text:
    STATE of Louisiana v. John H. SPELLS.
    No. 2012-KA-1148.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 29, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

| TJohn H. Spells appeals his conviction and sentence for the crime of home invasion. Por the reasons that follow, we affirm the conviction, vacate the sentence, and remand for resentencing.

STATEMENT OF CASE

The State charged Mr. Spells with home invasion, a violation of La. R.S. 14:62.8. Mr. Spells was arraigned and pled not guilty. Prior to trial, he filed a motion to suppress the evidence, which was denied by the trial court a December 2, 2011 hearing.

Mr. Spells was tried on January 17, 2012, and a jury found him guilty of the charged offense. On March 16, 2012, the trial court denied Mr. Spells’ motions for new trial and post-verdict judgment of acquittal, and sentenced Mr. Spells to six years at hard labor, to be served concurrently with any and all sentences he was | ^already serving; the trial court also imposed a fine of $1,000.00. That same date, the trial court denied Mr. Spells’ motion to reconsider sentence.

STATEMENT OF FACT

The victim, Robella James, rents and lives in the apartment that Mr. Spells was convicted of invading. Ms. James’ daughter, Jeavan James, and her two-year-old grandson, Zamia, live with her. Ms. James testified that she had dated Spells for six years, but the relationship had ended by August 23, 2011. That evening at about 10:45 p.m., Ms. James was playing cards with Arnold Ballard when Mr. Spells knocked on the door. Her daughter and grandson were in their bedroom. When Ms. James informed Mr. Spells that she had company, he left, but he returned about forty-five minutes later.

Mr. Spells knocked on the door, but Ms. James refused him entry into the apartment. Mr. Spells then kicked in the front door and charged at Ms. James while carrying a sharp object. Ms. James retreated to Jeavan’s bedroom, telling her daughter to call the police. Mr. Spells exclaimed, “B_, I’ll kill you!” A physical altercation ensued between Mr. Spells, Ms. James and her daughter. Ms. James was on the bed as Mr. Spells tried to stab her with the sharp object — a pair of scissors. Zamia was in the bed too — sleeping by the edge of the bed near the air conditioner. Ms. James and Jeavan managed to recover the scissors from Mr. Spells. Jeavan pushed Mr. Spells, and Ms. James was able to escape the apartment |swith the scissors. Ms. James immediately went to the police station and turned the scissors over to the police.

At trial, Jeavan confirmed her mother’s story, adding that she feared Mr. Spells was going to run her mother over with his van as she ran to the police station. Jeav-an confirmed that Spells had a sharp object in his hands when he entered the apartment, and stated that he tried to “jug” her mother with it. However, she could not specify what the sharp object was.

Jeavan testified that she stayed in the apartment and called 911 right after her mother ran out with Mr. Spells pursuing her. Jeavan testified that the police arrived at the apartment while her mother was at the police station. Her son slept through the commotion, awaking between the time that Mr. Spells and Ms. James left the apartment and the police arrived.

Officer John Walker testified that he initially responded to the 911 call made on August 28, 2011. While on his way to the apartment, Officer Walker was informed that Ms. James was at the police station. He instead went to the station and instructed Officer Ivory Warren to go to the apartment.

Officer Walker testified that when he arrived at the station, Ms. James was distraught because she feared for her safety, and he had to calm her down. Officer Walker collected the scissors from her as evidence, which he identified at trial. After speaking with Ms. James at the station, Officer Walker escorted her safely back to her apartment, where he interviewed Jeavan. Officer Warren was at the apartment when Officer Walker arrived. Officer Walker then returned to the police |4station to prepare an arrest warrant based upon the information given him by the victims. At trial, Officer Walker identified a picture of the apartment door and noted that it “show[ed] physical sign that the door was defeated, and a key wasn’t used. It was defeated by force.”

Officer Warren testified that when she arrived at the apartment, the first thing she observed was condition of the front door. It was “freshly damaged.” A sofa was lodged against the door, and Jeavan moved the sofa and helped Officer Warren push the door open. Jeavan appeared scared from the “event.”

Mr. Spells’ father, John Henry Spells, Sr., also testified at trial. According to the father, Mr. Spells and Ms. James had previously lived in an apartment that Mr. Spells, Sr., owned, which was next to his home. However, Mr. Spells, Sr., testified that he had asked Ms. James to leave prior to August 23, 2011 because of her drug use.

ERRORS PATENT; COUNSEL’S MOTION TO WITHDRAW

Complying with the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990), Mr. Spells’ appellate counsel has filed a brief requesting a review for errors patent. Counsel’s brief also complies with the requirements enunciated in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, which requires that it contain “a detailed and renewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Id., p. 3, 704 So.2d at 242. Counsel’s detailed review of the | r,procedural history and facts of the case reflect her thorough review of the record. Because she believes, after a conscientious review of the record, including available transcripts, that there is no non-frivolous issue for appeal, counsel has filed a motion to withdraw.

As required by Benjamin, this court has performed an independent review of the record and the Anders brief filed by appellate counsel. Our review of the record reveals an error patent in the sentence. The bill of information shows that Mr. Spells was charged with:

THE CRIME OF HOME INVASION BY THE UNAUTHORIZED ENTRY OF AN INHABITED DWELLING at [address] BELONGING TO ROBELLA JAMES, WHERE A PERSON under the age of twelve was present, WITH THE INTENT TO USE FORCE OR VIOLENCE UPON THE PERSON OF ANOTHER OR TO VANDALIZE, DEFACE OR DAMAGE THE PROPERTY OF ANOTHER.

The bill of information also has a January 17, 2012 notation, “LA RS 14:62.8.”

At the time the crime was committed, the home invasion statute provided a general sentencing range of five to ten years at hard labor, five of which must be served without benefit of parole, probation, or suspension of sentence. La. R.S. 14:62.8(B)(1) (West 2011). It also allowed for a fine of up to $5,000 to be imposed. However, if the crime was committed while a person under the age of twelve, over the age of sixty-five, or disabled was present, then the sentencing range was ten to twenty-five years at hard labor, with a fine of up to $10,000 allowed. La. R.S. 14:62.8(B)(2) (West 2011).

| ,;In this case, the record reflects that the trial court judge believed the minimum allowable sentence was a $1000.00 fine and six years imprisonment. However, this sentence does not comport with the mandates of La. R.S. 14:62.8(B). The charging document specified the presence of a two-year-old (i.e. a person under the age of twelve), which is consistent with a charge under La. R.S. 14:62.8(B)(2). Therefore, the sentence must be vacated, and the case remanded in order for the issuance of a legal sentence in accordance with La. R.S. 14:62.8(B)(2).

Other than this patent error, our independent review reveals no non-frivolous issue for appeal and no trial court ruling that arguably supports the appeal. Accordingly, we grant counsel’s motion to withdraw.

DISCUSSION OF DEFENDANT’S PRO SE ASSIGNMENTS OF ERROR

Mr. Spells has filed a pro se brief wherein he essentially asserts multiple errors that can be consolidated into two assignments: 1) insufficiency of the evidence; and 2) improper closing argument by the State — referral to Mr. Spell’s pre-arrest silence.

1. Insufficiency of the Evidence

Mr. Spells points to the absence of certain evidence and asserts several factual arguments. Taken together, these arguments amount to an attack on the sufficiency of the evidence supporting his conviction.

|7In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id., 523 So.2d at 1309-1310. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Williams, 2007-0700, p. 5 (La.App. 4 Cir. 2/13/08), 977 So.2d 1101, 1108. The determination of whether the requisite intent is present in a criminal case is an issue for the trier of fact. State v. Huizar, 414 So.2d 741, 751 (La.1982).

Mr. Spells was convicted of a home invasion, which is defined as the “unauthorized entering of any inhabited dwelling, or other structure belonging to another and used in whole or in part as a home or place of abode by a person, where a person is present, with the intent to use force or violence upon the person of another or to vandalize, deface, or damage the property of another.”

Ms. James testified at trial that when she refused to let Mr. Spells into the apartment where she lived with her daughter and grandson, Mr. Spells kicked the door in and then attacked her with a pair of scissors. Thus, Ms. James testimony establishes “unauthorized entry of’ an “inhabited dwelling ... where a person is present, with the intent to use force or violence upon the person.” The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Wells, 2010-1338, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306. A factfin-der’s decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence. State v. James, 2009-1188, p. 4 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996. Therefore, Ms. James’ trial testimony alone is sufficient to sustain Mr. Spells’ conviction.

