, Mr. Cutler argued that he had relied upon a 2008 representation by the Attorney General’s office in Lake Charles in a suit that he had filed in Calcasieu Parish against the parole board in a criminal matter. The five-year-old Calcasieu suit was not in the possession of the Rapides agency defendant in this matter.

The trial court granted the DPSC’s exception and dismissed Mr. Cutler’s civil suit without prejudice.

III.

STANDARD OF REVIEW

Questions of law are reviewed de novo. City of Bossier City v. Vernon, 12-78 (La.10/16/12), 100 So.3d 301. An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). The manifest error stan dard of review applies to a trial court’s dismissal of a suit for failure to request proper and timely service; however, the requirement that good cause be shown as to why service could not be requested is strictly construed. La.Code Civ.P. art. 1672(C); Burgo v. Henderson, 12-332 (La.App. 3 Cir. 12/19/12), 106 So.3d 275.

_k™

LAW AND DISCUSSION

On appeal, Mr. Cutler argues that the trial court erred in not following Whitley v. State, Board of Supervisors, 11-40 (La.7/1/11), 66 So.3d 470, for the proposition that service on the Office of Risk Management is proper service under La. R.S. 13:5107. He further argues that the Attorney General wrongfully withheld the proper physical address for service, and that the trial court erred in not finding that Mr. Cutler had shqwn good cause for the improper service. We find no error on the part of the trial court.

Whitley is not applicable. Effective June 2012, prior to Mr. Cutler’s November 2012 accident, La.R.S. 13:5107 was amended. The amendment designated paragraph A as A(l) and added paragraph A(2). It provides in pertinent part (emphasis added):

§ 5107. Service of citation and process
A. (1) In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney gen- . eral of Louisiana, or on any employee in his office above the age of sixteen ■ years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.
(2) Service shall be requested upon the attorney general within ninety days of filing suit. This shall be sufficient to comply with the requirements of Subsection D of this Section and also Code of Civil Procedure Article 1201(C). However, the duty of the defendant |4served through the attorney general to answer the suit or file other responsive pleadings does not commence to run until the additional service required upon the department, board, commission, or agency head has been made.
D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition, which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within the period required in Paragraph (1) of this Subsection, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, upon whom service was not requested within the period required by Paragraph (1) of this Subsection.

Mr. Cutler requested service only upon the Office of Risk Management. He never requested service on the Attorney General or on the defendant agency, DPSC. Further, there is no merit to Mr. Cutler’s argument that the Attorney General deliberately concealed its physical address by using a post office box on its letterhead. Such physical addresses are a matter of public record. Nor was Mr. Cutler deliberately misled by relying on an old case he had filed in another jurisdiction. Likewise, there is no merit to his arguments in the record that he could not find the proper address because he was incarcerated and the prison library was below standard. Mr. Cutler has not shown “good cause” for improper | (¡service under La.Code Civ.P. art. 1672(C) within the ninety days prescribed by La.Code Civ.P. art. 1201(C) and La.R.S. 13:5107, which is his burden to establish.

In Burgo v. Henderson, 12-332 (La.App. 3 Cir. 12/19/12), 106 So.3d 275, we found that an inmate who filed suit for damages against the DPSC failed to show good cause why he could not request service within ninety days of the commencement of his action where his only explanation was that State agents created impediments by withholding the addresses of those entities. Under the same statutes, we found that mere confusion over a party’s proper service information was not sufficient to show good cause for improper and untimely service; nor was inadvertence on the part of the plaintiffs counsel; nor was the plaintiffs allegation that his incarceration excused his failure to obtain proper service information.

V.

CONCLUSION

Based upon the foregoing, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Mr. Charles Cutler.

AFFIRMED.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. William C. BARONET.
    No. 13-986.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.
    Heath J. Dorsey, Public Defenders Office, Lake Charles, LA, for Defendant Appellant, William C. Baronet.
    John Foster DeRosier, District Attorney, Fourteenth Judicial District, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

|,FACTS

The following factual basis was set forth by the state at the defendant’s no contest plea:

Your Honor, if called to trial the State would prove that on or about July 18, 2008 in Calcasieu Parish the defendant turned left into oncoming traffic and struck an oncoming motorcycle.
The injuries suffered by the victim is that he had to have his foot amputated. Mr. Baronet admitted to drinking and blew a .168 on the intoxilyzer.

