author: LOLLEY, J.

text:
    STATE of Louisiana in the Interest of L.P., Plaintiff-Appellee v. Lance Childress ELMORE, Defendant-Appellant.
    No. 47,908-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.
    N. Dawn Harper, for Appellant.

      Jerry L. Jones, District Attorney, Sheri Lynn Stapleton, Jessica Welch Williams, Assistant District Attorneys, for Appellee.
    Before CARAWAY, LOLLEY and PITMAN, JJ.
   LOLLEY, J.

|; Lance Elmore appeals a judgment from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, setting his child support obligation for the minor child, L.P., in the amount of $570.00 per month plus administrative costs. For the following reasons, we affirm the trial court’s judgment.

Facts

This matter started as a petition to establish paternity and support filed by the District Attorney’s office for the Fourth Judicial District on behalf of Danika Profit, mother of the minor child, L.P. As to the issue of paternity, a preliminary default was ultimately taken against Lance, decreeing him to be L.P.’s father, and judgment was entered against him. Lance does not appeal that judgment and does not deny he is the father of L.P.

Subsequently, a rule for child support was filed by the State. A hearing was held on September 14, 2010, without Lance present, and an interim order of monthly support in the amount of $616.00 was ordered. A bench warrant was issued for Lance’s arrest, and he appeared in court on September 17th for the first time. At that time, the trial court recalled the bench warrant and again set the amount of interim child support at $616.00 per month, with an immediate income assignment and medical support for L.P. effective August 10, 2010. Ultimately, the child support rule was considered by the hearing officer on November 19, 2010, and child support 12for L.P. was set at $616.00 per month for the period of August 10, 2010 through October 31, 2010, and $225.00 per month thereafter.

In January 2012, the State filed a rule to modify child support judgment. It claimed that Lance had been paying $225.00 per month as ordered, but that his income had increased, so the State sought an increase in Lance’s child support obligation for L.P. In February 2012, the rule was considered by the hearing officer, and the support amount was modified, increasing it to $570.00 per month with an arrear-age of $2,384.62. Lance filed a motion to rehear the matter. At the rehearing considered before a judge of the trial court, Lance sought a decrease in payments and the State sought an increase. After considering the evidence before it, the trial court denied both requests, leaving the amount of support at $570.00 per month, plus administrative fees. Lance appeals the trial court’s judgment.

Discussion

Lance only brings one assignment of error on appeal. He argues that the current amount of child support, $570.00 per month, was made in error, because the calculation used by the trial court included his overtime pay, which he maintains is seasonal and extraordinary and not part of his gross income. Lance acknowledges that in order to set child support, the trial court must consider the Louisiana Child Support Guidelines and must initially determine the gross income of the parties. He notes that under La. R.S. 9:315 C(S) “gross income” includes “the income from any source,” but does not include “[e]x-traordinary overtime including but not limited to income attributed to seasonal work regardless of its percentage of gross Lineóme when, in the court’s discretion, the inclusion thereof would be inequitable to a party.” See La. R.S. 9:815 C(3)(d)(iii).

According to Lance, he is a log-truck driver and when the weather permits overtime, he is able to work 70-75 hours a week. However, he maintains that during “rainy” periods, he is only paid for 40 hours per week, an amount he is guaranteed. Lance maintains that he drives all over the state of Louisiana, which he characterizes in brief as being second in the nation in precipitation. Thus, he argues, his overtime is extraordinary and seasonal, and the trial court abused its discretion including his overtime as part of his gross income in calculating child support. On appeal, Lance outlines what he submits is the proper calculation of child support, claiming he should only be obligated to pay $339.65 per month. We disagree.

When reviewing an award of child support, an appellate court will not overturn the trial court’s factual determinations unless, in light of the record taken as a whole, they are manifestly erroneous or clearly wrong. Stephenson v. Stephenson, 37,323 (La.App.2d Cir.05/14/03), 847 So.2d 175. Here, the trial court was not clearly wrong in the conclusion reached based on the facts, primarily because Lance simply failed to prove that his overtime pay was indeed extraordinary.

Notably, the amount of the ultimate child support obligation provided for in the trial court’s judgment was initially calculated by the hearing officer in February 2012. At that first hearing to modify the child support, Lance appeared empty-handed and offered no proof of his income. Proof of Lance’s income from his employer at the time, Perferox, had to be provided |4to the hearing officer from the Louisiana Department of Labor. The State correctly points out that La. R.S. 13:3712.1 provides:

Notwithstanding the provisions of R.S. 13:3712, whenever a copy of a self-authenticating report from the Louisiana Workforce Commission, or from any state or federal reporting agency, is offered in evidence in any child or spousal support proceeding, it shall be received by the court as prima facie proof of its contents.

Thus, at that time, the hearing officer properly relied upon the only income records it had for Lance — those provided from the Department of Labor. Using the income amounts set forth in those records ($3,256.00 per month) along with the additional income Lance received from the Louisiana National Guard ($245.51 per month plus one $1,300 annual payment), the hearing officer properly set Lance’s child support obligation at $570.00 per month. At the subsequent rehearing of the matter before a judge at the trial court, Lance offered as evidence of his income one pay stub from a new employer for the single month of May. That pay stub evidently showed an income of $4,742.06. It was at the rehearing that Lance claimed a portion of his income should not be included in his gross income, because it was seasonal overtime pay only.

Here, Lance did not provide any evidence other than his self-serving testimony that his overtime was perhaps extraordinary because of its seasonal nature. Although he argues that his overtime was limited during the described “rainy season,” because he is prevented from driving, Lance failed to present evidence to prove his assertion. For instance, he could have provided a policy manual, rules and regulations from his employer supporting his claim that he is not paid overtime during a so-called “rainy ^season,” or even called a witness from his employer to state the policy for overtime. He offered no such evidence — Lance simply failed to show that a portion of his pay was attributable to extraordinary overtime and exempt from inclusion in calculating gross income. Therefore, the trial court clearly was within its discretion in not decreasing the child support amount calculated by the hearing officer based on the evidence before it. The child support obligation calculated at $570.00 per month was not in error.

Lance also has a younger child for whom he pays child support pursuant to a Vernon Parish trial court order. Lance maintains he should have received “credit” for the support payment for that child when L.P.’s support was calculated. In reaching a child support amount Lance maintains is proper, he reduces his income by the amount of child support he was ordered to pay in the Vernon Parish order. Notably, Lance has not raised this issue specifically as an assignment of error. Nonetheless, in considering his argument, we conclude that the trial court was within its discretion in not deviating from the Child Support Guidelines by allowing Lance credit for his other child support obligation. See La. R.S. 9:315.1.

Conclusion

For the foregoing reasons, the judgment of the trial court in favor of the State of Louisiana in the Interest of L.P. is affirmed. All costs of this appeal are assessed to Lance Childress Elmore.

AFFIRMED.

      . The record shows that service was made on "Corkie” Elmore, although Lance claims his mother's name is "Sandra.” Lance makes some issue on appeal regarding the various forms of service on him throughout the proceedings; however, he never raised the issue at the trial court.

      . Obviously, in the event Lance is able to provide evidence that his overtime pay is in indeed extraordinary, he is not foreclosed from seeking a reduction in his child support obligation in the future.


source: Caselaw Access Project

license: Public Domain

text:
    Erma Moody AMOS, Plaintiff-Appellee v. Grover AMOS, III, Defendant-Appellant.
    No. 47,917-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Daniel Frazier, Jr., Baton Rouge, LA, for Appellant.
    Ronald J. Miciotto, Shreveport, LA, for Appellee.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   LOLLEY, J.

h Grover Amos, III, appeals a judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, which awarded his former spouse, Erma Moody Amos, $1,442.42 a month in interim spousal support. For the following reasons, we reverse the trial court’s judgment.

Facts

Grover and Erma were married in Shreveport, Louisiana, in April 2009. Grover, a resident of New Orleans, maintained his south Louisiana domicile, and Erma maintained her residence in Shreveport. The couple evidently never lived together during their marriage, but maintained separate households and employment in their respective cities.