Mr. Spells argues that the photographs presented at trial do not support the jury’s finding that the door was forced open because there are no pictures of the door casing. He also asserts that Officer Warren tampered with the evidence by |flpeeling away duct tape attached to the middle of the door. One of the photographs entered into evidence shows a door with a door knob above and a bolt lock below. Duct tape appears to be peeling off from the side of the door in the area of the door knob. However, the picture also shows broken wood by the bolt below. At trial, Ms. James explained that the upper door knob had been broken prior to the incident. Nothing in the picture or other parts of the record contradicts Ms. James’ testimony that the door was forced open. Nothing in the record indicates evidence tampering. Accordingly, considering the evidence in a light most favorable to the prosecution, the establishment of the elements of home invasion is supported by the record.

Mr. Spells also references a police report, a copy of which he has provided to this court. The record reflects that this report was not introduced as evidence at trial. Accordingly, it is not part of the record on appeal and cannot be considered. See State v. Santos, 2008-0198, p. 8 (La.App. 4 Cir. 10/8/08), not reported, 2008 WL 4684663 (police reports not introduced at trial could not be considered on appeal).

2. State’s referral to defendant’s pre-arrest silence

Mr. Spells asserts that the State, in its rebuttal closing argument, violated his Fifth Amendment right to remain silent. The basis for Mr. Spells’ complaint is the following excerpt from the prosecutor’s argument:

In opening, defense counsel said she attacked him but she called 911. She attacked him, but the daughter is also giving the same Inconsistent statement that he came in with that knife — excuse me — with those scissors. She attacked him, but did he go to the police? Did he call 911? Did he come back to the scene and say, [“]this is a mix up. She attacked me.” He ducked tail and ran because he knew he did wrong. He knew he kicked in that door. Here are these two women and their two-year-old grandchild. He didn’t tell the police any of this. Nowhere from this stand did she say she attacked him with the scissors.

The defense counsel moved for a mistrial based upon this statement, which was denied.

Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), prohibits the prosecution from impeaching a defendant’s trial testimony with evidence that he remained silent after being arrested and advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). State v. Richards, 99-0067, p. 1 (La.9/17/99), 750 So.2d 940. The decision in Doyle rests on the premise that Miranda warnings render the subsequent silence of a defendant “insolubly ambiguous,” (Doyle, 426 U.S. at 617, 96 S.Ct. at 2244), and thereby make later use of that silence to impeach his or her exculpatory testimony at trial fundamentally unfair. Id., 426 U.S. at 618, 96 S.Ct. at 2245; Richards, 99-0067, p. 1, 750 So.2d at 940.

However, “[i]n the case of pre-ar-rest silence,” in which “[t]he failure to speak occur[s] before the petitioner [is] taken into custody and given Miranda warnings,” and in which “no governmental action induce[s] petitioner to remain silent,” “the fundamental unfairness present in Doyle is not present.” Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 2130, 65 L.Ed.2d 86 (1980). “Neither Doyle specifically, nor the Due Process Clause generally, bars the inquiry.” Jenkins, 447 U.S. at 239-40, 100 S.Ct. at 2129-30; Richards, 99-0067, p. 2, 750 So.2d at 941.

^Nevertheless, as the Jenkins and Richards Courts both acknowledged, the individual states may afford greater rights than the U.S. Constitution requires, and therefore may protect the defendant’s pre-arrest silence under certain circumstances. As the Court in Richards noted:

The federal constitution therefore leaves undisturbed the common law tradition which “allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.” Jenkins, 447 U.S. at 239, 100 S.Ct. at 2129 (citing 3A J. Wigmore, Evidence, § 1042, p. 1056) (Chadbourn rev.1970).
Jenkins expressly cautioned that it did “not force any state court to allow impeachment through the use of prear-rest silence.” Id., 447 U.S at 240, 100 S.Ct. at 2130. Each jurisdiction therefore remains free to strike its own evi-dentiary balance and to exclude evidence of a defendant’s silence under circumstances in which the federal constitution would not bar it.

Id., 99-0067, pp. 2-3, 750 So.2d at 941.

In Richards, which involved the prosecution’s attempt to impeach the defendant by referring to his silence, the Louisiana Supreme Court did not address whether Louisiana law prohibits prosecutors from referring to a defendant’s pre-arrest silence in any circumstance. Id., p. 3, 750 So.2d at 941. Instead, the Court found that the defendant in that case had waived his right to remain silent by testifying at trial; and further, that the defense counsel’s objection to improper impeachment had been waived by counsel’s failure to specify a basis for objection. Id., pp. 3-4, 750 So.2d at 941-942.

Thus, the Louisiana Supreme Court has not decided whether Louisiana law prohibits referral to a defendant’s pre-arrest silence at trial. As this court has not addressed the issue either, we are inclined to follow the federal rule that pre-arrest | ^silence may be referred to. This rule was applied by our colleagues on the Second Circuit in State v. Harrison, 46,-325, pp. 25-30 (La.App. 2 Cir. 5/18/11), 69 So.3d 581, 596-598 (Prosecution asking whether defendant spoke to police at any point was a permissible reference to pre-arrest silence), and by the First Circuit in State v. Pernell, 2010-369 (La.App. 1 Cir. 9/10/10), unpublished, 2010 WL 3526487 (Prosecution’s opening statement reference to defendant’s failure to deny ownership of drugs to police was a permissible reference to defendant’s silence prior to his being given Miranda warning).

We therefore find no error in the trial court’s allowance of the prosecution’s statement in the present case. Even if we had concluded that the trial court erred, however, we would find such error to be harmless in light of the significant evidence of defendant’s guilt. See State v. Harrison, supra, p. 27, 69 So.3d at 597 (noting that a Doyle error is subject to a harmless error review).

CONCLUSION

Accordingly, for the reasons stated, we grant defense counsel’s motion to withdraw, affirm the defendant’s conviction, vacate his sentence, and remand the matter to the trial court for the issuance of a legal sentence in accordance with La. R.S. 14:62.8(B)(2).

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED

      . A January 17, 2012 written notation on the bill of information states, "LA RS 14:62.8(2).’’

      . The motion for new trial concerned the State's reference to Mr. Spell’s pre-arrest silence in rebuttal closing arguments.

      .The State also filed a multiple bill of information, charging Mr. Spells with being a four time felony offender. The record does not reveal the disposition of multiple offender proceedings.

      . Some of these arguments allude to facts that are not in the record, and therefore cannot be considered.

      . While the report was used to refresh Officer Walker's memory, the prosecution specified, "It’s not being offered to publish to the jury. It’s just to refresh his recollection.”

      . We note that in Pemell, as in the instant case, the defendant did not testify at trial.


source: Caselaw Access Project

author: JAMES F. McKAY III, Chief Judge.

license: Public Domain

text:
    Authur DePODESTA v. Dail BREAUX.
    No. 2012-CA-1594.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 29, 2013.

      Tilton R. Hunter, Jr., Metairie, LA, for PlaintiffiAppellee.
    Frank E. Beeson III, New Orleans, LA, for Defendani/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JAMES F. McKAY III, Chief Judge.

11Defendani/appellant, Dail Breaux (“Breaux”), appeals the trial court’s judgment, decreeing that plaintiff/appellee, Arthur DePodesta (“DePodesta”), did not sell his sixty percent ownership interest in La-kart Food Services, L.L.C. (“Lakart”) to Breaux. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

DePodesta created Lakart in 2000, and began operating the kitchen at Cooter Brown’s, a New Orleans tavern. In October 2005, DePodesta brought Breaux into the business. Pursuant to a written agreement, Breaux was given a forty percent ownership interest in Lakart; DePodesta maintained a sixty percent ownership. Lakart operated successfully, generating an annual income and bonuses for both parties.

In August 2009, DePodesta and Breaux started a second business, Hurricane’s Kitchen, L.L.C. (“Hurricane’s”), to operate the kitchen at a Metairie bar and grill. The new business was unsuccessful.

l2On August 24, 2009, Breaux had a friend draft a document (“Document”), which stated that DePodesta transferred his entire sixty percent ownership interest in Lakart to Breaux for $30,000.00. The Document, which is purportedly signed by DePodesta, indicates that the monetary consideration for the transfer was paid in full. Although the Document is signed by a notary and two witnesses, Breaux has acknowledged that these signatories were not present when Breaux and DePodesta signed the document. DePodesta denies signing the Document.