On June 17, 2009, the defendant, William C. Baronet, was charged by bill of information with one count of DWI, a violation of La.R.S. 14:98; one count of careless operation, a violation of La.R.S. 82:58; one count of driving under suspension, a violation of La.R.S; 32:415; and one count of first degree vehicular negligent injury, a violation of La.R.S. 14:39.2. The defendant entered pleas of not guilty to the charges on July 27, 2009. Thereafter, on December 10, 2009, the defendant entered a no contest plea to one count of first degree vehicular negligent injuring, with the remaining charges being nolle prosequied. The trial court ordered a presentence investigation report and set sentencing for a later date. Subsequently, on March 17, 2010, the defendant was sentenced to five years in the Department of Corrections, with two years suspended. The trial court placed the defendant on five years supervised probation, with special conditions of probation. The trial court also ordered the defendant to pay restitution as a condition of probation, but ordered the amount to be determined at a restitution hearing to be held when the defendant began probation.

Upon the defendant’s release from incarceration on April 22, 2011, the defendant’s probation and parole officer petitioned the court to schedule the | ¡restitution hearing. Accordingly, a restitution hearing was held on May 24, 2012. At the hearing, the state introduced exhibits as well as the testimony of the victim. The trial court allowed both sides to file memoranda and took the matter under advisement. Thereafter, on April 5, 2013, the trial court held a hearing to impose restitution. The defendant was not present at the April 5, 2013 hearing. The defendant’s counsel told the court that he did not know whether or not the defendant received notice of the hearing. Nonetheless, the trial court imposed restitution in the amount of $36,000, payable at the rate of $500 per month. On May 2, 2013, the defendant filed a motion for appeal, which was granted that same day. The defendant is now before this court, alleging that the amount of restitution is excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent that requires the trial court’s imposition of restitution to be vacated and the case remanded for re-imposition of restitution.

As mentioned previously, the defendant was not present when the trial court imposed restitution. Although the defendant was present at the initial restitution hearing wherein the state introduced exhibits as well as the victim’s testimony, the trial judge did not impose restitution at that hearing. Rather, the trial judge gave the parties an opportunity to file memoranda on the restitution issue. When the matter was again called for a restitution hearing on April 5, 2013, the defendant was not present, and the defendant’s attorney stated that he did not know whether or not the defendant received | ^notice of the hearing. The trial judge acknowledged the defendant’s absence and commented that the defendant may not have received notice of the hearing. Nonetheless, after hearing brief arguments on the issue, the trial judge ordered the defendant to pay restitution in the amount of $36,000, payable at the rate of $500 per month.

In State v. Thomas, 05-1051 (La.App. 3 Cir. 3/1/06), 924 So.2d 1146, abrogated on other grounds by State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, this court addressed as an error patent the legality of defense counsel’s waiver of Thomas’ presence from a hearing at which the trial court imposed restitution. Finding Thomas’ presence could not be waived, this court stated:

Louisiana Code of Criminal Procedure Article 835 provides for the Defendant’s presence when sentence is pronounced:
In felony cases the defendant shall always be present when sentence is pronounced.... If a sentence is improperly pronounced in the defendant’s absence, he shall be resen-tenced when his presence is secured.
The imposition of restitution is considered a part of the defendant’s sentence, for which the defendant must be present. State v. Fortier, 03-882 (La.App. 5 Cir. 11/25/03), 862 So.2d 170. See also State v. Boudreaux, 98-1932 (La.App. 3 Cir. 6/16/99), 741 So.2d 860. In State v. McIntyre, 567 So.2d 800 (La.App. 3 Cir.1990), this court stated the purpose of Article 835 is “to insure that defendant has an adequate opportunity to present evidence and to dispute the accuracy of the sentencing judge’s reasons for sentencing and to insure that defendant is apprised of the charge for which punishment is imposed.” Id. at 801 (citations omitted).

Id. at 1149. Because the trial court increased Thomas’s restitution amount without Thomas being present, this court found that that portion of Thomas’s sentence was illegally imposed. Id. at 1150. Accordingly, this court remanded for a “consideration of the imposition of restitution” in Thomas’s presence. Id. at 1151. See also State v. Granger, 08-1477 (La.App. 3 Cir. 6/3/09), 11 So.3d 649, wherein |4this court ordered the defendant to be present when the case was remanded for imposition of restitution.

Likewise, we find the trial judge’s imposition of restitution during the absence of the defendant in the present case failed to comply with the provisions of La.Code Crim.P. art. 835. The order of restitution must, therefore, be vacated, and this matter is remanded for the judge to impose restitution in the defendant’s presence.