In September 2011, Erma filed a petition for divorce, seeking an end to their marriage as well as interim and permanent spousal support from Grover. Pursuant to an interim order dated February 6, 2012, Erma was awarded support in the amount of $500.00 per month from February 10 until the trial court could further consider the matter. From the order, it appears that the parties reached that amount by agreement in an in camera conference with the trial court judge.

In March, the parties appeared before the trial court to consider the issue of interim support. Grover’s attorney of record, from New Orleans, did not appear. He had informed the trial court that morning that he had car trouble and would not make it to Shreveport. In deciding to proceed with the hearing, the trial court noted that Grover had obtained two prior continuances, and the matter could not be further delayed. Thus, Grover was unrepresented at the hearing. After considering testimony from both |2Erma and Grover, the trial court awarded her interim spousal support in the amount of $1,442.42 a month retroactive to the date of filing her petition, with a credit for $1,000.00 Grover had already paid pursuant to the interim order. This appeal ensued.

Discussion

On appeal, Grover argues that the trial court erred in awarding spousal support to Erma without receiving evidence regarding the parties’ standard of living and living arrangements during the marriage. We agree.

The statutory grounds for interim spousal support are La. C.C. arts. Ill and 113. Specifically, La. C.C. art. 113 states:

Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce. If a claim for final spousal support is pending at the time of the rendition of the judgment of divorce, the interim spousal support award shall thereafter terminate upon rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown.

In a proceeding for divorce, the trial court may award an interim periodic support allowance to a spouse based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. La. C.C. arts. 111 and 113; Brown v. Brown, 44,989 (La.App.2d Cir.01/27/10), 31 So.3d 532. The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of time of adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. Id,.; Hitchens v. Hitchens, 38,339 (La.App.2d Cir.05/12/04), 873 So.2d 882. A spouse’s right to claim interim periodic support is grounded in the statutorily imposed duty on spouses to support each other during marriage and thus provides for the spouse who does not have sufficient income for his or her maintenance during the period of separation. McAlpine v. McAlpine, 1994-1594 (La.09/05/96), 679 So.2d 85; Brown, supra. The needs of the claimant spouse have been defined as the total amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation, limited only by the payor spouse’s ability to pay. Brown, supra.

In order to demonstrate need for interim periodic spousal support, the claimant spouse has the burden of proving that he or she lacks sufficient income, or the ability to earn a sufficient income, to maintain the standard of living that he or she enjoyed during the marriage. Brown, supra; Clark v. Clark, 34,314 (La.App.2d Cir.11/01/00), 779 So.2d 822, writ denied, 2000-3196 (La.01/12/01), 781 So.2d 563, citing Thomey v. Thomey, 33,000 (La.App.2d Cir.04/07/00), 756 So.2d 698.

Once the claimant spouse has established need, the court must examine the ability of the payor spouse to provide support. Brown, supra. If the needs of the claimant spouse surpass the ability of the other spouse to 14pay, interim spousal support should be fixed at a sum that will as nearly as possible be just and fair to all parties involved. Id. In assessing a spouse’s ability to pay, the court must consider his or her means. “Means” includes any resource from which the wants of life may be supplied, requiring an assessment of the entire financial condition of the payor spouse. Brown, supra. “Entire financial condition” is not limited to income, but also includes any resource from which his or her needs can be supplied, including income from labor or services performed, physical property, income from such property, and a spouse’s earning capacity. See Kirkpatrick v. Kirkpatrick, 41,851 (La.App.2d Cir.01/24/07), 948 So.2d 390.

The trial court is vested with much discretion in determining an award of interim spousal support. Such a determination will not be disturbed absent a clear abuse of discretion. Brown, supra; Kirkpatrick, supra. An abuse of discretion will not be found if the record supports the trial court’s conclusions about the needs of the claimant spouse or the means of the payor spouse and his or her ability to pay. Kirkpatrick, supra; Clark, supra; Thomey, supra.

Here, Erma failed to meet her burden of proving her entitlement to interim spousal support. Notably, the trial court considered only the income of the parties to determine that Grover was obligated to pay $1,442.42 a month to Erma. Each party submitted as evidence an affidavit of income and expenses. Although Grover’s affidavit claimed a gross monthly income of $3,731.62, he testified (somewhat confusingly) to having an annual Lineóme of $50,000.00 as a postal worker. Despite his sworn affidavit provided to the court stating otherwise, the trial court used that stated amount to determine his monthly income at $4,166.66. That is where the trial court ended its inquiry, and that is where the trial court abused its discretion. Clearly, in addition to establishing the income of the parties and the moving parties’ need, it is incumbent upon the moving party to prove his or her standard of living during the marriage. Erma simply failed to do so. Although she testified as to needing interim support in order to maintain her standard of living, there was absolutely no evidence as to what that standard of living was. Notably, in this very unique marital relationship where the husband and wife never lived together, it would appear that the parties maintained completely separate lives and households during their marriage. There was no evidence that Grover contributed anything to Erma’s standard of living or that her standard of living was altered by the end of their marriage. Further, it was also not abundantly clear whether Grover even had the ability to pay support — Erma surely did not meet her burden of proving that he had that ability. Considering the complete lack of evidence in support of the trial court’s judgment, we conclude that the trial court abused its discretion in determining that Erma was entitled to interim spousal support.

| ^Conclusion

For the foregoing reasons, the judgment of the trial court in favor of Erma Moody Amos is reversed, and all costs of this appeal are assessed to her.

REVERSED.

      . Initially, Grover filed a writ application with this Court. However, after determining that the judgment was final on the incidental matter, we remanded the matter to the trial court for the purpose of perfecting the appeal.

      . Our determination pretermits consideration of Grover’s additional assignments of error.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Anthony Dewayne TILLMAN, Appellant.
    No. 47,921-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.
    Anthony D. Tillman, Pro se.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, Cecil P. Campbell, II, Darius Q. Henderson, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and DREW, JJ.
   BROWN, Chief Judge.

| initially charged by bill of information with attempted second degree murder, defendant, Anthony Dewayne Tillman, pled guilty to attempted manslaughter, a violation of La. R.S. 14:27 and 14:31. He was subsequently sentenced to 19 years’ imprisonment at hard labor. Defendant appealed. We affirm defendant’s conviction and sentence.

Discussion

Defendant asserts that his 19-year hard labor sentence is excessive. According to defendant, the trial court primarily focused on his prior criminal history in determining his sentence. In doing so, the trial court failed to address the extent that the sentence would entail a hardship upon him or his family. Defendant notes that he accepted responsibility for his actions, expressed remorse, and apologized for his actions. Defendant points out that he did not intend to kill the victim. According to defendant, mitigating factors should have been given more consideration by the trial court.

A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166. The trial judge is given wide discretion in imposing sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence 1 aof a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7.

The maximum penalty for manslaughter is 40 years’ imprisonment at hard labor. La. R.S. 14:31(B). The maximum penalty for attempted manslaughter is 20 years’ imprisonment at hard labor. La. R.S. 14:27(D)(3).

During the sentencing hearing, the trial judge carefully noted the information contained in the PSI as well as the factors set forth in La. C. Cr. P. art. 894.1 in determining defendant’s sentence.

On December 28, 2010, at approximately 2:00 a.m., Cocelia Davis was traveling east on Interstate 20 from Shreveport to Bossier City. Ms. Davis had been staying at her father’s house in Shreveport because she and defendant, her boyfriend at the time, had a confrontation, and defendant had threatened to kill her. Ms. Davis had to go to work so she decided to stop by her home in Bossier City prior to reporting to her job that day.

As she was driving on 1-20, Ms. Davis noticed a vehicle pull up beside her; she saw that defendant was driving that car. At that time, defendant rammed his car into Ms. Davis’s vehicle. Ms. Davis exited 1-20 at the Traffic Street exit in Bossier City; defendant also exited and rammed Ms. Davis’s car two or three more times. The final time defendant rammed into Ms. Davis’s car, it flipped onto its side. Ms. Davis was able to get out of her car and run to the Horseshoe Casino where she told casino security that her boyfriend, defendant, was trying to kill her. Horseshoe Casino security contacted the Bossier City Police.

|sThe officers went to the Traffic Street exit at 1-20. There, they found Ms. Davis’s disabled vehicle near the fence at Red River Chevrolet. Another disabled, damaged vehicle was located a short distance away. Ms. Davis advised the officers that defendant had been driving the second vehicle. The officers also noted that a utility pole had been knocked down.

