text:
    STATE ex rel. Larry MITCHELL v. STATE of Louisiana.
    No. 2013-KH-0844.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Mitchell, Larry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 451323; to the Court of Appeal, First Circuit, No. 2013 KW 0158.

Denied.

HUGHES, J., would grant.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Gregory Lee HARTSHORN v. STATE of Louisiana.
    No. 2013-KH-0852.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Hartshorn, Gregory Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 07-2393; to the Court of Appeal, Fifth Circuit, No. 13-KH-87.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Antonio DENT v. STATE of Louisiana.
    No. 2013-KH-0853.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Dent, Antonio; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 509-796; to the Court of Appeal, Fourth Circuit, No. 2013-K-0387.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030.


text:
    STATE ex rel. Reinier NESLO v. STATE of Louisiana.
    No. 2013-KH-0856.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Neslo, Reinier; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 276-264.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Thurman Lee BOYD, Jr. v. STATE of Louisiana.
    No. 2013-KH-0857.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Boyd Jr., Thurman Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 277,976; to the Court of Appeal, Second Circuit, No. 48,-265-KH.

Denied.


text:
    STATE ex rel. Brandon De’Andre SHEPARD v. STATE of Louisiana.
    No. 2013-KH-0862.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Shepard, Brandon De’Andre;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. A, No. 179,419; to the Court of Appeal, Second Circuit, No. 48,286-KH.

Denied.


text:
    STATE ex rel. Rodney HAMILTON v. STATE of Louisiana.
    No. 2013-KH-0870.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Hamilton, Rodney; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 75-351.

Denied.


text:
    STATE ex rel. Calvin D. RICE, Sr. v. STATE of Louisiana.
    No. 2013-KH-0871.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Rice Sr., Calvin D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 347-684; to the Court of Appeal, Fourth Circuit, No. 2012-K-1700.

Denied. See State ex rel. Brown v. State, 03-2568 (La. 3/26/04), 870 So.2d 976; State ex rel. Degreat v. State, 98-0690 (La.7/2/98), 724 So.2d 205; State ex rel. Fleury v. State, 93-2898 (La.10/13/95), 661 So.2d 488.


text:
    STATE ex rel. John ROWELL v. STATE of Louisiana.
    No. 2013-KH-0872.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Rowell, John; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 97-566; to the Court of Appeal, Fifth Circuit, No. 13-KH-91.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2830 (La.9/5/95), 660 So.2d 1189.

JOHNSON, C.J., would grant.


text:
    SUCCESSION OF Thomas DEAN, Sr.
    No. 2013-C-0994.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Dean, Melba; — Other; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 04-17165; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0832.

Denied.

KNOLL and WEIMER, JJ„ would grant.


text:
    SUCCESSION OF Thomas DEAN, Sr.
    No. 2013-C-1089.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Dean Jr., Thomas; Dean, Angela; Dean, Cyril; — Other(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 04-17165; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0832.

Denied.

KNOLL and WEIMER, JJ„ would grant.


text:
    Carlo DESALVO v. Burl CAIN, Warden, Louisiana State Penitentiary.
    No. 2013-KP-1127.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Desalvo, Carlo; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 95-3869; to the Court of Appeal, Fifth Circuit, No. 12-WR-538.

Denied.


text:
    STATE of Louisiana v. Noel BROOKS.
    No. 2013-KP-1129.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Brooks, Noel; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 352-970; to the Court of Appeal, Fourth Circuit, No. 2013-K-0284.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    Faith Goldsmith SUMNER, Individually, and on Behalf of the Decedent, Timothy W. Sumner, Sr., and as Natural Tutrix of their Minor Children, Dianne Sumner, Timothy W. Sumner, Jr., Tremain Major Sumner, Timberly Goldsmith, Mr. Trinity Sumner, Seventh Luv Sumner, Zalyla Sumner and Baby Renee Sumner v. CANADIAN NATIONAL RAILWAY COMPANY, Illinois Central Railroad Company, Town of Walker, Louisiana, Livingston Economic Development Council, Inc., Livingston Parish Council and the State of Louisiana, Through the Department of Transportation and Development.
    No. 2013-CC-1313.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Town of Walker; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. A, No. 124,207; to the Court of Appeal, First Circuit, No. 2013 CW 0576.