ASSIGNMENTS OF ERROR

In his three assignments of error, the defendant challenges the trial court’s restitution award by arguing that it is excessive, that it was imposed without a proper consideration of the defendant’s assets and/or ability to pay, that it was imposed without a proper consideration of the victim’s actual pecuniary loss, and that it was imposed without a proper consideration of monies paid to the victim in a civil settlement. These assigned errors are preter-mitted by the error patent discussed above. See Thomas, 924 So.2d at 1154.

CONCLUSION

The trial court’s order of restitution is vacated, and the ease remanded for re-imposition of restitution in the presence of the defendant as required by La.Code Crim.P. art. 835.

ORDER OF RESTITUTION VACATED AND REMANDED WITH INSTRUCTIONS.


text:
    Thelma M. HODGES, et al. v. Michael A. TAYLOR, et al.
    No. 13-1010.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.
    Roy H. Maughan, Jr., The Maughan Law Firm, Baton Rouge, LA, for Plaintiffs/Appellants Thelma M. Hodges, Marcus J. McCoy.

      James D. “Buddy” Caldwell, Attorney General, Michael W. Landry, Adam L. Or-tego, Assistant Attorneys General, Lake Charles, LA, for Defendant/Appellant State of Louisiana, Dept, of Public Safety and Corrections.
    Bryan E. Lege, Kraft, Gatz, Lane, Lafayette, LA, for Defendant/Appellee Navarre Chevrolet, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   PETERS, J.

| ,The plaintiffs in this matter, Thelma Hodges and Marcus J. McCoy, appeal the trial court’s grant of a peremptory exception of no cause of action dismissing their claims against the State of Louisiana, Through the Department of Public Safety and Corrections (DPS). DPS also appeals the trial court judgment rejecting its peremptory exception of prescription. For the following reasons, we affirm the trial court judgment.

DISCUSSION OF THE RECORD

The matter now before us has as its origin a December 21, 2007 four-vehicle automobile accident which occurred on U.S. Highway 165 in Jefferson Davis Parish. On September 11, 2008, Thelma Hodges, the driver of one of the vehicles involved in the accident, and Marcus J. McCoy, her guest passenger filed suit against Michael A. Taylor, the driver of one of the other three vehicles. In their petition, Ms. Hodges and Mr. McCoy asserted that the accident was caused solely by Mr. Taylor’s negligence. Mr. Taylor did not respond to the petition, and, on November 20, 2008, the two plaintiffs caused a preliminary default to be entered against him.

Mr. Taylor had purchased the vehicle he was driving at the time of the accident from Navarre Chevrolet, Inc. (Navarre Chevrolet) on November 7, 2007, and, on October 26, 2009, the plaintiffs amended their petition to name Navarre Chevrolet as a party defendant. Ms. Hodges and Mr. McCoy based their claims against Navarre Chevrolet on the fact that Mr. Taylor’s vehicle was not insured for liability purposes at the time of the accident. The plaintiffs asserted in their amending petition that Navarre Chevrolet had a statutory duty pursuant to La.R.S. 32:862 to obtain an affidavit from Mr. Taylor “attesting to compliance with the Compulsory Motor Vehicle Safety Responsibility Law” before selling him a |2vehicle and that it failed to do so. They claimed that this negligent failure on the part of Navarre Chevrolet to comply with the statute allowed Mr. Taylor to operate a vehicle on the Louisiana highways “to the Plaintiffs’ detriment.”

Navarre Chevrolet responded to this amended petition by filing a motion for summary judgment. In support of its motion, Navarre Chevrolet provided the trial court with what it described as a completed copy of the Louisiana Department of Public Safety and Corrections Vehicle Application form executed by Mr. Taylor, which states in pertinent part:

I do swear or affirm that the information contained in this document is true and correct to the best of my knowledge. I have and will maintain, during this registration period vehicle liability insurance (security) required by LRS Title 82:861-865. Failure to maintain as agreed will be a violation of law which may result in criminal prosecution and/or suspension of registration privileges.
If the vehicle being registered is defined as a commercial motor vehicle by the Federal Motor Carrier Safety Regulation and/or Federal Hazardous Material Regulations, by signature below registrant declared knowledge of those federal regulations.

This language is followed by the signature of Mr. Taylor which was neither witnessed nor notarized. Below the signature line, the form provides that “PROOF OF LIABILITY INSURANCE MUST BE FURNISHED AS PROVIDED FOR BY LAW BEFORE THIS FILE CAN BE PROCESSED.”