On August 27, 2009, Breaux recorded the Document in the Notarial Archives of Orleans Parish. Breaux also presented the Document to the Omni Bank where Lakart maintained its business account. Pursuant to the Document, DePodesta’s name was removed from the Omni account. DePodesta claims he had no knowledge of the Document until February 2010, when the Omni bank denied him access to La-kart’s account. DePodesta was also removed from Lakart’s payroll at that time.

DePodesta filed a petition for fraud and rule to show cause for declaratory relief. The action alleges that Breaux forged or had forged DePodesta’s signature on the Document. DePodesta also sought to have the Document declared null and his ownership interest in Lakart reinstated.

This matter proceeded to a bench trial on July 11, 2012, and July 16, 2012. Judgment was rendered in favor of DePodesta on July 27, 2012, finding that DePodesta never sold or intended to sell his sixty percent ownership interest in |sLakart to Breaux, and declaring the Document null. The judgment is silent as to a finding of fraud on the part of Breaux.

At trial, counsel for DePodesta stipulated to the two handwriting experts’ reports, which stated that the signature on the Document appeared to be DePodesta’s. DePodesta acknowledged that the signature looked like his. However, he testified that he did not remember signing the Document, and would not have made such an agreement. DePodesta stated that he would never have sold his interest in La-kart for $30,000.00, explaining that his sixty percent interest was worth much more than that amount. DePodesta also denied receiving the $30,000.00 consideration, which the Document referenced.

Breaux testified at trial that DePodesta signed the Document in front of him, but admitted that the notary and two witnesses signed at a later date. When asked about the consideration for the transfer, Breaux testified that he did not actually pay DePodesta $30,000.00, but paid that amount in startup costs for Hurricane’s. In support of that assertion, Breaux introduced checks drawn on Lakart’s account for services and purchases in connection with Hurricane’s. However, it is important to note here that the checks relied upon by Breaux were dated after the execution of the Document.

DePodesta denied that the payments made for Hurricane’s from Lakart’s account represented consideration for a sale of his interest in Lakart. DePodesta testified that the parties agreed to a 50/50 split in Hurricane’s and agreed that the costs to get Hurricane’s running would be financed through Lakart.

14Breaux denied that he had any ownership interest in Hurricane’s. DePodesta countered this assertion by introducing Breaux’s 2009 income tax return, wherein he claimed a business loss from Hurricane’s. DePodesta also introduced the initial report and the articles of incorporation for Hurricane’s, which were notarized and signed by Breaux, listing Breaux as the registered agent and as a manager/member of Hurricane’s.

As an explanation for DePodesta’s motivation in selling Lakart, Breaux claimed that DePodesta was unhappy with the business and wanted out. On that subject, Breaux called Lakart employee, John Clements (“Clements”), as a witness. When asked if he ever heard DePodesta say that he wanted to get out of Lakart, Clements stated that “I don’t know about Lakart, I know he said he wanted to get out of the city, that entails getting out of Lakart, then I guess yes.” Otherwise, Clements had nothing else to say regarding DePodesta’s plans.

Following the testimony and the presentation of evidence, judgment was rendered in favor of DePodesta. Written reasons were not provided. However, a reading of the transcript of the July 16, 2012 proceedings reveals that the trial judge stated that she did not believe or trust Breaux. The trial judge also opined that while fraud was not proven, Breaux “did some underhanded things” and that “there was no intent by Mr. DePodesta to relinquish any and all rights that he had in Lakart for the sum of 30 thousand previously received. That was borne out clearly by the facts.... ” Breaux has timely appealed the trial court’s judgment.

STANDARD OF REVIEW

|sWhen a trial court’s factual findings are based on the credibility of witness testimony, as in the case sub judice, the appellate court must give great deference to the fact finder’s decision to credit a witness’s testimony. Cottingim v. Vliet, 2008-1263, p. 4 (La.App. 4 Cir. 8/12/09), 19 So.3d 26, 28, quoting Watters v. Dep’t of Soc. Sens., 2008-0977, p. 8 (La.App. 4 Cir. 6/17/09), 15 So.3d 1128,1142. In reviewing those findings, an appellate court must review factual determinations made by the trial court using the manifest error or clearly wrong standard. Mayeux v. Rocky & Carlo, Inc., 2007-0687, p. 2 (La.App. 4 Cir. 4/23/08), 984 So.2d 177, 179.

DISCUSSION

Appellant’s assignments of error:

Breaux submits that the trial court failed to follow the established rule of law that a person is responsible for what he or she signs. Thus, he contends that it was manifest error not to uphold the sale from DePodesta to Breaux where Breaux fulfilled his contractual obligation.

It is well established that a person who signs a written contract is presumed to know its contents and cannot avoid its obligations by contending he did not read the document, or that it was not explained, or that he did not understand it, barring misrepresentation, fraud, or violence. Jeansonne v. Attorney’s Liability Assur. Soc., 2003-1985, p. 7 (La.App. 4 Cir. 12/15/04), 891 So.2d 721, 726. See also Tweedel v. Brasseaux, 433 So.2d 133, 137 (La.1983) (stating: “The presumption is that parties are aware of the contents of writings to which they have affixed their signatures ... The burden of proof is upon them to establish with reasonable certainty that they have been deceived.”).

DePodesta does not claim that he failed to read the Document or that he did not understand the contents of the Document. Rather, DePodesta maintains that his signature on the Document was procured by fraud or misrepresentation, and that he did not consent to the sale of his interest in Lakart.

Consent is an absolute necessity to the formation of a contract, and “where there is no meeting of the minds between the parties the contract is void for lack of consent.” Philips v. Berner; 2000-0103, p. 5 (La.App. 4 Cir. 5/16/01), 789 So.2d 41, 45. La. C.C. art. 2439 defines a contract of sale and lists three requirements for its perfection. Those requirements are the thing, the price, and the consent of the parties. La. C.C. art. 2438 provides that the contract of sale is governed by the rules of general obligation and contract law where no special provision is made. La. C.C.P. art. 2456 requires a meeting of the minds on the thing, and the price, to perfect a contract of sale and transfer ownership.

The existence or nonexistence of a contract is a question of fact and, accordingly, the determination of the existence of a contract is a finding of fact, not to be disturbed unless clearly wrong. Sam Staub Enterprises, Inc. v. Chapital, 2011-1050, p. 5 (La.App. 4 Cir. 3/14/12), 88 So.3d 690, 693 (citing Price v. Law Firm of Alex O. Lewis, III & Associates, 2004-0806, p. 3 (La.App. 4 Cir. 3/2/05), 898 So.2d 608, 610-611). In the present case, the trial court found that a contract of sale did not exist between DePodesta and Breaux. Our review of the record supports that conclusion.

|7Based on the handwriting experts’ opinions and DePodesta’s own testimony that the signature on the Document appeared to be his, the trial court determined that there was sufficient evidence to find that DePodesta signed page three of the Document. However, as the trial court correctly noted, the only text contained on the signature page is a single paragraph relative to the parties’ right of first refusal to purchase the other’s interest in Hurricane’s. Thus, a question was raised as to whether DePodesta was provided with the first two pages of the Document, and whether he consented to the sale of his interest in Lakart. Breaux’s testimony also confirmed that he used a family friend to draft the Document rather than using Lakart’s accountant, who normally drafted all such documents for La-kart.

Breaux’s assertion that he had no ownership interest in Hurricane’s (to support his claim that payments to start Hurricane’s represented the consideration to buy DePodesta’s interest in Lakart) was refuted by the documentary evidence, i.e., Breaux’s 2009 tax return and Hurricane’s corporate documents. Likewise, the claim that Breaux paid $30,000.00 for the purchase of Lakart through payments made to start Hurricane’s, was contradicted by DePodesta’s testimony, and by the fact that the checks paid on behalf of Hurricane’s were dated after the execution of the Document. As previously stated, the Document, dated August 24, 2009, represents that the $30,000.00 was paid in full and received by DePodesta.