Denied.


text:
    TREEN CONSTRUCTION COMPANY, INC. v. Pamela Keenan, Wife of/and Stephen SCHOTT.
    No. 2013-CC-1397.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Pamela Keenan, et al.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 702-421; to the Court of Appeal, Fifth Circuit, No. 13-C-304.

Denied.


text:
    August GUILLOT and Juli Guillot, Individually and as the Survivors of their Minor Child, Collin Jacob Guillot, and Natural Tutor or their Minor Child, Madison Guillot v. DAIMLERCHRYSLER CORPORATION, Lamarque Dodge, Inc., ABC Insurance Company, XYZ Insurance Company and John Doe.
    No. 2013-C-1401.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Barrios, Kingsdorf and Casteix, LLP; Guillot, August et al.; Guillot, Juli; Lieff Cabraser, Heimann and Bernstein, LLP; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. E, No. 94-840; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0888.

Denied.

VICTORY and WEIMER, JJ., would grant.


text:
    Anthony BUFFONE v. Mable MANGANO, Salvador Mangano, and Huffman, Inc.
    No. 2013-C-1414.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Buffone, Anthony; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. A, No. 116-310; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0819.

Denied.

VICTORY and HUGHES, JJ., would grant.


text:
    SIMMS HARDIN COMPANY, LLC, Sharp Electric, Inc., Gallo Mechanical, Inc., Commercial Paint Company, Inc., Crasto Glass and Mirror Company, Inc., and Year Round Heating and Air Conditioning, Inc. v. 3901 RIDGELAKE DRIVE, L.L.C., Construction South, Inc. and Fidelity and Deposit Company of Maryland, Dorothy Watkins, Wife of/and Edwin C. Dorvin, Dwayne R. McClure, Bryan P. Scofield, Patricia Barilleau, Wife of/and Donald C. Zerangue, Francis Lopinto, Wife of/and William J. Dwyer, Anna Canizzaro, Wife of/and Robert A. Steiner, Sr., America, Wife of/and German Gacharna, and Anthony P. Doughty.
    No. 2013-C-1423.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re 3901 Ridgelake Drive L.L.C., et al.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. B, No. 658-377; to the Court of Appeal, Fifth Circuit, Nos. 12-CA-469, 12-CA-607, 12-CA-548.

Denied.


text:
    GRANT RESOURCE ADVISORS LLC v. SADER POWER, LLC and Sader Power Enterprises, LLC.
    No. 2013-CC-1426.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Griswold Power L.L.C.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 12-819; to the Court of Appeal, Fourth Circuit, No. 2013-C-0339.

Denied.

HUGHES, J., would grant.


text:
    GRANT RESOURCE ADVISORS LLC v. SADER POWER, LLC and Sader Power Enterprises, LLC.
    No. 2013-CC-1427.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Sader Power Enterprises, LLC; Sader Power, LLC, et al.; Sader, John;— Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 12-819; to the Court of Appeal, Fourth Circuit, No. 2013-C-0340.

Denied.

HUGHES, J., would grant.


text:
    Kirk WATERS and Joshua Waters v. TREVIICOS CORPORATION and Zurich American Insurance Company.
    No. 2013-CC-1447.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Zurich American Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 2011-14728; to the Court of Appeal, First Circuit, No. 2013 CW 0481.

Denied.


text:
    Everlee JACKSON v. Billy R. HERRING and Edith Herring.
    No. 2013-C-1452.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Jackson, Everlee; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Desoto, 42nd Judicial District Court Div. B, No. 70,246; to the Court of Appeal, Second Circuit, No. 48,-019-CA.

Denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Lloyd CLARK.
    No. 2013-KK-1459.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. c, No. 494-034; to the Court of Appeal, Fourth Circuit, No. 2018-K-0571.

Denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    Joseph SANDER, Richard Peart, and Randall Peart Surviving Husband and Children of, Leslie Sander v. MIA’S PHARMACY, et al.
    No. 2013-CC-1460.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Louisiana Patient’s Compensation Fund; Louisiana Patient’s Compensation Fund Oversight Board; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 628-094; to the Court of Appeal, Fifth Circuit, No. 13-C-212.

Denied.


text:
    Kerwinn TEMPLE v. GLOBAL CONSTRUCTION.
    No. 2013-C-1461.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Global Construction; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 7, No. 11-5033; to the Court of Appeal, Fifth Circuit, No. 13-CA-38.