Thereafter, Detective B.J. Sanford found defendant at a nearby Valero station. Defendant agreed to go to the Bossier City Police station to talk -with Det. Sanford. During the interview, defendant admitted to Det. Sanford that he rammed Ms. Davis’s vehicle, but denied that he intended to kill her. According to defendant, he was just trying to get Ms. Davis’s attention.

A bill of information was filed charging defendant with attempted second degree murder. A jury was impaneled before defendant and the state reached a plea agreement. On September 13, 2011, pursuant to the agreement, defendant was allowed to plead guilty to the responsive charge of attempted manslaughter. The state agreed not to file a habitual offender bill of information against defendant, and another pending charge was dismissed.

Defendant filed a motion to withdraw his guilty plea which the trial judge denied. At the sentencing hearing, the trial judge noted that he had reviewed the presen-tence investigation report and the facts of the case. The judge noted that Ms. Davis told police that there had been a long history of domestic violence between her and defendant and that the day before the | incident, defendant had called her and told her that he was going to kill her. The judge found that defendant’s version of the events, that he accidentally bumped the victim’s vehicle, was “totally impossible,” and it showed that defendant lacked remorse for his actions. The trial judge considered defendant’s use of a dangerous weapon during the commission of the crime. The trial judge reviewed defendant’s criminal history, which he characterized as “extensive.” Defendant had previous felony convictions for attempted simple robbery in 2000 and possession with intent to distribute marijuana in 2006. Additionally, defendant had numerous misdemeanor and felony arrests. Defendant’s misdemeanor convictions included domestic abuse battery and criminal mischief. The trial judge noted that defendant was arrested for felony stalking while on bond for the instant charge and that this charge involved the same victim.

The trial court noted defendant’s social history. He was 33 years old, had a ninth grade education and a spotty work history. The trial judge also considered the significant economic loss by the victim.

The mitigating factors included the fact that the victim was not seriously injured and defendant’s prior completion of two probationary periods.

[¿Given defendant’s history, the facts of the case, and the reduction in his potential sentencing exposure, this 19-year sentence is not excessive by constitutional standards. While this sentence is in the upper range for this offense, there is no showing that the trial court abused its discretion.

Conclusion

For the reasons set for above, defendant’s conviction and sentence are affirmed.

      . Defendant was initially charged with attempted first degree murder.

      . Once defendant was sentenced, the state indicated that it was entering a nolle prosequi with regard to the pending charge of felony stalking.

      . Damage to the victim's vehicle and costs of impoundment were approximately $2,700. Additionally, the City of Bossier was owed $2,000 for the damaged light pole.


author: JOY COSSICH LOBRANO, Judge.

text:
    James H. MURUNGI v. TOURO INFIRMARY, Lee B. Hankins, and Raquel S. Margulis.
    No. 2012-CA-0213.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 1, 2013.

      James H. Murungi, Mandeville, LA, Plaintiff/Appellant/In Proper Person.
    Leslie W. Ehret, Peter E. Sperling, Suzanne M. Risey, Frilot, Partridge, Kohnke & Clements, L.L.C., New Orleans, LA, for Defendant/Appellee, Touro Infirmary.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| plaintiff, James Murungi, appeals the January 3, 2012 trial court judgment, denying his motion for summary judgment, and granting the motion to dismiss filed by defendant, Touro Infirmary. The judgment dismissed plaintiff’s case with prejudice, and also decreed that plaintiffs second motion to compel and plaintiffs ex parte motion to show cause why Touro’s November 2, 2011 letter to the court and alleged affirmative defenses should not be stricken were rendered moot. For reasons that follow, we affirm.

On November 29, 2010, plaintiff filed suit against Touro Infirmary, Lee B. Han-kins and Raquel S. Margulis, alleging claims arising pursuant to La. R.S. 23:967, the Louisiana Whistleblower Statute. This statute provides protection to an employee against reprisal from an employer for reporting or refusing to participate in illegal work practices. Beard v. Seacoast Elec., Inc., 2006-1244, p. 3 (La.App. 4 Cir. 1/24/07), 951 So.2d 1168, 1170. On April 26, 2011, Touro filed a motion to compel answers to first interrogatories and first requests for production of documents, which were propounded on plaintiff on February 24, 2011. In this | .¿motion, Touro asserted that plaintiff neither answered nor objected to the discovery requests within the delays allowed by law and did not ask for an extension of time to respond. On June 13, 2011, the trial court granted Touro’s motion to compel, and ordered plaintiff to provide responses to Touro’s discovery requests by July 5, 2011.

On August 9, 2011, Touro filed a second motion to compel answers to its first interrogatories and first requests for production of documents. In this motion, Touro referenced the trial court’s order of June 13, 2011, ordering plaintiff to provide responses to Touro’s discovery requests by July 5, 2011. Touro asserted that on July 6, 2011, plaintiff provided his responses to the discovery requests, but refused to answer several of the requests and/or provided deficient answers to other requests. On July 15, 2011, Touro wrote to plaintiff notifying him that his answers to the discovery requests were deficient. Counsel for Touro stated in the motion that she asked plaintiff to contact her before July 22, 2011 for a Rule 10.1 discovery conference to discuss the deficiencies. However, plaintiff failed to contact counsel for Touro regarding the Rule 10.1 discovery conference and has not provided supplemental discovery answers. The trial court issued a rule for plaintiff to show cause on September 23, 2011 why he should not be ordered to respond to Touro’s second motion to compel.

After several continuances, a hearing on Touro’s second motion to compel was held on October 21, 2011. Following that hearing, the trial court rendered | ¡judgment on November 2, 2011, granting Touro’s second motion to compel and ordering that the plaintiffs responses and signed authorization forms permitting the release of certain documents were to be provided to Touro no later than 14 days from the date of the hearing, or by November 4, 2011. In the judgment, the trial court stated that plaintiffs failure to respond to these discovery requests and submit signed authorizations could result in the dismissal of his case.

On November 30, 2011, Touro filed a motion to dismiss plaintiffs lawsuit, asserting that plaintiff had ignored the trial court’s November 2, 2011 order to submit responses and signed authorizations by November 4, 2011. Touro argued that pursuant to La. C.C.P. article 1471(A)(3), plaintiffs case should be dismissed with prejudice. Following a hearing on December 16, 2011, the trial court rendered judgment on January 3, 2012, granting Touro’s motion to dismiss, and dismissing plaintiffs case with prejudice, with each party to bear his or its own costs. In that same judgment, the trial court denied plaintiffs motion for summary judgment, finding that summary judgment was inappropriate because the issues argued by plaintiff in his motion were factual disputes. The trial court also decreed that two motions filed by plaintiff against Touro were rendered moot by the decision to dismiss plaintiffs case. Those two motions were a second motion to compel and an ex parte motion to show cause why Touro’s November 2, 2011 letter to the court and alleged affirmative defenses should not be stricken from the record. Plaintiff now appeals the judgment of January 3, 2012.

|4On appeal, the plaintiff argues that the trial court improperly dismissed his case with prejudice. Plaintiff also alleges misconduct by defense counsel during the discovery process, but those allegations are completely unsubstantiated by the record.