Finally, the evidence presented by De-Podesta supports his assertion that he did not know of the existence of the Document until February 10, 2010. Specifically, De-Podesta continued to receive his regular weekly paychecks from Lakart through February 2010, supporting his claim that he did not suspect anything before that time. DePodesta’s actions in February 2010, upon learning that he was removed from Lakart’s account at the Omni Bank, further reflected his |8lack of prior knowledge. At trial, DePodesta testified that on February 11, 2010, he sent letters to various parties concerning his ownership in Lakart. The letter sent to Lakart’s payroll company, Paychex, Inc., was introduced into evidence, and states in pertinent part: “This letter is to notify you that as of February 10, 2010, I have learned that I have been locked out of my company, Lakart Food Services, LLC and all its accounts due to a forged document by my partner, Dail Breaux dated August 24, 2009.”

Clearly, in this case, the dispositive factual issue is whether DePodesta consented to the sale of his business. The record supports the trial court’s finding that De-Podesta’s consent was lacking.

Appellee’s assignment of error:

In his brief to this Court, DePodesta asserts that the trial court erred by failing to use the proper legal standard for determining whether Breaux committed fraud. DePodesta requests that this Court review the matter de novo (using the proper preponderance of the evidence standard) and find fraud on the part of Breaux.

This assignment of error is not properly before the Court. A party who seeks to have a trial court judgment revised, modified, set aside, or reversed must either appeal or file an answer to the appeal. La. C.C.P. art. 2133; see also Walker v. Clarendon National Insurance Co., 2001-2338, p. 2 (La.12/14/01), 802 So.2d 1285, 1286. Because DePodesta neither appealed nor answered the appeal, we are precluded from entertaining this issue.

CONCLUSION

Considering our standard of review, and the evidence presented at trial, we cannot find the trial court was manifestly erroneous or clearly wrong in its | fldetermination that a contract did not exist for the sale of DePodesta’s ownership interest in Lakart to Breaux. Accordingly, we affirm.

AFFIRMED

      . A March 29, 2010 consent judgment ordered that DePodesta be put back on the payroll pending trial.

      . Breaux asserts an additional assignment of error, to wit: the trial court erred in not realizing that Breaux did not voluntarily agree to put DePodesta back on the payroll at Lakart, because Breaux’s statement was made under duress. However, the issue raised in this assignment of error does not stem from the July 27, 2012 judgment on appeal here. Rather, the agreement to put DePodesta back on the payroll was the subject of a prior consent judgment rendered by the trial court on March 29, 2010. Therefore, this assignment of error will not be discussed herein.


author: GENOVESE, Judge. EZELL, Judge,

text:
    Melissa B. DUGAS v. Officer Larry THERIOT, II, Lafayette City Police Department and Lafayette City-Parish Consolidated Government.
    Nos. 12-993, 12-1015.
    Court of Appeal of Louisiana, Third Circuit.
    June 19, 2013.

      Michael S. O’Brien, William L. Goode, The Goode Law Firm, P.L.C., Lafayette, LA, for Plaintiff/Appellee/Respondent, Melissa B. Dugas.
    Kenneth W. Jones, Jr., Lisa E. Mayer, Gibson-Gruenert, PLLC, Lafayette, LA, for Defendants/Appellees/Applicants, Larry Theriot, II, and Lafayette City-Parish Consolidated Government.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, JIMMIE C. PETERS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this personal injury case, the Defendants, Larry Theriot, II (Officer Theriot), and the Lafayette City-Parish Consolidated Government (LCG), appeal the trial court’s grant of the motion for partial summary judgment filed by the Plaintiff, Melissa B. Dugas, on the issue of liability. Additionally, Officer Theriot and LCG seek a supervisory writ of review of the trial court’s denial of their cross-motion for summary judgment. This court granted the unopposed motion'to consolidate the writ with the appeal for our appellate review. For the following reasons, we reverse the judgment of the trial court granting Ms. Dugas’ motion for partial summary judgment, and we deny the writ application on behalf of Officer Theriot and LCG seeking a reversal of the trial court’s denial of their motion.

FACTS AND PROCEDURAL HISTORY

On February 15, 2008, Officer Theriot, with the Lafayette City Police Department, and Ms. Dugas were involved in an automobile accident in Lafayette, Louisiana. When the accident occurred, Officer Theriot was en route to investigate a separate traffic accident. In responding to that call with emergency lights and sirens activated, Officer Theriot traveled down Johnston Street, turned left onto Cajun-dome Boulevard, and continued northbound toward its intersection with Congress Street. Meanwhile, Ms. Dugas was traveling westbound on Congress Street in the outside lane in the direction of Cajun-dome Boulevard. The collision between Ms. Dugas and Officer Theriot occurred in the intersection of Congress Street and Cajundome Boulevard when Ms. Dugas struck the front passenger side of Officer Theriot’s vehicle. At the time the accident occurred, it was approximately 4:25 p.m.; it was raining; and the roadway was wet.

|2As a result of the accident, Ms. Dugas filed suit against Officer Theriot and LCG for injuries she allegedly sustained in the accident. The parties subsequently filed cross-motions for summary judgment on the issue of liability. After taking those matters under advisement, the trial court granted Ms. Dugas’ motion for partial summary judgment and denied Officer Theriot and LCG’s motion for summary judgment. A judgment consistent therewith was signed by the trial court on August 8, 2012. Officer Theriot and LCG sought a supervisory writ of review of the denial of their motion for summary judgment, and they appealed the grant of Ms. Dugas’ motion for partial summary judgment. This court ordered the consolidation of the writ with the appeal for oral argument and our appellate review.

ASSIGNMENTS OF ERROR

In the appeal, Officer Theriot and LCG assert the following assignments of error:

I. The [t]rial [cjourt erred in granting [Plaintiffs motion for partial summary judgment on the issue of liability by holding the provisions of [La.R.S.] 32:24(B) inapplicable and failing to apply the reckless disregard standard; there was no reckless disregard.
II. The [tjrial [c]ourt erred in relying on the hypothetical and speculative testimony of another officer attached to [Pjlaintiffs Reply Brief.
III. The [tjrial [cjourt erred in relying on the case of Spears v. City of Scott, [05-230] ([La.App.] 3 Cir. 11/2/05)[,] 915 So.2d 983[, writ denied, 05-2478 (La.3/31/06), 925 So.2d 1259].
IV. Alternatively, the [t]rial [e]ourt erred by failing to consider that the actions of Officer Theriot were also protected ^pursuant to Louisiana’s discretionary immunity statute, [La.R.S.] 9:2798.1.
V.Alternatively, the evidence does not support the finding of 100% fault to Officer Theriot and 0% fault to [Plaintiff for this accident, where [P]laintiff did not request a decision of comparative fault issues and there exist genuine issues of material fact regarding same.

LAW AND DISCUSSION

Our supreme court has stated the following relative to motions for summary judgment:

Appellate 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. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910; Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Duncan v. USAA Ins. Co., 06-0363, p. 4 (La.11/29/06), 950 So.2d 544, 546-547. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (per curiam (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-66.

Smitko v. Gulf South Shrimp, Inc., 11-2566, pp. 7-8 (La.7/2/12), 94 So.3d 750, 755.

However, pertinent to our review of the matter before us, we remain mindful of the following cautionary language:

[I]t is not the function of the trial court to determine or inquire into the merits of issues raised, and the trial court may not weigh the conflicting evidence on a material fact. If evidence presented is subject to conflicting interpretations, summary judgment is not proper.
Further,
14Summary judgment may not be granted when supporting and opposing documents reveal conflicting versions of the facts which may only be resolved by weighing contradicting testimony and assessing witness credibility.
Johnson v. Gov’t Employees Ins. Co., 05-476, pp. 5-6 (La.App. 3 Cir. 11/2/05), 916 So.2d 451, 454 (quoting Federated Rural Elec. Ins. Corp. v. Gulf South Cable Inc., 02-852, pp. 4-5 (La.App. 3 Cir. 12/11/02), 833 So.2d 544, 546-47 (footnotes omitted)). “If in evaluating the evidence, the court considered the merits, made credibility determinations, evaluated testimony, or weighed evidence, summary judgment must be reversed.” Strickland v. Doyle, 05-11, p. 4 (La.App. 3 Cir. 4/6/05), 899 So.2d 849, 852, writ denied, 05-1001 (La.6/3/05), 903 So.2d 466.