Denied.


text:
    BIOSONIX, LLC, et al v. Benjamin LUKE, et al.
    No. 2013-CC-1469.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Benjamin A. Luke, Attorney at Law, L.L.C.; Luke, Benjamin et al.; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. C, No. 244,629; to the Court of Appeal, Third Circuit, No. CW 13-00077.

Denied.


text:
    AGGRIEVED PRACTITIONER v. BREACHES OF OBLIGATIONS AGENCY and Pace.
    No. 2013-CC-1470.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Louisiana State Board of Medical Examiners; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 11-12827; to the Court of Appeal, Fourth Circuit, No. 2013-C-0152.

Denied.

HUGHES, J„ would grant.


text:
    Larry H. PHILLIPS, Betty Phillips, and Jamari A. Jackson, Sr. v. AIR LIQUIDE LARGE INDUSTRIES U.S. L.P. and the State of Louisiana through the Department of Transportation and Development.
    No. 2013-CC-1471.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Air Liquide Large Industries U.S. L.P., et al.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. D, No. 64,949; to the Court of Appeal, First Circuit, No. 2013 CW 0433.

Denied.

VICTORY and HUGHES, JJ., would grant.


text:
    Kasandra ALEXANDER, Individually and on Behalf of Milton Bernard v. ACADIAN AMBULANCE SERVICE, INC., et al.
    No. 2013-C-1478.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Acadian Ambulance Service, Inc.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. J, No. 2009-2250; to the Court of Appeal, Third Circuit, No. 12-1236.

Denied.


text:
    GENESIS LOGISTICS LLC and Sandra Frelich v. ACME TRUCK LINE, INC.
    No. 2013-CC-1481.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Acme Truck Line, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 701-155; to the Court of Appeal, Fifth Circuit, No. 13-C-274.

Denied.


text:
    STATE ex rel. Cornell CAVALIER v. STATE of Louisiana.
    No. 2013-KH-1862.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Cavalier, Cornell; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 508-269; to the Court of Appeal, Fourth Circuit, No. 2013-K-1004.

Denied.


text:
    STATE of Louisiana v. Steven CAMPBELL.
    No. 2013-KK-2051.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 511-538; to the Court of Appeal, Fourth Circuit, No. 2013-K-1136.

Denied.


text:
    Candace WALKER, et al. v. Tammy WESTBROOK et al.
    No. 2013-CC-2120.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Nurserymen’s Exchange, Inc.;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2009-01028, 2009-06941, 2006-05660, 2009-07238; to the Court of Appeal, Fourth Circuit, No. 2013-C-0737.

Denied.

CLARK, J., would grant.


author: HANS J. LILJEBERG, Judge. HANS J. LILJEBERG, Judge.

text:
    John COOK, et al. v. ASBESTOS CORPORATION LTD., et al.
    No. 13-CA-9.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.
    Opinion on Rehearing Aug. 27, 2013.
    David R. Cannella, Mickey P. Landry, Frank J. Swarr, Philip C. Hoffman, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Gary A. Lee, Richard M. Perles, Gordon P. Wilson, John M. Futrell, Samuel M. Rosamond, III, Adam D. Demahy, Kristopher T. Wilson, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

UOn November 8, 2011, plaintiffs, surviving spouse and children of Catherine Cook, filed a survival and wrongful death action, seeking damages against multiple defendants, including the insurers of Hunt Tool Company, American Employers Insurance Company, now part of One Beacon America Insurance Company, United States Fidelity and Guaranty Company, The Standard Fire Insurance Company and Travelers Casualty and Surety Company. The plaintiffs alleged that as result of a collective exposure to asbestos, Catherine Cook contracted mesothelioma, which ultimately caused her death. As pertaining to Hunt Tool Company, plaintiffs alleged that Catherine Cook’s father, Leonce Waguespack, Sr., while employed by Hunt Tool Company as a welder, regularly brought home asbestos on his clothing, unknowingly exposing his family. Defendants, herein named, subsequently filed a motion for summary judgment, seeking dismissal of plaintiffs’ claims against them on the grounds that plaintiffs presented no competent evidence that Hunt Tool Company provided Mr. Waguespack with an asbestos vest and gloves to perform his employment tasks. Therefore, defendants 14argued that plaintiffs could not prove that Catherine Cook contracted mesotheli-oma as a result of a contributing exposure to asbestos from Hunt Tool Company. On October 2, 2012, the trial court granted the motion for summary judgment in favor of defendants. From this judgment, plaintiffs appeal.