Touro’s motion to dismiss was based on La. C.C.P. article 1471(A)(3), which states as follows:

A. If a party or an officer, director, or managing agent of a party or a person designated under Article 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1464 or Article 1469, the court in which the action is pending may make such orders in regard to the failure as are just, and among others any of the following:
⅜ ⅜ ⅝ ⅝ ⅝ ¾:
(3) An order striking out pleadings or parts- thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

In At Your Service Enterprises, Inc. v. Swope, 07-1620, p. 8 (La.App. 4 Cir. 1/14/09), 4 So.3d 138, 143, this Court addressed the sanction of dismissal for failure to comply with court-ordered discovery, as follows:

“There is a distinction between the sanctions available for failure to comply with discovery and the sanctions available for disobedience of court ordered discovery.” Medical Review Panel Proceedings of Peter v. Touro Infirmary, 2005-0317, p. 4 (La.App. 4 Cir. 7/6/05), 913 So.2d 131, 134 (emphasis added). “Refusal to comply with court ordered discovery is a serious matter, and trial judges must have severe sanctions available to them to deter litigants from flouting discovery orders.” Id. (citing Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199, 203).
| .^Dismissal is a severe penalty, however, and should be imposed as a last resort, and only after the litigant has been afforded the opportunity to be heard. Id. Dismissal is appropriate when a party is aware that noncompliance with discovery requests will result in a dismissal. Raspanti v. Litchfield, 2005-1512, p. 10 (La.App. 4 Cir. 11/21/06), 946 So.2d 234, 241 (quoting Helm v. Mervyn’s Dep’t Store, 97-0547 (La.App. 4 Cir. 8/20/97), 699 So.2d 129, 131). Finally, when a plaintiff’s claims are dismissed pursuant to La.Code Civ. Proc. art. 1471, an inquiry should generally be made into whether the noncompliance was associated with willfulness, bad faith or fault of the party, and not merely the attorney. Raspanti, 05-1512, p. 10, 946 So.2d at 241.

A trial court has much discretion in imposing sanctions for failure to comply with discovery orders, and its ruling should not be reversed absent an abuse of discretion. Hutchinson v. Westport Ins. Corp., 04-1592, p. 2 (La.11/8/04), 886 So.2d 438, 440.

The record shows that the plaintiff, who has represented himself throughout this litigation, has demonstrated a pattern of willful refusal to adequately and timely respond to discovery requests propounded on him by Touro. The trial court granted two motions to compel discovery filed by Touro, and ordered plaintiff to submit responses to those discovery requests. Plaintiff was present in court for both the June 3, 2011 and October 21, 2011 hearings, at which the trial court rejected plaintiff’s reasons for not complying with the discovery requests and ordered him to do so by certain dates.

At the October 21, 2011 hearing on Tou-ro’s second motion to compel, the trial court clearly conveyed to the plaintiff that his case would be dismissed if he did not provide responses to Touro’s discovery requests by November 4, 2011. When plaintiff argued that he had given Touro all of the documents asked for that were in his possession, the trial court stated that from what she could determine | fifrom the record, plaintiff had not answered all of the questions asked of him by Touro. The trial court told plaintiff that if he had an attorney representing him, she probably would have dismissed his case at that time. However, because plaintiff was representing himself, the trial court agreed to give him one more chance to comply, but stated:

But, you’ve got to answer them, or I’m going to dismiss the case. I don’t have any choice [but] to , do that. This has been since April, and it’s not fair to them.

Despite the trial court’s warning to plaintiff that he risked having his case dismissed if he did not provide responses to Touro’s discovery requests, the record shows that plaintiff failed to comply with the terms of the trial court’s November 2, 2011 order, which was rendered following the October 21, 2011 hearing.

After careful review of the record in this matter, we find no abuse of the trial court’s discretion in granting Touro’s motion to dismiss plaintiffs case with prejudice. Because the granting of Touro’s motion to dismiss resulted in the dismissal of plaintiffs case in its entirety, we also find no abuse of discretion in the trial court’s dismissal as moot of plaintiffs second motion to compel and motion to strike Touro’s November 2, 2011 letter to the court.

For the reasons stated above, the trial court judgment is affirmed.

AFFIRMED

      . Louisiana District Court Rules.

      . Plaintiff’s brief does not include any arguments regarding the trial court’s denial of his motion for summary judgment. Issues not briefed are deemed abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4.


author: STEPHEN J. WINDHORST, Judge.

text:
    Karen WHITE and Christopher White v. SELECT SPECIALTY HOSPITAL.
    No. 12-CA-611.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.
    Rehearing Denied April 8, 2013.

      Timothy K. Lamy, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Lawrence E. Chehardy, David R. Sherman, Julian R. Murray, Jr., Glenn S. New-bauer, Rebecca J. Beck, Attorneys at Law, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

[^Defendant, East Jefferson General Hospital (“EJGH”), appeals from a ruling of the trial court finding it liable for injuries sustained as a result of a “slip and fall” type accident on its property. For the reasons that follow, we affirm the decision of the trial court.

Plaintiff Karen White was employed by Nurse First, LLC as an agency nurse and was assigned to work at Select Specialty Hospital (“SSH”) on March 17, 2007. SSH leased property from EJGH, specifically the 5th floor of its hospital building. On March 17th, Ms. White sustained injury when she slipped, on two separate occasions, on water on the floor in Room 9501. Ms. White filed suit against SSH and EJGH. Thereafter, worker’s compensation carrier, Commerce & Industry Insurance Company, filed a petition for intervention.

13After a bench trial on the merits, the court found in favor of Ms. White and against EJGH as follows: medical expenses of $246,921.70; lost wages of $198,000.00; and general damages of $150,000.00. The awards were subject to assessments of comparative fault. EJGH was found to be 50% at fault, SSH was found to be 30% at fault, and Ms. White was found to be 20% at fault. The awards were further subject to payment in favor of the worker’s compensation intervenor of $230,795.25. EJGH now appeals from this finding of the trial court.

Karen White testified at trial that during 2007 she was employed by Nurse First, LLC and also Advantage. On March 17, 2007, she was assigned to Select Specialty Hospital, located on the fifth floor of East Jefferson General Hospital. She was working a 7:00 p.m. to 7:00 a.m. shift. At approximately 7:40 p.m., when she was first making her rounds, she went into Room 9501. Room 9501 was a double occupancy room and housed two patients, one of whom was under Ms. White’s care. Ms. White spoke to the first occupant, and then, when she turned to proceed to her patient, she slipped in some clear water on the floor. Her body twisted, but she caught herself and did not fall. When she slipped, she heard a loud pop in her right hip, causing injury to her hip and lower back. She also injured her shoulder when she caught the door handle to prevent herself from falling. She looked up to the ceiling and noticed that one ceiling tile was missing. She then went to the charge nurse on duty to notify him about the water on the floor and the missing ceiling tile. Ms. White testified that she did not see the water before she slipped and that there were no “wet floor” signs posted outside of the room. She further testified that the water was clear, and had no material in it. Because of the low lighting in the room, she did not see the water before she slipped in it.

Ms. White testified that she “limped” down the hall to inform the charge nurse. The charge nurse, Terrance Donnels, told her he should have put the “wet |4floor” sign down. Ms. White put the “wet floor” sign up and she and Mr. Donnels placed a blanket over the entire puddle of water. Ms. White also reported her accident to Nurse First, and asked them to send a replacement; however no one was available at that time.

Approximately 15 minutes later, Ms. White went back into Room 9501 to assess her patient. She then realized that she had forgotten her gloves and she pivoted to retrieve them. When she did, she slipped in a different puddle of clear water. She had to step over the blanket to get to where she was when she slipped. Again, she was able to catch herself before she fell, however she hurt her neck. She informed Mr. Donnels, who agreed to redistribute her patients so that she could leave after administering the 11:00 p.m. medications. Ms. White left the hospital at 12:00 a.m., after filling out an accident report.

Ms. White testified that she did not see anyone from EJGH maintenance or EJGH housekeeping at any time from her arrival at 6:45 p.m. to her departure at 12:00 a.m. She also testified that at the time of her second “slip”, she saw the missing ceiling tile pushed between the bathroom door and the wall in the room.