After a hearing on the motion, the trial court took the matter under advisement. On October 26, 2011, the trial court issued written reasons for judgment granting Navarre Chevrolet’s motion and dismissing the claims against it. In its written reasons for judgment, the trial court found that Mr. Taylor’s signature on the form provided Navarre Chevrolet by the Louisiana Department of Public Safety and Corrections Vehicle Application satisfied the affidavit requirements of La.R.S. 32:862. Based on the record, the trial court factually found that Navarre | sChevrolet complied with La.R.S. 32:862, but went further to conclude that “the plaintiffs have not introduced any persuasive evidence that NAVARRE owed a duty to protect third parties from drivers without insurance or to keep uninsured drivers off the roads.”

Ms. Hodges and Mr. McCoy appealed that judgment, and a panel of this court reversed the trial court’s judgment, finding that La.R.S. 32:862 did impose a duty on Navarre Chevrolet to protect third parties from uninsured drivers; that the document relied on by Navarre Chevrolet was not in affidavit form; and that there existed other genuine issues of material fact which precluded the grant of a summary judgment. Hodges v. Taylor, 12-107 (La.App. 3 Cir. 6/6/12), 91 So.3d 1259, prior to reversal. The supreme court, however, reversed the decision of this court and reinstated the trial court judgment dismissing Navarre Chevrolet from the litigation. Hodges v. Taylor, 12-1581 (La.11/2/12), 101 So.3d 445. In doing so, the supreme court found that La.R.S. 32:862 did not impose any duty on an automobile dealer which would extend to the protection of third parties from injuries they sustained at the hands of an uninsured driver.

Ms. Hodges and Mr. McCoy then amended their petition on November 29, 2012, to add DPS as a party defendant. The plaintiffs asserted as the basis of DPS’s liability their position that “the official “Vehicle Application’ form provided for use by the Department of Public Safety when registering the purchase of a motor vehicle ... did not comply with the requirements of Louisiana Revised Statute 32:862.” Specifically, the plaintiffs asserted that DPS violated its “affirmative duty ... to promulgate rules to enforce the Motor Vehicle Safety Responsibility Law, particularly rules to require documentation of proof of compliance with the Motor Vehicle Safety Responsibility Law from those making application ... for registration in this State.” The failure of DPS to fulfill its Lstatutory duty, the plaintiffs asserted, allowed uninsured drivers such as Mr. Taylor to drive on Louisiana highways and “cause injuries to innocent victims.”

On January 16, 2013, DPS responded to the amending petition by filing peremptory exceptions of no cause of action and prescription. Following a June 11, 2013 hearing, the trial court took the issues under advisement. Fifteen days later, on June 26, 2013, the trial court filed written reasons for judgment granting the exception of no cause of action and rejecting the exception of prescription. The trial court executed a judgment to this effect on July 11, 2013, and both the plaintiffs and DPS perfected appeals.

In their appeal, Ms. Hodges and Mr. McCoy assigns seven assignments of error all asserting that the trial court erred in granting the exception of no cause of action. Basically, they argue that DPS has not enacted provisions concerning affidavits as is its statutory duty; that the document signed by Mr. Taylor was not in affidavit form; that the trial court relied on evidence outside the petition to grant the exception; and that some of the evidence relied on by the trial court had not been introduced in support of the exception.

In its appeal, DPS asserts that the trial court correctly granted the exception of no cause of action, but erred in rejecting its peremptory exception of prescription.

OPINION

Because the peremptory exception of no cause of action “raises a question of law and the lower court’s decision is necessarily based solely on the sufficiency of the petition[,]” we review the grant of the exception under a de novo standard. State, Div. of Admin., Office of Facility Planning & Control v. Infinity Sur. Agency, L.L.C., 10-2264, p. 9 (La.5/10/11), 63 So.3d 940, 946 (citations omitted). “The pertinent question is whether, in the light most favorable to plaintiff and with every Isdoubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief.” Id. “No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La.Code Civ.P. art. 931.

The claims by Ms. Hodges and Mr. McCoy in their pleadings question DPS’s compliance or lack of compliance with the duties imposed by La.R.S. 32:862 as that statute relates to preventing uninsured motorists from driving on the highways of this state. Louisiana Revised Statutes 32:862 is a part of what is generally referred to as the Louisiana Motor Vehicle Safety Responsibility Law, La.R.S. 32:851 et seq. Louisiana Revised Statutes 32:861(A)(1) establishes the requirement that all general purpose motor vehicles registered in Louisiana “shall be covered by an automobile liability policy” or other form of security providing the limits of liability required by statute. The duty to maintain such liability coverage “shall be the duty of the registered owner of a motor vehicle,” and his or her failure to maintain the appropriate coverage will subject the owner to statutory sanctions. La.R.S. 32:861(A)(2).