LAW & DISCUSSION

Jurisprudence is well-settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751; Nuccio v. Robert, 99-1327 (La.App. 5 Cir. 4/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544.

Effective August 15, 2012, La. C.C.P. art. 966, as amended by Acts 2012, No. 257, § 1, and Acts 2012, No. 741, § 1, provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). Further, the amended Article adds a second sub-section to Section E, requiring that “[o]nly evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion.” La. C.C.P. art. 966(E)(2).

Therefore, as amended, La. C.C.P. art. 966 requires only evidence formally introduced and admitted into evidence at the hearing on summary judgment to be considered by the trial court. Evidence, although attached to the motion or filed into the record, shall not be considered by the trial court unless properly admitted at the hearing under the rules of evidence.

|sAt the hearing on summary judgment, defendants/ movants averred that plaintiffs could not carry their burden of proof at trial, namely that Ms. Cook was exposed to asbestos from Hunt Tool Company. Specifically, defendants pointed to an absence of factual support that Hunt Tool Company provided Ms. Cook’s father with an asbestos vest and gloves.

Generally, in a motion for summary judgment, the movant retains the burden of proof. La. C.C.P. art. 966(C)(2). KMJ Services, Inc. v. Hood, 12-757 (La.App. 5 Cir. 4/10/13), 115 So.3d 34; Robinson v. Jefferson Parish Sch. Bd., 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043; Champagne v. Ward, 03-3211 p. 5 (La.1/19/05), 893 So.2d 773, 776-77. However, if the movant sustains this initial burden by showing an absence of factual support for at least one essential element of the adverse party’s claim, action, or defense, then the burden shifts to the adverse party to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Id. Thereafter, if the adverse party fails to produce factual support to show that he will be able to meet his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Id.

Here, plaintiffs attached deposition testimony of Ms. Cook and her two brothers, Leonee, Jr. and Patrick Wagues-paek, as well as expert deposition testimony and photographs in support of their claim that Hunt Tool Company exposed Ms. Cook to asbestos via her father’s clothing. Notwithstanding, on appeal, our de novo review of the motion for summary judgment cannot include consideration of the deposition testimony or photographs attached to the motion for summary judgment or its opposition, but not admitted into evidence. Therefore, without any evidence to support the plaintiffs’ claim that Hunt Tool Company provided Ms. Cook’s father with an asbestos vest and gloves, we cannot find that | nthere is a genuine issue of material fact as to Hunt Tool Company’s contribution of asbestos exposure to Catherine Cook. Accordingly, we affirm the summary judgment in favor of defendants.

DECREE

Considering the foregoing, summary judgment granted in favor of defendants, One Beacon America, United States Fidelity and Guaranty Company, The Standard Fire Insurance Company and Travelers Casualty and Surety Company, is affirmed.

AFFIRMED

ON REHEARING

Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and HANS J. LILJEBERG.

HANS J. LILJEBERG, Judge.

IsThis case is before the Court on the plaintiffs/appellants’ application for rehearing. In our original opinion dated May 23, 2013, we affirmed the trial court’s grant of summary judgment in favor of defendant, Hunt Tool Company, and its insurers. Specifically, we affirmed on procedural grounds, finding that the plaintiffs’ evidence was not admitted at the hearing on summary judgment as was required by La. C.C.P. art. 966(E). Plaintiffs’ application for rehearing asks this Court to reconsider its judgment on procedural grounds and points out to the Court that plaintiffs did attempt to offer, file, and introduce their evidence at the close of the hearing. After a re-examination of the transcript, it does appear that the plaintiffs did offer, file, and introduce their exhibits; however, the trial judge became distracted and did not formally grant the admission of the evidence. We note that the record does not list the exhibits as admitted.

|4Notwithstanding, upon reconsideration, we find that plaintiffs properly moved to admit the exhibits attached to their motion for summary judgment. Defendants did not contemporaneously object to the admission. Moreover, it is clear from the trial court’s oral reasons for judgment that it considered all admissible evidence presented by both the plaintiffs and the defendants. Consequently, based on the entirety of the circumstances, we find plaintiffs’ exhibits admitted.