Mr. Kenneth Najolia, employed by EJGH, was the maintenance mechanic on duty at the time of the accident. He investigated the leak in the ceiling in Room 9501 on the date of the accident. He stated that he was called on two separate occasions that night and discovered at both times that the leaks into Room 9501 were caused by a stopped toilet, which had been stopped twice, in the room above. He stated that his shift that evening was from 2:30 p.m. until 11:00 p.m. One call occurred during the first half of his shift, and one occurred during the second half, although he was not sure of the exact times. During the first call, he observed a drip from the ceiling, and he pushed the ceiling tile up and over inside the ceiling. He observed water leaking from a toilet hub in the room on the 6th floor above, |sRoom 6639. When he went upstairs, he found water on the bathroom floor, and spilling over the toilet lid. The water was clear, with no material. He removed paper towels from the toilet, and then checked to make sure there was no further blockage. He informed the 6th floor charge nurse that there was water on the floor and to call housekeeping. He went down to the 5th floor, told the charge nurse on duty that there was water on the floor that had come from the 6th floor and to call housekeeping. He also told the 6th floor charge nurse to keep a watch because it might happen again. Mr. Najolia stated that he did not clean the water himself, nor did he post a “wet floor” sign, as these were not part of his duties as maintenance mechanic. He did not check to see if the water in Room 9501 had been cleaned up. He also did not replace the ceiling tile, but left it inside the ceiling to the side.

About an hour and a half later, Mr. Najolia received a second call about a leak from the 6th floor. He went back to Room 6639, and saw the same problem with the room, except that the water was deeper. He pulled out a second set of paper towels and then flushed to make sure the toilet was working properly. He next alerted, first, the 6th floor charge nurse and then the 5th floor charge nurse. Again, he did not clean the water or post a “wet floor” sign, nor did he return to see if the water had been cleaned.

At the trial, Mr. Najolia testified that the condition of the towels and conversation that he overheard on his first visit to Room 6639 led him to believe that the towels had been intentionally placed in the toilet, and that there was a possibility that it might happen again, which was why he told the 6th floor charge nurse to keep watch. Mr. Najolia stated that he filled out only one work form, designated an MP2. He did not write any comments on the form.

The deposition of Terrance Donnels was admitted at trial. He testified that he was employed by SSH and was the charge nurse on duty on the date of 16Ms. White’s accident. He testified that on the night of the accident, he was notified that there was some wet debris on the floor in Room 9501. He did not immediately cover the water or place a “wet floor” sign, instead he went to call maintenance. Within minutes he was alerted that Ms. White had an accident. Mr. Donnels was the only person to testify that Room 9501 had a recurring problem with wet ceiling tiles and this assertion was not borne out by the maintenance repair orders introduced into evidence. Mr. Donnels testified that the water on the floor that caused Ms. White’s accident was a two foot by one foot rectangle that contained soaked gypsum debris, although both Ms. White and Mr. Najolia testified that the water was clear. After Ms. White’s accident, Mr. Donnels put a blanket on the debris pile. He stated that he was informed of the leak between 8:00 p.m. and 9:00 p.m. and that the accident occurred about five minutes later. He spoke to Ms. White, who told him that she had slipped, but had not fallen, and that she felt pain in her lower back and hip. He then went and put out a “wet floor” sign and covered the water with a blanket. He did not recall Ms. White complaining of a second slip that night.

The deposition testimony of Robert Baker was admitted at trial. He testified that on the date of Ms. White’s accident, he was employed by SSH as both a respiratory manager and a safety officer. As a safety officer, his duties were to make sure that the environment of the unit was up to OSHA standards and DHH code, and included making sure that there were no hazards around the unit, that there were no penetrations in the walls (a fire hazard), that equipment was stored properly, and that the hallways were clear. He was also responsible for communicating with EJGH concerning safety issues. He stated that everyone was appointed to observe hazards and make sure their areas were safe, especially people in leadership positions such as charge nurses and lead therapists. In 17addition, nurses had a duty to inspect their areas and report hazardous conditions to the charge nurses.

The next day, after he received notification that someone had been hurt, Mr. Baker inspected Room 5901. He noted that one ceiling tile was missing, but that there was no hazard remaining. The ceiling tile was replaced; however to his knowledge, no other work was performed.

Mr. Roland Jordan testified that, on the date of Ms. White’s accident, he was employed by EJGH as a maintenance supervisor and that Mr. Najolia was one of eighteen people he supervised. Mr. Jordan testified that the MP2 system is a work order system to track different records of work performed by his personnel in the hospital. Mr. Jordan testified that Mr. Najolia followed proper procedure in going to the 6th floor to find the leak rather than staying in Room 9501 to warn people. It would not be unusual for there to be one MP2 for the two separate incidents. Mr. Jordan identified the MP2 sheets for Room 9501 from 2004 to 2007. The MP2 entitled “Work Order No. 0000128574” noted a water leak from Room 6639 on March 17, 2007, although the report was not closed until April 30, 2007.

After the accident, Ms. White was treated by Dr. John Clark, specializing in physical medicine and rehabilitation, who diagnosed a “pelvic floor injury” (an injury involving the ligaments of the pelvis). She was told that the only treatment was conservative, and the injury would be something she would have to live with the rest of her life. She was also seen by Dr. Kenneth Vogel, a neurosurgeon, who believed she had some spinal issues. He recommended that she undergo testing and possible surgery. In November of 2008, Ms. White went to the Laser Spine Institute, in Tampa, Florida, where she was diagnosed with a herniated disc, facet arthrosis and hypoesthesia. She underwent two minimally invasive surgeries, one on her neck and one on her back. Ms. White testified that these surgeries afforded [¡^significant, but not total, relief from pain. At the time of trial, Ms. White was still seeing Dr. Clark for treatment.

Ms. White was also treated by Dr. Marc Zimmerman, a medical psychologist. He diagnosed depression secondary to her physical condition.

Ms. White testified that she was no longer able to perform her duties as a floor nurse. She was planning to attend school to obtain her master’s degree in nursing education in order to become an instructor.

In this appeal, EJGH alleges that the trial court erred in finding liability because the evidence fails to show that either EJGH or its employee Najolia had actual or constructive knowledge of the particular puddles involved in Ms. White’s two slips. EJGH further contends that the evidence fails to show that Najolia and EJGH had a reasonable opportunity to remedy the particular puddles but failed to do so. Finally, EJGH contends that the trial court erred in its allocation of fault.

Appellate courts review factual findings utilizing the manifestly erroneous/clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). “In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous.” Buckheister v. U.S. Envtl. Services, L.L.C., 11-1148 (La.App. 5 Cir. 5/31/12), 97 So.3d 414, 420, writ denied, 12-1462 (La.10/8/12), 98 So.3d 861. One of the basic tenets of the manifest error standard of review is that “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the court of appeal is convinced that had it been the trier of fact, it would have weighed the evidence differently.” Savage v. State Farm Mut. Ins. Co., 09-852 (La.App. 5 Cir. 2/9/10), 33 So.3d 919, 922, citing Rando v. Anco Insulations Inc., 08-1163 (La.5/22/09), 16 So.3d 1065, 1087.

“However, where documents or objective evidence so contradict the witness’s story, the court of appeal may find manifest error or clear wrongness (sic) even in a finding purportedly based on a credibility determination.” Cosby v. Holcomb Trucking, Inc., 05-0470, pp. 12-13 (La.9/6/06), 942 So.2d 471, 479. “[Wfcere such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Id.

EJGH first alleges that the trial court erred in finding that it or its employee had actual or constructive knowledge of the hazardous conditions in Room 9501 and/or that it had a reasonable opportunity to correct the hazardous condition and failed to do so.

La. R.S. 9:2800 provides, in pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.
* * ⅜
G. (1) “Public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political | ^subdivisions and the departments, offices, agencies, boards, commissions, in-strumentalities, officers, officials, and employees of such political subdivisions. Public entity also includes housing authorities, as defined in R.S. 40:384(15), and their commissioners and other officers and employees and sewerage and water boards and their employees, servants, agents, or subcontractors.

La. R.S. 9:2800 applies to EJGH pursuant to paragraphs (A) and (G)(1) of the statute. Hoffman v. Jefferson Parish Hosp. Services Dist. No. 2, 11-776 (La.App. 5 Cir. 4/10/12), 87 So.3d 370, 374, writ denied sub nom., Hoffman v. Jefferson Parish Hospitals Services Dist. No. 2, 12-1295 (La.9/28/12), 98 So.3d 842.