Louisiana Revised Statutes 32:862 establishes the duty owed by the registered owner of a vehicle to show proof of compliance as well as the duty imposed on DPS in adopting certain forms for use in the process. As it relates to the matter before us, La.R.S. 32:862 (emphasis added), reads in pertinent part:

B(l) The commissioner shall adopt rules to implement the provisions of this Section. The rules shall provide that documentation of insurance or other security shall be required for proof of | fiCompliance. The rules shall require that the original, a photocopy, or an image displayed on a mobile electronic device, of one of the following documents be produced as documentation of insurance: an insurance card; an insurance policy; or the declarations page of the insurance policy showing coverages. The rules shall require insurance and security companies to issue cards or similar documents, or an image of the card or similar documents capable of being displayed on a mobile electronic device, which indicate the existence of insurance or security coverage, may establish the form for the cards or similar documents, and may establish the form for the written declarations required by this Section.
(2) The provisions of this Subsection with regard to the documentation of insurance requirements shall not apply to new and used automobile dealers as defined by law. However, the rules shall 'provide for the use of affidavits to prove compliance when registration is sought by a licensed new or used motor vehicle dealer on behalf of a customer.
C. Each person who applies for the registration of a motor vehicle, or who applies for the renewal of a registration of a motor vehicle, or who applies for a motor vehicle inspection certificate shall provide proof of compliance and shall declare in writing that the applicant will remain in¡ compliance during the time for which the registration, the renewal of registration, or the certificate is issued.
H. No action taken by any person, whether private citizen or public officer or employee, with regard to any license, registration, or inspection certificate, or with regard to any document or electronic image which indicates compliance with this Part, shall create a presumption of the existence of insurance coverage, or be construed by any court as a warranty of the reliability or accuracy of the document or electronic image, or create any liability on the part of the state, or on the part of any department, office, or agency of the state, or on the part of any officer, employee, or agent of the state.

In their petition, Ms. Hodges and Mr. McCoy assert that DPS failed in its duty to adopt the rules envisioned by La.R.S. 32:862(B), and that this failure “allowed Michael Taylor to ultimately take to the highways of the State of Louisiana without automobile liability insurance coverage and inflict severe injury, on Petitioners.” Specifically, they assert that DPS failed to adopt a rule providing for the use of an affidavit of a licensed motor vehicle dealer as allowed by La.R.S. |732:862(B)(2). Instead, according to the petition, DPS provided a form for the dealers to use which did not satisfy affidavit form in that it did not provide a place for a witness or notary to sign. Thus, when Navarre Chevrolet acted for Mr. Taylor in attempting to register the vehicle it sold to him, it did not provide the affidavit contemplated by La. R.S. 32:862(B)(2) because DPS had not adopted such a form in accordance with its statutory duty.

With regard to the exception of no cause of action, the trial court stated in its written reasons for judgment:

[T]he exception of no cause of action is granted. The plaintiffs are arguing that the basis of their claim is the statute itself and not the “vehicle application” form. However, LOUISIANA has enacted provisions concerning affidavits attesting to insurance coverage and an affidavit in this case was executed by the buyer of vehicle at the dealership. Consequently, as argued by LOUISIANA, the Court cannot find a basis for liability under LA R.S. 32:862(H).

As is the case with this court, the trial court found itself in the unique situation of having to consider an exception of no cause of action in a record wherejn many of the factual assertions made by Ms. Hodges and Mr. McCoy against DPS had been litigated in their claims against Navarre Chevrolet. Ms. Hodges and Mr. McCoy assert generally throughout their argument in their assignments of error that the trial court erred in considering facts established in the Navarre Chevrolet phase of the litigation. We have to agree with that argument as we are clearly limited to their pleadings only in considering this exception. La.Code Civ.P. art. 931. However, in reviewing the matter de novo, we find that the trial court reached the correct conclusion.