Broussard v. Hertz Equip. Rental Corp., 09-177, pp. 6-7 (La.App. 3 Cir. 12/16/09), 27 So.3d 337, 341.

In this case, it is undisputed that the accident involving Ms. Dugas and Office Theriot occurred at approximately 4:25 p.m. at a busy, multi-lane intersection while it was raining or drizzling. Additionally, it is not disputed that Officer Theriot was responding to a call to investigate a separate major accident and was traveling with his lights and sirens activated. Finally, at no time prior to the impact did Ms. Dugas either see Officer Theriot’s vehicle, or see his emergency lights, or hear the sirens.

According to Officer Theriot, as he was proceeding in a northerly direction on Ca-jundome Boulevard, with his lights and sirens activated, the vehicles located in the turning lane and in the northbound lane of Cajundome Boulevard “moved out of [his] way, so that [he] could approach the intersection.” Because the light was red, Officer Theriot came to a stop between these vehicles. After determining that the traffic in the multiple lanes of the intersection had come to a stop and the intersection was “clear,” Officer Theriot entered the intersection while the light was still red, utilizing his lights, sirens, and air horn. He testified that he was “constantly scanning left to right” as he progressed “maybe about seven or eight |scar lengths” into the intersection and determined that all of the traffic had stopped. According to Officer Theriot, when he saw Ms. Du-gas’ vehicle, the impact was “almost instantaneous.”

Meanwhile, Ms. Dugas, who was traveling westbound on Congress Street, approaching its intersection with Cajundome Boulevard, was faced with a green light. Ms. Dugas testified that she did not hear any sirens, nor did she hear an air horn. She also did not see any emergency lights. Additionally, Ms. Dugas did not observe that all other cars at the intersection were stopped. According to her testimony, at no point before the impact occurred did Ms. Dugas see Officer Theriot’s vehicle.

Michelle Borel testified that she was in the outside, southbound lane on Cajun-dome Boulevard and that she had come to a stop at the intersection behind another vehicle. Ms. Borel first heard sirens, and then she saw Officer Theriot’s vehicle as he approached the intersection. She recalled that “[t]he cars at the intersection both ways, Congress and Cajundome Boulevard, were all stopped.” Ms. Borel stated that Officer Theriot “slowed down” before he entered the intersection; however, she had “no idea whether he came to a complete stop.” In describing how Officer Theriot advanced through the intersection, she explained that “[ojnce he was in the intersection, he was moving. He did not stop at each stage throughout the intersection.” According to Ms. Borel, once in the intersection, Officer Theriot “appeared to be accelerating.” Ms. Borel could not explain why the Dugas vehicle did not stop at the intersection as the other vehicles had done. It was her testimony that “even if whoever was driving the [Dugas] vehicle couldn’t here [sic], there were enough visual signs to tell her something was going on, and [she] obviously didn’t look.” These signs included all cars at the intersection being stopped, including those vehicles that had a green light, and, | fiin her opinion, the driver of the Dugas vehicle “should have looked around to her surroundings to see why are these cars stopped.”

James Falterman was stopped at the red light in the southbound, left turning lane of Cajundome Boulevard. Mr. Fal-terman testified that Officer Theriot had his lights and sirens on; however, this witness testified that he could not remember if Officer Theriot came to a complete stop before entering the intersection.

John Chitwood was southbound on Ca-jundome Boulevard and was stopped in the turning lane at the intersection behind Mr. Falterman. He recalled that there were one or two cars in front of him. According to this witness, Officer Theriot had his lights and sirens on. Mr. Chitwood testified that Officer Theriot came to a stop prior to entering the intersection. After stopping, Officer Theriot proceeded through the intersection at “a normal rate of speed.”

Gordon Kirkman was stopped in the inside, southbound lane of Cajundome Boulevard. Mr. Kirkman observed Officer Theriot approaching the intersection from the opposite direction on Cajundome Boulevard with his lights and sirens on. He testified that Officer Theriot passed between the two lanes of cars that were stopped on Cajundome Boulevard, and then he “proceeded out, and stopped again, and then proceeded across.” It was his recollection that Officer Theriot “stopped at the intersection, proceeded forward about one car’s length, and then stopped a second time. [Officer Theriot] then proceeded across the intersection as if it was clear.” Mr. Kirkman estimated Officer Theriot’s speed at twenty to twenty-five miles per hour.

Expert opinions were also introduced in support of the respective motions. Dean Tekell, Ms. Dugas’ expert in accident reconstruction, determined that Officer Theriot accelerated from his stopped position to the point of impact, attaining speeds of seventeen to twenty-three miles per hour. In Mr. Tekell’s opinion, |70fficer Theriot did not inch across the intersection or stop prior to entering Ms. Dugas’ lane of travel. Based upon Ms. Dugas’ speed of forty-five miles per hour, he concluded that Officer Theriot and Ms. Dugas had approximately one second to see one another prior to impact.

Joseph Blaschke, a licensed professional engineer offering consultation in accident reconstruction, testified as an expert for the defense. Mr. Blaschke opined that “[t]here is no doubt that the police vehicle had stopped before entering the intersection and was then accelerating through the intersection at a relatively slow speed (according to the testimonies of the three witnesses).” He concluded that Ms. Du-gas was traveling at forty-five miles per hour, and Officer Theriot was traveling at a speed of nineteen to twenty-three miles per hour. Mr. Blaschke opined that Ms. Dugas “failed to respond to the visual information presented to her[,]” namely, the other vehicles that were stopped at the intersection despite their having a green light. In his opinion, “Ms. Dugas was obviously inattentive to the conditions that existed at the intersection” and “[a] driver who is exercising appropriate caution should have responded to that unusual condition.”

Considering the duties of the respective drivers, we first note that La.R.S. 32:125 provides that the driver of an authorized emergency vehicle is not relieved of the duty to drive with due regard for the safety of all persons using the highway. Officer Theriot knew he was proceeding against a red signal at a very busy intersection during one of the busiest times of the day. It is not disputed that he was traveling with his emergency lights and sirens on and that he stopped at least once at the intersection, according to the witnesses. Whether he stopped more than once, whether he inched out into the intersection, and to what degree he was assessing the situation are all matters of uncertainty and subject to dispute. One | ¡^witness described his progress as being a “normal rate of speed[,]” while others said he was “accelerating” through the intersection.

On the other hand, Ms. Dugas also had a duty to yield the right of way to Officer Theriot pursuant to La.R.S. 32:125, which requires the drivers of vehicles to yield the right-of-way to an authorized emergency vehicle making use of audible or visual signals. While the other vehicles at the intersection heeded to the emergency lights, sirens, and air horn, and came to a stop at the intersection despite having a green light, Ms. Dugas testified that she did not see Officer Theriot’s emergency lights and that she did not hear the sirens or air horn. Notably, she was traveling through this busy, multi-lane intersection, on wet roads, at the maximum speed of forty-five miles per hour, and she did not notice that the other vehicles were all stopped, nor did she take evasive action.

In considering the cross-motions for summary judgment, the trial court was presented with differing testimony of the lay witnesses as to the facts in this case. The trial court was also presented with differing expert opinions on the issue of fault. The trial court also heavily considered the testimony of Sergeant Lance Leblanc, the investigating officer. Notably, Sergeant Leblanc was not present at the time of this accident, nor was he testifying as an expert witness; yet, the trial court was “impressed” with, and inappropriately relied upon, Sergeant Leblanc’s testimony of how he would have proceeded through the intersection. Given this, the trial court necessarily weighed the evidence and evaluated the credibility of the witnesses. As stated above, “[i]f in evaluating the evidence, the court considered the merits, made credibility determinations, evaluated testimony, or weighed evidence, summary judgment must be reversed.” Broussard, 27 So.3d at 341 (quoting Strickland, 899 So.2d at 852). | ^Finally, we note that the trial court’s reliance on Spears v. City of Scott, 05-230 (La.App. 3 Cir. 11/2/05), 915 So.2d 983, writ denied, 05-2478 (La.3/31/06), 925 So.2d 1259, is discussed at length by both parties in support of their respective positions. Acknowledging same, we find Spears to be readily distinguishable from this matter for two reasons. Spears was decided after a trial on the merits and not on a motion for summary judgment. Secondly, the evidence in Spears was that the officer “punched it” through the intersection. Spears, 915 So.2d at 988. While the facts in the instant case are in dispute, there is no evidence in this record that Officer Theriot “punched it” through the intersection. Accordingly, Spears is readily distinguishable and not dispositive of the issues presently before us.