The legal analysis for injury as a result of an alleged defective condition against a public entity such as EJGH is the same whether the cause of action is raised under La. C.C. art. 2317 and La. R.S. 9:2800 strict liability, or in negligence pursuant to La. C.C. art. 2315.2. The plaintiff bears the burden of showing that: (1) the public entity had custody of the thing that caused the plaintiffs injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the public entity had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4) the defect in the thing was a cause-in-fact of the plaintiffs injuries. To recover, a plaintiff bears the burden of proving all of these inquiries in the affirmative and failure on any one is fatal to the case. Graff v. Jefferson Parish Hosp. Serv. Dist. No. 2, 09-598 (La.App. 5 Cir. 3/23/10), 39 So.3d 685, 690-91, unit denied, 10-0907 (La.6/18/10), 38 So.3d 331.

In order to maintain a claim for damages caused by the condition of things within the care and custody of a public entity, the complainant has the burden of proving that the public body had actual or constructive notice of the hazard and had a reasonable opportunity to remedy the condition, but failed to do so. La. R.S. 9:2800(B). Constructive notice is defined as “the existence of facts which infer factual knowledge.” La. R.S. 9:2800(C). Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Maldonado v. Louisiana Superdome Comm’n, 95-2490 (La.App. 4 Cir. 1/22/97), 687 So.2d 1087, writ denied, 97-0469 (La.4/18/97), 692 So.2d 448. The plaintiff bears the burden at trial of proving actual or constructive notice. Bridges v. FCS Entertainment, 00-1041 (La.App. 4 Cir. 5/23/01), 789 So.2d 691.

Blount v. E. Jefferson Gen. Hosp., 04-407 (La.App. 5 Cir. 10/12/04), 887 So.2d 535, 537-38.

In its oral reasons for judgment, the trial court stated that Ms. White proved, by a preponderance of the evidence, that she suffered injury and corresponding damage “as a result of the negligence displayed in this case.” Given the evidence presented, the trial court could have found that prior to Ms. White reporting for duty on the date of the accident, the toilet in the room directly above Room 9501 overflowed, causing flooding and that some of the water eventually made its way down to Room 9510, creating a puddle on the floor. Mr. Najolia, an employee of EJGH, admitted that he knew of the water on both the 5th and the 6th floors; but, he did not clean the water up himself. He stated that he informed the 5th floor charge nurse of the need to call EJGH’s housekeeping; however, nothing was introduced at trial to indicate that housekeeping ever responded. A second overflow occurred sometime later, and Mr. Najolia again unplugged the toilet. Again, he did not clean the water on the 5th or 6th floor, and again he testified that he told the charge nurse; however, he did not follow up to see if the water had been removed, and again there was no evidence introduced to show that housekeeping responded. Thus, we find no manifest error in the trial court’s determination that EJGH knew or should have known of the defective | ^condition (the water on the floor in Room 9501) and could have guarded Ms. White from injury, but failed to do so.

EJGH next alleges that the trial court erred in its apportionment of fault.

Pursuant to Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967 (La.1985), the trier of fact should compare the relative fault of the parties in the assessment of liability. In assessing comparative fault, the following factors should be considered: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson, supra. The trier of fact’s allocation of fault is a factual determination subject to the manifest error rule. Priest v. City of Bastrop, 34,841 (La.App. 2 Cir. 7/11/01), 792 So.2d 80, 84.

In this case, the trial court assessed 50% fault to EJGH, 30% to SSH and 20% to Ms. White. We find no manifest error in this determination. EJGH was aware of the condition and failed to take steps to remediate. SSH also had responsibility to its workers and patients to remediate. Finally, Ms. White bears some liability for her actions in stepping over the blanket which covered the puddle, since at that time she knew that the hazardous condition still existed.

For the above discussed reasons, the judgment of the trial court is affirmed. Costs are assessed against EJGH, appellant.

AFFIRMED

      . Plaintiff's husband, Christopher White, was also a plaintiff, asserting a loss of consortium claim. His claim was voluntarily dismissed with prejudice prior to the trial of this suit.

      . Ms. White settled her suit with SSH prior to trial.


author: PETTIGREW, J. KUHN, J.,

text:
    McLANE SOUTHERN, INC. v. Cynthia BRIDGES, Secretary of the Department of Revenue of the State of Louisiana.
    No. 2010 CA 1259R.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 2013.

      George Denegre, Jr., Robert S. Angelico, Dena L. Olivier, New Orleans, LA, for Plaintiff-Appellant McLane Southern, Inc.
    Antonio Charles Ferachi, Baton Rouge, LA, for Defendant-Appellee Secretary, Louisiana Department of Revenue.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   PETTIGREW, J.

|?This is an action for refund of taxes paid under protest by plaintiff, McLane Southern, Inc. (“McLane”), a Mississippi-based company, to the Louisiana Department of Revenue (“Department”). Following cross motions for summary judgment filed by the parties, the trial court granted summary judgment filed by the Department, dismissing, with prejudice, McLane’s claims against the Department. This appeal by' McLane followed. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

The facts of this case were fully developed in an earlier opinion of this court, wherein we concluded that there was no specific statute imposing liability on McLane for the payment of the tax levied as to smokeless tobacco products and, thus, McLane was entitled to a refund for the taxes paid under protest. We reversed the trial court’s judgment and determined that the remaining issues were moot. See McLane Southern, Inc. v. Bridges, 2010-1259 (La.App. 1 Cir. 5/6/11), 64 So.3d 886. On September 23, 2011, the Louisiana Supreme Court granted the Department’s writ application. McLane Southern, Inc. v. Bridges, 2011-1141 (La.9/23/11), 70 So.3d 810. Observing that “La. R.S. 47:841, as amended in 2000, imposes a 20 [percent] excise tax on the distribution of smokeless tobacco in this state,” the supreme court interpreted La. R.S. 47:841 and 854 as giving the Department the right to collect a 20 percent excise tax on McLane as the dealer who first distributes smokeless tobacco in this state. So concluding, the supreme court reversed this court’s decision and remanded the case to our court for consideration of McLane’s remaining assignments of error, i.e.: 1) the trial court erred as a matter of law in finding that the “Invoice price” as defined by La. R.S. 47:842(12) upon which the excise tax is imposed should be calculated on the price that McLane pays to its tobacco supplier, rather than the lower manufacturer’s net invoice price as invoiced by the manufacturer to McLane’s tobacco supplier; and 2) the trial court erred as a matter of law in adopting the interpretation of La. R.S. 47:842(12) urged by the Department as this interpretation renders the Tobacco Tax Law unconstitutional under the Dormant Commerce Clause of the United States Constitution by discriminating against out-of-state | ^.wholesalers like McLane. McLane Southern, Inc. v. Bridges, 2011-1141, pp. 11-12 (La.1/24/12), 84 So.3d 479, 486.

DISCUSSION

Standard of Review and General Principles of Summary Judgment

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. It should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of civil actions. La.Code Civ. P. art. 966(A)(2). Its purpose is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 2004-0806, p. 7 (La.6/25/04), 876 So.2d 764, 769 (per curiam).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must 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, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Janney v. Pearce, 2009-2103, p. 5 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 288-289, writ denied, 2010-1356 (La.9/24/10), 45 So.3d 1078.

Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and 14whether the mover is entitled to judgment as a matter of law. Lewis v. Morgan, 2011-2182, p. 4 (La.App. 1 Cir. 6/8/12), 93 So.3d 741, 744. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Daniels v. USAgencies Cas. Ins. Co., 2011-1357, p. 8 (La.App. 1 Cir. 5/3/12), 92 So.3d 1049, 1055.

Principles of Statutory Interpretation

McLane’s first assignment of error involves the interpretation of La. R.S. 47:841 as It relates to “invoice price” as defined in La. R.S. 47:842(12). Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and enforce the intent of the statute. State v. Campbell, 2003-3035, p. 7 (La.7/6/04), 877 So.2d 112, 117. It is presumed that the Legislature enacts each statute with deliberation and with full knowledge of all existing laws on the same subject. Id., 2003-3035 at 8, 877 So.2d at 117. Thus, legislative language will be interpreted on the assumption that the Legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes. It is further presumed that the Legislature intends to achieve a consistent body of law. Id.