Ms. Hodges and Mr. McCoy assert a claim of negligence against DPS, and we must consider the cause of action pursuant to the duty-risk analysis. Boykin v. Louisiana Transit Co., Inc., 96-1932 (La.3/4/98), 707 So.2d 1225. The duty-risk | ¡^analysis requires consideration of five separate elements, all of which must be met for the plaintiff to recover:

This negligence case is properly examined under the duty-risk analysis. The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). David W. Robertson et al., Cases and Materials on Torts 83-84 (1989); Fowler v. Roberts, 556 So.2d 1 (La.l989)(on original hearing).

Id. at 1230 (footnote omitted).

In the context of the case now before us, we must consider whether the well-pleaded facts set forth in the petition of Ms. Hodges and Mr. McCoy, standing alone, state a cause of action against DPS. We find that they do not.

It is undisputed that DPS had a statutory duty “to adopt rules to implement the provisions of’ the Louisiana Motor Vehicle Safety Responsibility Law with regard to showing proof of compliance with the financial responsibility aspects of that law. La.R.S. 32:862(B)(1). That duty includes adopting rules to “provide for the use of affidavits to prove compliance when registration is sought by a licensed new or used motor vehicle dealer on behalf of a customer.” La.R.S. 32:862(B)(2). Accepting the well-pleaded facts of the petition of Ms. Hodges and Mr. McCoy as true, DPS did breach the duty imposed on it by La.R.S. 32:862(B)(2) in that the form provided to the licensed motor vehicle dealer is not in affidavit form.

The analysis of the third element of the duty-risk analysis, the cause-in-fact element, “generally involves a ‘but-for’ inquiry which questions whether or not the ^injury would have occurred ‘but for’ the defendant’s substandard conduct.” Petre v. State ex rel. DOTD, 00-545, p. 8 (La.App. 3 Cir. 12/29/00), 775 So.2d 1252, 1259, aff'd, 01-876 (La.4/3/02), 817 So.2d 1107. Similarly, the scope-of-protection element of the duty-risk analysis involves whether the risk of harm to the plaintiffs falls within the scope of protection afforded by the duty at issue. Id. We find that the petition of Ms. Hodges and Mr. McCoy fails to state a cause of action as to either of these two elements.

Ms. Hodges and Mr. McCoy do not assert that Navarre Chevrolet did not use the form provided by DPS for registration under La.R.S. 32:862(B)(2), but rather that the form provided for a private signature execution and not an affidavit execution. However, there is nothing to suggest that had the form been promulgated for Mr. Taylor’s signature under oath, he would not have signed the form, and had he done so, the vehicle would still have been sold to him by Navarre Chevrolet. Thus, DPS’s breach of duty as asserted in the petition fails to establish a cause of action satisfying the cause-in-fact and scope-of-protection elements of the duty-risk analysis.

Reaching the conclusion that Ms. Hodges and Mr. McCoy fail to state a cause of action for negligence under the duty-risk analysis precludes any need to consider the effect of the statutory prohibition against liability as set forth in La.R.S. 32:862(H) and renders moot DPS’s assignment of error addressing the trial court’s denial of its peremptory exception of prescription.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s grant of the peremptory exception of no cause of action dismissing the claims of Thelma M. Hodges and Marcus J. McCoy against the State of Louisiana, through the Department of Public | KISafety and Corrections. We assess all costs of this appeal to Thelma M. Hodges and Marcus J. McCoy.

AFFIRMED.

      . The statute provides other ways of meeting the liability responsibility generally covered by the liability insurance policy, but they are not applicable to the matter now before us.

      . While that statute gives the responsibility for adopting the appropriate forms to be used in conjunction with proof of compliance to the "commissioner," La.R.S. 32:851(1) states that for the purpose of the Motor Vehicle Safety Responsibility Law, “[c]ommissioner means the Department of Public Safety and Corrections.” Thus, we will continue to refer to DPS as the party at interest in this litigation.

      . While there is no statutory definition that covers all forms of affidavits, Black's Law Dictionary defines an affidavit as "a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths, such as a notary public.” Black’s Law Dictionary 62 (8th ed.2004).


text:
    Ronald BROOKS, et al. v. Dr. John Scott SIBILLE, et al.
    Nos. 13-1015, 13-1016.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Terry L. Rowe, Terry L. Rowe & Associates, Lafayette, LA, for Defendants/Ap-pellees, State Farm Fire & Casualty Company, Dr. John Scott Sibille, and Paulette Sibille.
    H. Edward Sherman, H. Edward Sherman, APLC, New Orleans, LA, for Plaintiffs/Appellants, Ronald Brooks, Jennifer Chavis, Jonas Chavis, Jamesha Wilson, and Jaliyah Wilson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Chief Judge.

|, Ronald Brooks and Jennifer Chavis, the parents of two minors who drowned in a residential pond, individually brought wrongful death and survival actions against the property owners, John and Paulette Sibille, and their insurer. After the cases were consolidated, the defendants filed a motion for summary judgment, arguing that the plaintiffs failed to establish the element of duty or that the pond constituted an attractive nuisance. Finding no genuine issue of material fact, the trial court granted the defendants’ motion for summary judgment. For the following reasons, we affirm the trial court’s judgment.