Our de novo review of the record reveals questions of material fact on the issue of the comparative fault, vel non, of Officer Theriot and Ms. Dugas and also on the issue of discretionary immunity. Therefore, we find that the trial court erred in granting Ms. Dugas’ motion for partial summary judgment on the issue of liability. We further find that the trial court was legally correct in denying the motion for summary judgment filed by Officer Theriot and LCG.

DECREE

Based upon the foregoing, we reverse the judgment of the trial court granting the motion for partial summary judgment in favor of Melissa Dugas. Additionally, we deny the writ application on behalf of Officer Theriot and Lafayette City-Parish Consolidated Government seeking a reversal of the trial court’s denial of their motion for summary judgment. The $2,046.59 court costs of this appeal are assessed equally against the respective parties. Accordingly, this case is remanded to the trial court for further proceedings consistent herewith.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

EZELL, J., dissents in part and concurs in part.

SAUNDERS, J., dissents for the reasons assigned by Judge EZELL.

EZELL, Judge,

dissenting in part and concurring in part.

hi dissent from the majority’s decision to reverse the trial court’s judgment granting partial summary judgment in favor of Ms. Dugas. I concur with the majority’s denial of Officer Theriot’s and LCG’s writ application.

This intersection of Congress Street and Cajundome Boulevard is a busy, multi-lane intersection at any time of the day. The accident between Officer Theriot and Ms. Dugas occurred on a Friday at 4:25 p.m. Traffic at this time would be extremely congested. Officer Theriot did stop before entering the intersection and engaged his lights and air horn. However, Officer Theriot never made any efforts to stop again and check traffic, even though he knew he was proceeding against a red light. Both experts testified that Officer Theriot got up to a speed of twenty-three miles per hour as he crossed the intersection. This testimony was supported by eyewitness testimony that Officer Theriot appeared to be accelerating through the intersection. Ms. Dugas was proceeding with a green light. Ms. Dugas did not see any emergency lights or hear a siren. Ms. Dugas admitted that vehicles in the left-turning lane were stopped. However, it is reasonable to assume that they were waiting for oncoming traffic to clear before turning left. This would not impede Ms. Dugas from proceeding directly across the intersection under normal circumstances.

IsWhile Officer Theriot testified he was continuously monitoring traffic, it is clear that the vision of other drivers would be obscured by stopped vehicles. Also, for the same reason, a vehicle approaching the intersection would not have a clear view of the entire intersection. Officer Theriot was in the superior position to know that he was entering the intersection on a red light, creating a hazardous condition. By continuing to accelerate, he gave up the chance to stop and avoid an accident with any car that might not see his car or lights, or hear his siren. Therefore, I agree with the trial court that there is no question of material fact and Ms. Dugas is entitled to partial summary judgment on the issue of liability.

      . Ms. Dugas also named the Lafayette City Police Department as a defendant; however, not being a juridical entity with the capacity to be sued, it was subsequently dismissed from the lawsuit.

      . The assignments of error contained in the writ application are set forth and stated differently than in the appeal; however, because they substantively assert the same errors of the trial court and are encompassed within those quoted above, they are not duplicated herein.


author: GREMILLION, Judge.

text:
    Anthony AGILAR v. LOUISIANA STATE RACING COMMISSION.
    No. 13-144.
    Court of Appeal of Louisiana, Third Circuit.
    June 19, 2013.
    See also 115 So.3d 1271, 2013 WL 3013900.

      Holden Hoggatt, Hoggatt Law Group, APLC, Lafayette, LA, for PlaintiffAppel-lant, Anthony Agilar.
    Rhea P. Loney, Assistant Attorney General, New Orleans, LA, for Defendant/Ap-pellee, Louisiana State Racing Commission.
    Court composed of J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

hMr. Anthony Agilar, a licensed horse trainer, appeals the adverse ruling of the trial court in its judicial review of his suspension by the Louisiana State Racing Commission. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 16, 2012, Bad John, a horse trained by Agilar, was entered in a race at Evangeline Downs. Bad John won that race and was escorted to the test barn for blood and urine sampling. Those samples were submitted to the Louisiana State University Veterinary School for analysis, which detected the presence of dermor-phin, an opioid found in the skins of certain South American frogs. Split sample testing also detected dermorphin. A hearing before the Evangeline Downs stewards resulted in a six-month suspension for Agi-lar, and his case was referred by the stewards to the Louisiana State Racing Commission.

On May 31, 2012, another of Agilar’s horses, LaPile Creek, ran and won at Evangeline Downs. LaPile Creek tested positive for dermorphin following its win. Agilar testified before the racing commission that he did not exercise his right to test LaPile Creek’s split sample “because I know the horse had the medicine in it[.]” LaPile Creek had run before Bad John’s split sample had been tested.

Agilar’s veterinarian, Dr. Kyle Hebert, or his associate, Dr. Stephanie Frauning, administered what they told Agilar were herbal remedies. Agilar blamed Dr. Hebert or Dr. Frauning for administering the dermorphin. Indeed, Agilar testified that Dr. Hebert told him that the substance he was giving the horses was “just a natural herb that can’t be detected.” He further likened its effects to that of Equipoise, a formerly permitted drug.

|2The Louisiana State Racing Commission heard two days of testimony and argument in several cases, all of which involved actions against trainers over the alleged use of dermorphin. During Agi-lar’s hearing, the commission’s attorney began to question the LSU Veterinarian School tester, Dr. Steven Barker. Agilar said that he had no questions about the testing and verbally stipulated to its accuracy. Agilar had already entered into written stipulations regarding the chain of custody of Bad John’s and LaPile Creek’s samples.

Decisions in the cases were rendered by the commission after all cases had been heard. The commission handed down a three-year suspension and fine to Agilar, who sought judicial review before the Twenty-seventh Judicial District Court. Agilar’s case was consolidated for review with that of Kyi Lormand, whose matter has also been consolidated with Agilar’s on appeal. The trial court affirmed the commission’s decision. This appeal followed.

ASSIGNMENTS OF ERROR

Agilar assigns the following as errors of the trial court:

1. That the Trial Court found that the altered record filed by the Commission with the Trial Court was “the complete record of the proceeding” as required and contemplated by La[.] R.S. 49:964;
2. That the Trial Court found that the Commission may introduce and rely upon evidence admitted at the Commission proceeding but may omit and withhold the same evidence regarding Dermorphin from the “entire record” required for judicial review, including the basis for stipulations, relevant scientific evidence, relevant testimony, and exculpatory documentary evidence when such evidence affects substantial rights of the Appellants;
3. That the Trial Court found that the stipulations made by Appellants for purposes of the agency hearing may function to render incompetent evidence competent for purposes of Judicial Review;
4. The Trial Court did not disregard the purported stipulations as incompetent evidence despite the fact that the stipulations were not properly identified, marked and filed into the record;
|s5. That the Trial Court denied Appellants’ Motion to Strike the record as in violation of La R.S. 49:964;
6. That the Trial Court allowed the Commission to modify, alter, re-create, withhold and manipulate the Record submitted to the Trial Court such that it was unfairly and prejudicially different from the true record of the proceeding;
7. That the Commission complied with the mandate that the Commission allow the parties to choose from a list of referee laboratories and that substantial rights of the Appellants were not thereby prejudiced;
8. That the Trial Court found that substantial rights of the Appellants were not unfairly prejudiced by the Commission’s failure, prior to the hearing, to make available and provide actual notice of the evidence to be used against Appellants, particularly when incorporated by reference to other evidence not provided nor made available to Appellants;
9. That the Trial Court was not required to disregard incompetent evidence in its review of the agency record, including purported scientific evidence which does not satisfy the constitutional requirements governing the admissibility of scientific evidence;
10. That the agency may allow introduction of evidence obtained in violation of the Rules of Racing, which imposes only a minimal standard of Due Process;
11. That the Trial Court found that the Commission did not consider and weigh the withheld Dermorphin evidence and testimony prior to issuing its ruling despite having received the evidence out of order, in a consolidated manner where all the Dermophin-relat-ed matters were heard together and upon irregular procedure, and all of the rulings were issued after having heard the entirety of the evidence regarding Dermorphin;
12. That the Trial Court found that the purported stipulations extended to waive the right to select an authorized referee laboratory;
13. The Trial Court allowed the Commission to require evidence offered by licensees at an agency hearing to meet a higher standard of admissibility than is required of evidence offered by the Commission, specifically that the licensees’ evidence be certified or notarized as a condition of admissibility whereas the evidence introduced by the Commission was neither properly certified, introduced, nor notarized; and,
|414. That the Trial Court affirmed the agency decision without evidence in the record showing that the Commission took Notice of Judicially Cognizable facts or otherwise verified the reliability or methodology of the new Dermorphin test.