When considering the plaintiffs’ evidence on rehearing, however, we do not find upon de novo review that the plaintiffs produced factual support adequate to establish that they will be able to satisfy the evidentiary burden at trial as required by La. C.C.P. art. 966(C). We find, as did the trial court, that plaintiffs failed to produce factual support that Hunt Tool Company provided Ms. Cook’s father with asbestos gloves, or that if supplied by Hunt Tool Company, that the gloves were in fact asbestos. Therefore, without sufficient evidence to support the plaintiffs’ claim that Hunt Tool Company provided Ms. Cook’s father with an asbestos vest and gloves, we cannot find that there is a genuine issue of material fact as to Hunt Tool Company’s contribution of asbestos exposure to Catherine Cook. Accordingly, upon de novo review of the merits of the motion for summary judgment, we affirm summary judgment in favor of defendants.

DECREE

Considering the foregoing, summary judgment granted in favor of defendants, One Beacon America, United States Fidelity and Guaranty Company, The Standard Fire Insurance Company and Travelers Casualty and Surety Company, is affirmed.

REHEARING GRANTED FOR CLARIFICATION; JUDGMENT AFFIRMED

      . In addition to exposure from Hunt Tool Company, appellants allege in brief that Catherine Cook contracted mesothelioma from a combination of contributing household and neighborhood exposure to asbestos, including household exposure from Ms. Cook's first husband's work at Celotex and Ms. Cook's residing and growing up on the Westbank of Jefferson Parish related to Johns-Manville operations, emissions and scrap metal.

      . Acts 2012, No. 257, § 1 removed the words “on file” from Section B, subsection 2 of Article 966.


author: MOORE, J.

text:
    QUESTAR EXPLORATION AND PRODUCTION COMPANY, Plaintiff-Appellee v. WOODARD VILLA, INC. and Ernest Scott Woodard, Defendant-Appellants.
    No. 48,401-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.
    Rehearing Denied Sept. 19, 2013.

      Bethard & Bethard, LLP, Coushatta, by Benjamin T. Bethard, James G. Bethard, for Appellants.
    Blanchard, Walker, O’Quin & Roberts, Shreveport, by Paul M. Adkins, Michael E. Riddick, for Appellee.
    Before WILLIAMS, MOORE and PITMAN, JJ.
   MOORE, J.

|TThe lessors, Woodard Villa Inc. and its principal, Ernest Scott Woodard (collectively, “Woodard”), appeal a summary judgment declaring that the entirety of their mineral lease was maintained, at Haynesville Shale depth, by a well drilled by the working interest owner, Questar Exploration & Production (“QEP”), when the well was drilled off the lease premises and on land not unitized with the lease premises, but the well’s horizontal shaft entered the Haynesville Shale formation under the lease premises. For the reasons expressed, we affirm.

Factual and Procedural Background

On August 5, 2004, Woodard granted a mineral lease to Cowgill & Associates affecting a tract of 1,480.3 acres in Sections 22, 23, 26, 27 and 35, T 15 N, R 9 W, in Bienville Parish. The lease had a primary term of three years, but in July 2007 Woodard and Cowgill executed an extension of one year, meaning the primary term would end August 5, 2008. The body of the lease contains a lease agreement from which the adjacent lands clause has been scratched out (¶ l), and the appendix of the lease includes a Pugh clause (¶ 11), a depth limitation after primary term clause (also called a | ¡/‘horizontal Pugh clause,” ¶ 6) and a declared units clause (¶ 19). At some point, QEP acquired all of Cowgill’s rights as a working interest owner. Prior to August 5, 2008, QEP or its predecessors drilled and completed at least one well into the Cotton Valley formation on each of the five units encompassing the entirety of the lease premises. However, there were no wells into the Haynesville Shale formation.

In May 2009, QEP began drilling the Jimmy Woodard 34 H No. 1 well (“JW # 1”) on a surface location in Section 34, not part of the lease premises and not in a unit containing any of the lease premises. However, by virtue of horizontal drilling, this well turned north and reached into the Haynesville Shale unit lying under lease premises in Section 27. The parties agreed that JW # 1 entered this Haynes-ville Shale unit on July 16, 2009, about three weeks before the horizontal Pugh clause would take effect. JW # 1 was completed on November 23, 2009, after the horizontal Pugh clause took effect, and reached a maximum depth of 12,456 feet in the Section 27 Haynesville Shale unit.