I.

ISSUE

We shall consider whether the trial court erred in granting defendants’ motion for summary-judgment.

II.

FACTS AND PROCEDURAL HISTORY

This cáse arises out of an accident on May 24, 2008, which resulted in the drowning deaths of two twelve-year-old boys, Justin Dean and Jerome Chavis. On the morning of the incident, Jennifer Chavis left her two minor children, Jerome Chavis and Jonas Chavis, in the care of her mother while she attended a funeral. Jennifer instructed her children that they were under the care of their grandmother and were not to go on other people’s land without permission.

Later that morning, Jerome and Jonas were given permission to walk to the nearby convenience store. During the trip, they met two minor brothers, | ¿Trevor and Tanner Thompson, as well as Justin Dean. The five boys decided to go meet another friend, twelve-year-old Blake Palmer. On the way, the boys met Blake riding his go-cart. Blake had received permission from his mother, Bridgette Foster, to travel to the property of Dr. John Scott Sibille and Paulette Sibille, to see if their son, Ross Sibille, was available to play. If Ross was not home, Blake was instructed to come back home. After encountering the five boys, Blake invited them to ride in his go-cart around the neighborhood.

After go-carting, the boys entered the Sibilles’ property which fronted a local pond. On this particular day, the Sibilles were not home and had no knowledge that Blake or any other person would be on the property. In the process of washing off mud from go-carting, Jerome Chavis and Justin Dean entered the pond and accidentally drowned. There were no signs around the pond warning against swimming or trespassing. In the past, however, Dr. Sibille had warned Blake never to go fishing or swimming in the pond without adult supervision.

Plaintiffs Robert Brooks, the father of Justin Dean, and Jennifer Chavis, the mother of Jerome Chavis, individually filed wrongful death and survival actions against the Sibilles and their insurer, State Farm Fire & Casualty Insurance Company, alleging that the pond constituted an attractive nuisance and the Sibilles were negligent in failing to post visible warning signs regarding the dangerous depth of the pond or notify the parents of Blake Palmer that Blake should not to trespass on their property. After the cases were consolidated, defendants filed a motion for summary judgment, contending that the plaintiffs failed to establish that the Si-billes’ owed the minors a duty of care as property owners as the pond did not constitute an attractive nuisance. In opposing the motion, the plaintiffs argued that a jury could reasonably infer from the facts that jsthe pond constituted an unreasonable risk of harm giving rise to a duty to warn. In support of their opposition, the plaintiffs submitted affidavits from two clinical psychologists who attested that Justin Dean and Jerome Chavis may not have had the requisite level of intelligence and judgment to appreciate the objective risk of the pond. The trial court granted the defendants’ motion for summary judgment, reasoning that the pond was an open and obvious danger that did not amount to an attractive nuisance giving rise to a duty to warn.

III.

LAW AND DISCUSSION

Standard of Review

We review a grant of summary judgment de novo “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether a genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law.” Supreme Servs, and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 684, 638. In our review, we shall consider the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-moving party. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764. If the mover will not bear the burden of proof at trial on the matter, then he must only present evidence showing a lack of factual support for one or more essential elements to the non-mover’s case. La. Code Civ.P. art. 966(C)(2); Simien v. Med. Protective Co., 08-1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-1488 (La.10/2/09), 18 So.3d 117. Once the mover has made a prima facie case that the motion should be granted, the non-mover must then present evidence sufficient to show a genuine | ¿issue of material fact. Id. If the non-mover fails to present some evidence that he might be able to meet his burden of proof at trial, the motion should be granted. Id.