ANALYSIS

Horse racing is heavily regulated. The Louisiana Legislature has created a system of regulations found in Title 4, Chapter 4, of the Louisiana Revised Statutes. The scheme requires the licensure of horse trainers, jockeys, and owners. The Louisiana State Racing Commission was created to fulfill the objectives of the regulatory scheme. The commission is responsible for promulgating regulations governing racing and investigating and resolving alleged violations.

The regulations that apply to pharmaceuticals administered to horses are found in La.Admin.Code tit. 35, § 1.1501 et seq. Section 1501(A) provides:

Except as a licensed veterinarian may otherwise be permitted by law or in his or her general veterinary practice, the administration, use, application and/or possession of any narcotic, stimulant, depressant, or local anesthetic are prohibited within the confines of a race track or within its stables, buildings, sheds or grounds, or within an auxiliary stable area (as defined in § 5705) where horses are lodged or kept which are eligible to race over a race track of any association holding a race meeting.

Section 1505 governs the administration of anti-inflammatory medication, which may not be administered within twenty-four hours of a race in which the horse is entered. “Bleeder” medication is regulated by Section 1507 and may not be administered within four hours of a race the horse is to run. Allowed bleeder medication is listed in Section 1509.

| ¡¡Chapter 17 of Title 35, part I, of the Louisiana Administrative Code is entitled, “Corrupt and Prohibited Practices.” This chapter, too, provides for the administration of drugs to horses. Section 1711 provides,

No medication shall be administered to a horse to be entered or entered to race as may be provided in Chapter 15. If it is necessary to do so, it must be reported to the stewards by the trainer and the horse shall be scratched, if entered, as ineligible to run.

Only substances approved by the United States Food and Drug Administration for human or animal use, ingestion or injection, or for testing purposes are permitted. La.Admin.Code tit. 35, § 1.1707. Controlled medication is permitted under the conditions established in Chapter 15. La.Admin.Code tit. 35, § 1.1725. Owners, trainers, and grooms must guard horses to prevent substances not permitted in Chapter 15 from being administered to the horses they have in their care. La.Admin.Code tit. 35, § 1.1727.

Prohibited drugs and substances are assigned to five classes, as defined in Uniform Classification Guidelines for Foreign Substances, a publication of the Association of Racing Commissioners International (RCI). La.Admin.Code tit. 35, § 1.1795. Unknown or unidentified substances not listed in the RCI guidelines are to be appropriately classified by the state chemist. Id. The RCI guidelines are used to determine the appropriate sanction for a violation. See La.Admin.Code tit. 35, § I. 1797. A Class I violation is the most severe, punishable by a license suspension of not less than one year and not more than five years, a fine of $5,000, and redistribution of the purse the horse won. Id. Dermorphin was classified by RCI as a Class I substance prior to the date of Bad John’s race.

Horses are tested in a detention barn. La.Admin.Code tit. 35, § 1.1753. The samples to be tested are split into roughly equal portions. La.Admin.Code tit. 35, § 1,11775. One portion is sent to the state chemist for analysis; the other is held for “referee” testing should the state chemist’s analysis conclude that prohibited substances were detected. Id. A positive finding by the state chemist is prima facie evidence that prohibited substances have been administered to a horse and that the owner, trainer, and/or groom has been negligent in the handling of the horse. La.Admin.Code tit. 35, § 1.1729.

Agilar’s first six assignments of error address alleged irregularities in the record. The proceedings held by the commission on September 27-28, 2012, all concerned alleged Class I violations involving dermorphin. The commission heard evidence in every case before addressing its findings in the individual cases. When the matter came before the trial court on judicial review, only the portion of the record the commission found relevant to Agilar’s case was included.

Louisiana Revised Statute 49:964, part of the Administrative Procedures Act, governs judicial review of administrative adjudications. Section 964 requires that the review be “confined to the record.” It further provides that the trial court may take proof of alleged irregularities in procedure before the agency. The reviewing trial court may reverse the agency’s decision if the appellant’s substantive rights have been prejudiced because the agency’s findings are in violation of statutory or constitutional provisions; in excess of the agency’s statutory authority; made upon unlawful procedure; affected by other error of law; arbitrary or capricious or characterized by an abuse of, or clearly unwarranted exercise of, discretion; or not supported and sustained by a preponderance of the evidence. In determining whether the adjudication was supported and sustained by a preponderance of the evidence, the trial court is directed to make its own findings of fact, giving due regard to the agency’s determination of credibility issues.

[7Agilar stipulated to the chain of custody of the samples taken from Bad John and LaPile Creek, the positive tests for dermorphin, and “the science behind those tests.” The trial court found on its review that the stipulation essentially obviated the need for further inquiry of the commission’s findings. We agree.

Stipulations have the effect of a judicial admission and are binding upon parties and the trial court when they are not in derogation of law. R.J. D’Hemecourt Petroleum, Inc. v. McNamara, 444 So.2d 600, 601 (La.1983), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 39 (1984). Thus, the fact and record the trial court had before it were those portions specifically relevant to Agilar’s case, including the stipulation that dermorphin was detected in his horses’ samples. Agi-lar stipulated to the science behind the sampling and testing.

The trainer is the “absolute insurer” of the horse’s condition. La.R.S. 4:150. Substances that are not permitted are, by exclusion, prohibited under the regulations governing horse racing. Dermorphin is not a permitted substance. Once Agilar stipulated to the presence of dermorphin in the horses’ samples, the commission had no need of any technical testimony on the issue of dermorphin. Agilar stipulated to the presence of a Class I drug in his horses’ systems.

The stipulation also obviates consideration of assignments of error 8, 9, 10, 11, and 14, all of which challenge the competency of the evidence presented to the commission. The only relevant evidence presented to the commission was Agilar’s stipulation to positive findings of dermor-phin in Bad John’s and LaPile Creek’s systems.

Assignment 7 argues that the trial court erred in finding that the commission fulfilled its mandate to allow Agilar to choose from a list of referee laboratories to conduct a split sample test. The requirement is found in La.Admin.Code tit. 35, § | J.1775. It provides in pertinent part, “The commission shall provide a list of referee laboratories which must be able to demonstrate competency for that drug or substance at the estimated concentration reported by the primary laboratory, from which a trainer must select one.” The commission has been authorized to choose referee laboratories. In determining which laboratories to include, the commission must have discretion. If only one laboratory is deemed competent to referee samples, or if only one laboratory agrees to act as a referee laboratory, that certainly cannot invalidate the procedure. The testing must take place. We reject Agi-lar’s assignment of error 7.

Any discussion of Agilar’s assignment of error 12 is also obviated.

By assignment of error 13, Agilar challenges a commission rule requiring that the evidence he wished to introduce be certified or notarized before it is admitted. Agilar failed to brief this issue in violation of Uniform Rules—Courts of Appeal, Rule 1-3. Furthermore, Agilar failed to identify any evidence that he wanted to introduce and was not allowed to, or that he attempted to introduce at the adjudication hearing and was not allowed to. No such attempt was made on the record.

CONCLUSION

Under the racing regulations and statutes, substances not permitted are prohibited. Dermorphin is not permitted. The trainer, as the “absolute insurer” of the condition of Ms horse, bears responsibility for any prohibited substances detected.

The decision of the trial court is affirmed. All costs of this appeal are taxed to appellant, Anthony C. Agilar.

AFFIRMED.