The starting point in the interpretation of any statute Is the language of the statute itself. When a law is dear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature. In re Clegg, 2010-0323, p. 20 (La.7/6/10), 41 So.3d 1141, 1154. The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the Legislature in enacting the law. Id., 2010-0323 at 21, 41 So.3d at 1154.

In interpreting the Revised Statutes, “[w]ords and phrases shall be read with their context and shall be construed according to the common and approved usage of |5the language.” La. R.S. 1:3. When the wording of a section of the Revised Statutes “is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing Its spirit.” La. R.S. 1:4.

What is Invoice Price?

The first Issue for our review is the proper interpretation of invoice price as the benchmark that sets the tax base for the tobacco tax on smokeless tobacco. As set forth In La. R.S. 47:841, the amount of tax levied on smokeless tobacco is “twenty percent of the invoice price as defined in this Chapter.” La. R.S. 47:841(E). Pursuant to La. R.S. 47:842, “[i]nvoice price” is defined, in part, as “the manufacturers net invoiced price as invoiced to the Louisiana tobacco dealer, by the manufacturer, jobber, or other persons engaged in selling tobacco products.” La. R.S. 47:842(12).

According to the record, McLane purchases its smokeless tobacco products from its supplier, U.S. Smokeless Tobacco Brands, Inc. (“UST-Sales”), which is an affiliate of U.S. Smokeless Tobacco Manufacturing Company (“UST-Manufacturing”). UST-Manufacturing sells to UST-Sales the smokeless tobacco products that UST-Sales then sells to McLane. All of these sales occur outside of Louisiana. McLane then sells the smokeless tobacco products to its customers, which are primarily grocery stores and small convenience stores in Louisiana.

McLane argues on appeal that the applicable statutes clearly provide that the 20 percent smokeless tobacco tax applies to the manufacturer’s net invoiced price, which in its distribution chain is the price at which UST-Sales purchased the smokeless tobacco from UST-Manufacturing. McLane asserts that UST-Sales is not a manufacturer and, thus, the price at which it sells the products to McLane cannot be the manufacturer’s net invoiced price. In the alternative, McLane argues that any ambiguity in La. R.S. 47:842(12) must be construed in favor of McLane.

|fiThe Department asserts, and the trial court agreed, that the invoice price as defined in La. R.S. 47:842(12) is the price McLane pays to UST-Sales, not the price UST-Manufacturing charges UST-Sales. The Department argues that “it is clear that the [Legislature intended that the price that would set the base would be a sale from either (1) a manufacturer, (2) a jobber, or (3) other persons engaged in selling tobacco products.” (Emphasis in original.) Thus, the Department maintains, “the purchase of tobacco products from any of these three entities can constitute the taxable ‘invoice price.’ ” (Emphasis in original.) The Department points out that before UST-Sales sold the product in question to McLane, it purchased the smokeless tobacco products from UST-Manufacturing. UST-Sales then resold the smokeless tobacco products to McLane at a higher price. This, the Department argues, brings UST-Sales clearly within the classification of a “jobber, or other [person] engaged In selling tobacco products” as is contemplated in La. R.S. 47:842(12).

Applying the above legal precepts to this ease, and having thoroughly reviewed the evidence in the record, we agree with the Department that the base for the 20 percent tax on the smokeless tobacco products is the price McLane paid to UST-Sales, not the price UST-Sales paid to UST-Manufacturing. The language in La. R.S. 47:842(12) is “clear and unambiguous,” and its application herein does not lead to absurd consequences. The price as invoiced to the Louisiana tobacco dealer by the manufacturer, jobber, or other persons engaged in selling tobacco products sets the tax base. Thus, the statute must be applied as written, and no further interpretation may be made in search of the Legislature’s intent. In re Clegg, 2010-0323 at 20, 41 So.3d at 1154.

Does Louisiana’s Tobacco Tax Violate the Commerce Clause?

McLane next argues that the trial court erred in adopting an interpretation of La. R.S. 47:842(12) that renders the statute unconstitutionally discriminative against interstate commerce.

In determining the constitutionality of the statute at issue, it is important to keep certain principles in mind. It is well settled that statutes are presumed constitutional 17unless fundamental rights, privileges, and immunities are involved. This presumption is especially forceful in the case of statutes enacted to promote a public purpose, such as statutes relating to taxation and public finance. World Trade Center Taxing Dist. v. All Taxpayers, Property Owners, 2005-0374, p. 11 (La.6/29/05), 908 So.2d 623, 632. Because of the presumption of a statute’s constitutionality, the party challenging the statute bears the burden of proving its unconstitutionality. Wooley v. State Farm Fire and Cas. Ins. Co., 2004-0882, p. 19 (La.1/19/05), 893 So.2d 746, 762.

The Commerce Clause of the United States Constitution gives to Congress the power “[t]o regulate Commerce ... among the several States.” U.S. Const. Art. I, § 8, cl. 3. The Commerce Clause has been interpreted to carry a negative implication known as the dormant Commerce Clause, which seeks to prevent States from engaging in economic protectionism by economically benefitting instate interests while burdening out-of-state competitors. See Department of Revenue of Ky. v. Davis, 553 U.S. 328, 337-338, 128 S.Ct. 1801, 1808, 170 L.Ed.2d 685 (2008); New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 273-274, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988). “[I]n the absence of actual or prospective competition between the supposedly favored and disfavored entities in a single market there can be no local preference, whether by express discrimination against interstate commerce or undue burden upon it, to which the dormant Commerce Clause may apply.” General Motors Corp. v. Tracy, 519 U.S. 278, 300, 117 S.Ct. 811, 825, 136 L.Ed.2d 761 (1997). In the instant matter, McLane argues that under the trial court’s interpretation of La. R.S. 47:842(12), the “ ‘shifting tax base’ rewards the location of economic activity in Louisiana and penalizes the location of activity in other states,” thus discriminating “against interstate commerce in violation of the Commerce Clause.”

In determining whether a state tax violates the dormant Commerce Clause, the United States Supreme Court has used a four-part test. A State tax will not be sustained “unless the tax: (1) has a substantial nexus with the State; (2) is fairly apportioned; (3) does not discriminate against interstate commerce; and (4) is fairly ^related to the services provided by the State.” Maryland v. Louisiana, 451 U.S. 725, 754, 101 S.Ct. 2114, 2133, 68 L.Ed.2d 576 (1981).

McLane maintains that the smokeless tobacco tax statute violates the third prong of the four-part test, in that the statute discriminates against interstate commerce. A state tax is discriminatory against interstate commerce “if it is facially discriminatory, has a discriminatory intent, or has the effect of unduly burdening interstate commerce.” Amerada Hess Corp. v. Director, Div. of Taxation, New Jersey Dept. of Treasury, 490 U.S. 66, 75, 109 S.Ct. 1617, 1623, 104 L.Ed.2d 58 (1989).

In a previous case dealing with similar issues, the Colorado Court of Appeals found the tobacco tax statutes, as they applied to the transactions between McLane Western and UST-Sales, to be constitutional under the Commerce Clause:

[W]hile the tax here is imposed based on the price paid by the taxable distributor, neither [UST-Manufacturing] or [UST-Sales] is encouraged to move into the state because they might well become the taxable distributor. The tax is imposed on an activity within the state, the sale and distribution of [other tobacco products], not on the product or the distribution network. The fact that the tax base calculated on the price paid by the taxable distributor may place the product at a competitive disadvantage in the marketplace because the higher tax is added to the price does not, in our view, render the tax unconstitutional under the Commerce Clause. All taxable distributors of [other tobacco products] are taxed at the same rate and on a tax base determined in the same fashion.

McLane Western, Inc. v. Department of Revenue, 126 P.3d 211, 216 (Colo.App.2005), cert. denied, 2006 WL 349788 (Colo.2006), cert. denied, 549 U.S. 810, 127 S.Ct. 42, 166 L.Ed.2d 18 (2006).