Defendant’s Motion for Summary Judgment

The trial court granted the defendants’ motion for summary judgment on the grounds that the plaintiffs failed to establish the essential element of duty to support their negligence claims. The determination of whether a duty exists is a question of law that may be properly decided by summary judgment. Seaman v. Howard, 98-1492 (La.App. 3 Cir. 6/2/99), 743 So.2d 694, writ denied, 99-1901 (La.10/29/99), 748 So.2d 1165. In negligence claims against landowners or custodians, the duty of care is “to discover any unreasonably dangerous condition or use of [the controlled] premises and either correct the condition or warn of its existence.” Collins v. Whitaker, 29,324, p. 3 (La.App. 2 Cir. 4/2/97), 691 So.2d 820, 823. It follows that in order to impose a duty on landowners or custodians, there must be a defect or unreasonable risk of harm on the premises. The second circuit has provided guidance on determining what constitutes an unreasonable risk of harm:

When determining whether a risk is unreasonable, a court is to balance the likelihood and magnitude of the harm and the utility of the thing, while also taking into account a broad range of social, moral, and economic factors including the cost to the defendant of avoiding the risk and the social utility of the plaintiffs-conduct when the accident occurred. Justice and social utility are guideposts, with consideration given to individual and societal rights and obligations.

Wiley v. Sanders, 37,077, p. 3 (La.App. 2 Cir. 6/13/03), 850 So.2d 771, 774, writ denied, 03-1986 (La.10/31/03), 857 So.2d 487 (citations omitted).

I.Jf no unreasonable risk of harm exists, then the landowner or custodian owes a duty of care of a reasonable man, which amounts to “a duty to act as a reasonable man and to guard against unreasonable risks of injury to guests.” Id. at 777; see also St. Hill v. Tabor, 542 So.2d 499 (La.1989).

The Wiley court further held that in a drowning case involving a pond on a property owner’s land, the pond did not constitute an unreasonable risk of harm, and thus, the property owner did now owe a duty of care to the drowning victim. The court reasoned that while the pond was murky and did not have any markers or warnings regarding pond depths or any fencing, “[t]he only danger presented by the pond was that it contained water” and “[s]uch a danger would have been open and obvious.” Wiley, 850 So.2d at 776.

Here, while defendants had garde over the pond, the only potential danger was the presence of murky water giving rise to undefined depths. Following the reasoning of the Wiley court, these are open and obvious dangers that do not constitute unreasonable risks of harm. As such, the defendants did not owe a duty to warn against such hazards.

Since the pond did not constitute an unreasonable risk of harm, the question now becomes whether the defendants breached a duty to act reasonably. “The test to determine whether a breach of a landowner’s duty has occurred is whether, in the management of his property, he has acted as a reasonable man in view of the probability of injury to others.” Id. at 777; see also Shelton v. Aetna Cas. and Sur. Co., 334 So.2d 406 (La.1976). Here, there is no evidence to support the claim that the defendants breached a duty to act reasonably. While there' is evidence to suggest the drowning victims were below average intelligence to potentially deduce the dangers of the pond, these facts are not material as the | (¡defendants were not acquainted with these minors and would not reasonably expect them to trespass and swim in the pond without supervision. The defendants were not home during the incident and had no knowledge that Blake Palmer would visit the property or bring other minors with him. To charge the defendants with the burden of guarding against every potential individual of varying intelligence trespassing and drowning goes beyond reasonable levels of justice and social utility.

The plaintiffs further cannot recover under the theory that the defendants failed to guard against an attractive nuisance in the pond. A body of water does not constitute an attractive nuisance “where the danger is not hidden or concealed and there are no unusual circumstances which render [the body of water] peculiarly attractive to young children.” Slaughter v. Gravity Drainage Dist. No. 4, 145 So.2d 50, 55 (La.App. 3 Cir.1962). Without such unusual circumstances, a landowner has no duty to protect against the danger and “has the right to presume that for every child under the age of discretion, there is someone of mature judgment on whom rests the special duty and responsibility for the safety of the child.”

Id. As discussed above, the plaintiffs have presented no evidence indicating that the pond possessed any unusual condition rendering it peculiarly attractive to children. As such, the pond did not constitute an attractive nuisance.

Finally, plaintiffs assert that the defendants breached a duty to notify the mother of Blake Palmer that Blake repeatedly trespassed on their property. We are unable to identify any codal, statutory, or jurisprudential authority to support such a duty or burden.

17Given the evidence presented, the plaintiffs have failed to show that there is a genuine issue of material fact upon which they could conceivably succeed at trial. As such, we affirm the trial court’s granting of defendants’ motion for summary judgment.

IV.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s granting of the defendants’ motion for summary judgment. Costs of the appeal are assessed to the appellants, Robert Brooks and Jennifer Chavis.

AFFIRMED.