      . "Bleeders” are horses that have suffered exercise-induced pulmonary hemorrhaging. La.Admin.Code tit. 35, § 1.1507.


author: GENOVESE, Judge.

text:
    Leola HUNT v. GOLDEN CORRAL CORPORATION.
    No. 13-06.
    Court of Appeal of Louisiana, Third Circuit.
    July 3, 2013.
    John Jefcoat, Holly LaMarche, Britney L. Hebert, Galloway Jefcoat, L.L.P., Lafayette, LA, for Plaintiff/Appellant, Leola Hunt.
    Brent N. Carriere, Lafayette, LA, for Defendant/Appellee, Golden Corral Corporation.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

| plaintiff, Leola Hunt, filed suit against Golden Corral Corporation (Golden Corral) for damages related to a trip-and-fall accident. The trial court entered summary judgment in favor of Golden Corral, finding that Plaintiffs lacked the requisite evidence to prove that the restaurant’s sidewalk was unreasonably dangerous. Plaintiffs have appealed. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to the petition filed in this matter, “[o]n ... February 23, 2006, Leola Hunt was a pedestrian walking on the sidewalk located on the exterior of the Golden Corral Restaurant on Ambassador Caffery Parkway in Lafayette, Louisiana.” Mrs. Hunt claims that her “walker became stuck in a void where the landscape edging meets the ... sidewalk, causing her to fall into the landscaped area.” She suffered “injuries to her left leg, right hand, complications to a transplanted kidneyt,] and bruising and soreness of her body in general.” Mrs. Hunt contends that her injuries “are the result of the wanton and gross negligence” of Golden Corral for “the unreasonably dangerous condition created by the improperly maintained sidewalk[.]” Mrs. Hunt filed her petition for damages on September 8, 2006.

Golden Corral filed a motion for summary judgment on May 12, 2011, contending that Plaintiffs lacked the requisite evidence to prove that its sidewalk was unreasonably dangerous or that it had the requisite prior knowledge that an unreasonably dangerous condition existed. In support of its motion, Golden Corral offered excerpts from the depositions of Albert Broussard, Mrs. Hunt’s husband, Land Jules R. Courville, the front-of-the-house manager for Golden Corral on the date of Mrs. Hunt’s accident. Both men were present when Mrs. Hunt’s trip-and-fall accident occurred.

According to Mr. Broussard’s deposition testimony, he was uncertain of the size of the gap between the sidewalk and the metal landscape edging where the wheel of Mrs. Hunt’s walker allegedly became lodged prior to her fall. According to Mr. Courville, the gap between the sidewalk and the metal landscape edging was less than a half an inch. Mr. Courville also stated that he witnessed Mrs. Hunt fall after she lost her balance when she leaned over to spit into the flowerbed.

Golden Corral’s motion was denied by the trial court on the basis that there were genuine issues of material fact relative to the size of the alleged gap between the sidewalk and the landscape edging and whether or not the sidewalk was considered a handicap entrance, which would have required compliance with Americans with Disability Act (ADA) regulations. A judgment to this effect was signed by the trial court on June 23, 2011.

Golden Corral filed a second motion for summary judgment on May 14, 2012. Golden Corral reiterated its argument that Plaintiffs lacked the requisite evidence to prove that its sidewalk was unreasonably dangerous or that it had the requisite prior knowledge that an unreasonably dangerous condition existed. In support of its motion, Golden Corral offered the affidavit of J. David Brinson, a licensed architect, attesting to the condition of the sidewalk. According to Mr. Brinson, he viewed photographs of the sidewalk that were taken immediately after Mrs. Hunt’s fall as well as the present condition of the sidewalk. He opined that the sidewalk where Mrs. Hunt fell complied with ADA regulations and that it did not present an unreasonable risk of harm to the patrons of Golden Corral.

| sAt the July 9, 2012 hearing, the trial court ruled:

The issue, of course, is whether or not— one of the issues is whether or not the sidewalk itself is unreasonably dangerous, and, of course, there is no evidence that that is correct. It’s a question of what happens if somebody goes off the sidewalk with a walker. We now have an expert saying that this situation was acceptable. In fact, in his report, he even says that it was probably a good thing because it served as a barrier — it was a different color, and it served as a demarcation of the edge of the sidewalk.
I’m going to grant the motion for summary judgment. [Plaintiffs have] been unable to come up with substantial facts to refute the premise that the expert presents and I don’t think [they] could meet [their] burden of proof at trial.

The trial court’s judgment stated that Golden Corral was “entitled to summary judgment in its favor dismissing [Plaintiffs’ claims as there was no disputable evidence establishing that the alleged condition causing the incident was an unreasonable risk of harm.” Plaintiffs have appealed this judgment.

ASSIGNMENTS OF ERROR

On appeal, Plaintiffs contend that the trial court erred in: (1) granting summary judgment in favor of Golden Corral; (2) relying upon the opinion of Defendant’s expert; and, (3) ruling that they would be unable to meet their burden of proof at trial.

LAW AND DISCUSSION

Our Louisiana Supreme Court has set forth the governing jurisprudence relative to a motion for summary judgment and our appellate standard of review thereof as follows:

Appellate 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. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910; Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342, 345 (La. 1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, |4and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Duncan v. USAA Ins. Co., 06-0363, p. 4 (La.11/29/06), 950 So.2d 544, 546-547. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (per curiam )(citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-66.

Smitko v. Gulf South Shrimp, Inc., 11-2566, pp. 7-8 (La.7/2/12), 94 So.3d 750, 755.

In the instant case, Plaintiffs allege that Golden Corral was negligent due to an unreasonably dangerous sidewalk at its restaurant. As such, Plaintiffs have the burden of proving Golden Corral’s negligence at trial. Davis v. Country Living Mobile Homes, Inc., 11-471 (La.App. 3 Cir. 10/19/11), 76 So.3d 1248 (citing Bias v. Scottsdale Ins. Co., 10-378 (La.App. 3 Cir. 11/10/10), 50 So.3d 964). Thus, Golden Corral, as movant of the motion for summary judgment herein, does not bear the burden of negating all essential elements of Plaintiffs’ claims. See La.Code Civ.P. art. 966(C)(2). Rather, Golden Corral need only “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.” Id. If Plaintiffs “fail[ ] to produce factual support sufficient to establish that [they] will be able to satisfy [their] evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

Plaintiffs assert them action against Golden Corral pursuant to La.Civ.Code art. 2817 and La.Civ.Code art. 2317.1. Louisiana Civil Code Article 2317 provides in part: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by ... the things which we have in our ^custody. This, however, is to be understood with the following modifications.” Pursuant to La. Civ.Code art. 2317.1 (emphasis added):

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

At trial, Plaintiffs must prove (1) the sidewalk was in Golden Corral’s custody and control; (2) the sidewalk contained a defect which presented an unreasonable risk of harm to others; and, (3) Golden Corral knew or should have known of the defect. See Davis, 76 So.3d 1248. Golden Corral argues that Plaintiffs are unable to prove two essential elements of then-claim: (1) an unreasonably dangerous condition; and, (2) actual or constructive notice of said unreasonably dangerous condition. We agree.

The photographs in the record, notably introduced by both Plaintiffs and Golden Corral, support Mr. Brinson’s expert opinion that there was no defect in the sidewalk and that it was not unreasonably dangerous. Plaintiffs failed to produce any expert establishing any defect in the sidewalk, and there is no question of material fact in that regard. Based upon this showing, we find that Golden Corral, as the mover on summary judgment, met its burden of establishing the “absence of factual support” for an essential element of Plaintiffs’ claim, i.e., an unreasonable risk of harm. La.Civ.Code art. 966(C)(2). Plaintiffs have failed to produce the necessary evidence to support their allegations that the sidewalk was unreasonably dangerous or created an unreasonable risk of harm. Based on the record, the facts presented, and the applicable law, we find that the trial court was Illegally correct in granting summary judgment in favor of Golden Corral Corporation.

DECREE

For the foregoing reasons, the judgment of the trial court granting Golden Corral Corporation’s motion for summary judgment is affirmed. Costs are assessed to Plaintiffs/Appellants, Albert Broussard, Shaundra Hunt, Shauntrell Hunt, and Lakeithia Hunt.

AFFIRMED.

COOKS, J., dissents.

      . Leola Hunt died intestate on December 27, 2007, for reasons unrelated to this incident. Her husband, Albert Broussard, and three grandcMldren, Shaundra Hunt, Shauntrell Hunt, and Lakeithia Hunt, were added as party plaintiffs to the original cause of action on November 30, 2009.