Subsequently, in McLane Minnesota, Inc. v. Commissioner of Revenue, 773 N.W.2d 289 (Minn.2009), McLane’s arguments regarding the Commerce Clause were again dismissed, this time by the Minnesota Supreme Court:

The Commerce Clause prohibits economic protectionism in the form of “regulatory measures designed to benefit instate economic interests by burdening out-of-state competitors.” Therefore, “ ‘a State may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State.’ ”
McLane is correct that calculating the tobacco tax using the price that McLane pays to [UST-Sales], instead of the amount that [UST-Sales] pays to [UST-Manufacturing], has the effect of increasing the amount of the tobacco tax that it pays as the tax-liable distributor. McLane relies on Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 83 S.Ct 1201, 10 L.Ed.2d 202 (1963), to support its position that this effect violates the Commerce Clause. In Halliburton, the State of Louisiana imposed a use tax on machinery that was manufactured outside of the state and used in the state. Unlike the sales tax imposed on machines manufactured in-state, the use tax calculation also included the cost of labor and overhead. The U.S. Supreme Court reasoned that the Commerce Clause requires “equal treatment for in-state and out-of-state taxpayers similarly situated as a condition precedent for a valid use tax on goods imported from out-of-state.” Thus, the Court struck down the tax because the effect of the tax was to discriminate in favor of local merchants.
We conclude that Minnesota’s tobacco tax does not discriminate in favor of local merchants. In contrast to the use tax in Halliburton, the tobacco tax does not include additional components in the tax if the tobacco products are manufactured out-of-state. All tobacco products are taxed at the same rate and all are taxed at the time of the first wholesale transaction in Minnesota, regardless of the origin of the products.
McLane contends that the tax court failed to consider its argument that the tax is discriminatory “due to the burden the tax would place on interstate products, rather than taxpayers.” But McLane’s increased tax obligation is not the result of a tax that discriminates against out-of-state products or favors in-state products, but rather the result of [UST-Sales’] business decisions to sell its tobacco products at a higher price than [UST-Manufacturing] sold them. It is [UST-Sales’] business model, and not the statutory structure, that causes McLane’s higher tax obligation. The Commerce Clause does not protect “particular structure^] or methods of operation in a retail market.”
Finally, McLane suggests that the tobacco tax encourages out-of-state distributors such as [UST-Sales] to move into Minnesota in order to compete on equal terms. The central premise of McLane’s argument is that if [UST-Sales] relocated to Minnesota, it would become the in-state tax-liable distributor. [UST-Sales] would pay the tobacco tax based on the price that it pays to [UST-Manufacturing] and then resell the product to McLane. This effect, McLane argues, encourages [UST-Sales] to become a Minnesota distributor.
But McLane does not address how [UST-Sales] would become the taxable distributor, and it does not address why McLane would exist in such a distribution network. While [UST-Sales] is a licensed tobacco products distributor in Minnesota, it is currently not the tax-liable distributor because it does not bring tobacco products into Minnesota for sale. In short, McLane’s argument is speculative and without any factual basis.
We conclude that Minnesota’s tobacco tax does not discriminate in favor of local merchants or local products. It does not result in economic protectionism, but rather taxes tax-liable distributors and products uniformly, and therefore does not violate the Commerce Clause.

McLane Minnesota, Inc., 773 N.W.2d at 299-300 (citations omitted).

In the instant case, McLane once again argues these same points regarding the discriminatory nature of the interpretation of the tobacco tax statutes as adopted by the Imtrial court below. Having thoroughly reviewed the record before us and the applicable statutes and jurisprudence, we conclude that McLane has failed in its burden of proving that the application of the tobacco tax statutes as interpreted by the trial court would violate the Commerce Clause and render them unconstitutional. As pointed out by the Department in brief to this court: “The tax is assessed against the first dealer who causes tobacco products to be in Louisiana for sale or distribution, and the tax is assessed at the same rate.” The Department notes that this is true regardless of where the products originate, i.e., “whether the person manufactures the products for sale in the state, brings the products into the state, or causes the products to be brought into the state.” Much like the scenario in McLane Minnesota, Inc., McLane’s increased tax obligation in the instant case is “not the result of a tax that discriminates against out-of-state products or favors in-state products,” but rather due to the change in pricing by McLane’s supplier, UST-Sales. McLane Minnesota, Inc., 773 N.W.2d at 300. “It is [UST-Sales’] business model, and not the statutory structure, that causes McLane’s higher tax obligation. The Commerce Clause does not protect ‘particular structure^] or methods of operation in a retail market.’ ” Id.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s judgment below and assess all costs associated with this appeal against McLane Southern, Inc.

AFFIRMED.

KUHN, J., dissents & assigns reasons.

KUHN, J.,

dissenting.

[,In McLane Southern, Inc. v. Bridges, 2011-1141 (La.1/24/12), 84 So.3d 479, the Louisiana Supreme Court found that “La. R.S. 47:841 and 47:854 impose an excise tax of 20% on smokeless tobacco products to be paid by the dealer who first sells, uses, consumes, handles or distributes the product in Louisiana.” According to La. R.S. 47:841 E, that tax is levied upon the “invoice price” as defined in the Louisiana Tobacco Tax Law. And La. R.S. 47:841(12) defines “invoice price” as “the manufacturers net invoiced price as invoiced to the Louisiana tobacco dealer, by the manufacturer, jobber, or other persons engaged in selling tobacco products in accordance with the tax levied by this chapter.” Therefore, under the plain language of Tobacco Tax Law, the “invoice price” is the “manufacturers net invoiced price.” Under McLane’s system of distribution, U.S. Smokeless Tobacco Manufacturing Company (UST-Manufacturing) is the only party that issues a manufacturer’s net invoice price. Thus, under La. R.S. 47:841(12), UST-Manufaeturing’s net invoice price is the price that is correctly designated as the tax base for the application of the 20% tax imposed under La. R.S. 47:841 E.

To construe the “invoice price” set forth in La. R.S. 47:841E as the price charged by “other persons engaged in selling tobacco products” such that, in this case, the taxable base price is the price charged by U.S. Smokeless Tobacco Brands, Inc. (UST-Sales) overlooks the legislature’s use of the adjective | ¡.“manufacturers” to describe the “net invoiced price” in La. R.S. 47:841(12). It is axiomatic that in interpreting a statute, it is presumed that every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1st Cir.1984). Thus, that construction is either incorrect or the provisions of La. R.S. 47:841 E are ambiguous. And if the latter, because taxing statutes must be strictly construed against the taxing authority, where a tax statute is susceptible of more than one reasonable interpretation, the construction favorable to the taxpayer is to be adopted. Cleco Evangeline, LLC v. Louisiana Tax Comm’n, 2001-2162 (La.4/3/02), 813 So.2d 351, 356.

It should not be assumed that the legislature intended to collect the smokeless tobacco tax from the same dealer described in La. R.S. 47:854 merely because it is logical to collect both the smoking and smokeless tobacco taxes in the same manner. Because the smokeless tobacco tax is based on the invoice price, the legislature could have intended to collect the tax from the tobacco dealer or from the manufacturer, jobber, or other person who invoiced the dealer. See La. R.S. 47:842(12); McLane Southern, Inc., 84 So.3d at 486-87 (Kimball, C.J., dissenting). Likewise, I believe that the legislature must define the taxpayer before collecting the tax. See McLane Southern, Inc., 84 So.3d at 487. For these reasons, I dissent.

      . McLane also purchases smokeless tobacco products from Conwood Sales Company, LLC, which acquires the tobacco products it sells to McLane from an affiliated manufacturer, Conwood Company, LLC. The relationship and transactions among Conwood Sales Company, LLC, Conwood Company LLC, and McLane, for purposes of this appeal, are identical to those among UST-Sales, UST-Manufacturing, and McLane. Therefore, all references herein to UST-Sales include Conwood Sales Company, LLC, and all references to UST-Manufacturing include Conwood Company, LLC.