Meanwhile, in August and September 2009, Woodard’s counsel [..¡notified QEP that in Woodard’s view, the lease had expired as of August 5, 2009, as to all depths below the Cotton Valley formation, notwithstanding JW #1; it offered to discuss leasing its Haynesville Shale rights to QEP. In October, Woodard demanded a partial release of the lease in exchange for dropping any claims for damages. In December 2009, QEP responded by tendering to Woodard a partial release as to depths below the Haynesville Shale formation, 12,556 feet. Woodard declined to sign this, as it would have blocked Woodard from leasing its nearly 1,500 acres in the Haynesville Shale.

QEP filed this suit in February 2010 seeking a declaratory judgment that the lease was maintained to a depth of 12,556 feet, by virtue of JW # 1, over the whole lease premises.

Woodard answered that prior to August 5. 2008, the deepest well affecting the lease was in the Cotton Valley formation; at the end of the primary term, the lease was divided into five individual units, pursuant to the Pugh clause; during the additional year before the horizontal Pugh clause took effect, QEP drilled no wells that would maintain the lease below the Cotton Valley formation. Woodard also reconvened for damages, bonus money and higher royalties it would have received from leasing its Haynesville Shale rights.

The parties ultimately stipulated to all the facts outlined above. QEP filed the instant motion for summary judgment, seeking a declaration that the entire lease had been maintained to a depth of 12,556 feet (Haynesville Shale formation). Woodard filed a motion for partial summary judgment, ^seeking a declaration that JW # 1 did not serve to maintain the lease to any depth below Cotton Valley, or if it did, only to that portion of the lease lying in the Haynesville Shale Section 27 unit. The parties briefed their positions extensively but agreed that the legal issue was novel: can a well drilled off-lease, but reaching horizontally into a formation under the lease, maintain operations as to all, or at least part, of the lease?

At a hearing in October 2012, the parties argued their positions and submitted the stipulations previously entered. Ruling from the bench, the court initially stated that JW # 1 “was drilled apparently in Section 27, then that should be the only area that the depth limitation should apply[,]” but then concluded, “I don’t think I have a choice but to interpret it that the depth limitation applies to all of it, the leased premises if that’s what the lease says.” The court therefore granted QEP’s motion and denied Woodard’s.

Woodard has appealed, designating four assignments of error and advancing them as three issues.

Discussion: Effect of Pugh Clause

By its second assignment of error, Woodard urges that the court erred in finding that the Pugh clause did not act to separate the maintenance requirements of the lease, so that each of the separate units created by the Office of Conservation that contains lease property is maintained separately. Woodard quotes the Pugh clause, specifically, “as to that portion of the leased premises embraced in such unit[,]” and argues that once this is | (¡triggered, a well producing from one unit “will only apply to satisfy the maintenance requirement of that unit.” In support, Woodard cites various Louisiana cases, federal cases, out-of-state cases and reference books, as refuting QEP’s claim that “as long as a well is producing from one unit, that one well will serve to maintain all 1,480.3 acres of leased property located in any and all units, regardless of whether the activities within each separate unit may support its own maintenance.” Woodard argues that by QEP’s reasoning, a lessee need only get the entire lease premises unitized into different units, drill a well in one unit, and thereby maintain the whole lease; this would negate the purpose of the Pugh clause and create a loophole that any lessee may use to maintain acreage outside a given unit. Woodard provides several color diagrams to illustrate various situations, and argues that the declared units clause (¶ 19) forced QEP to unitize the entire lease. Woodard concludes that the Pugh clause was intended to require action by the lessee in order to maintain the lease.

QEP responds that a mineral lease is presumptively indivisible and lfithat even though a Pugh clause may provide for the subdivision of a lease, as occurred in Rose-berry and Peironnet, the instant Pugh clause makes no such provision. In fact, the reference to maintenance of “this lease as to that portion of the leased premises embraced in such unit or units” shows an intent not to subdivide the lease. QEP also submits that all of the lease premises are located within producing units, and hence the entire lease has been maintained.

Louisiana’s Mineral Code provides that operations on any portion of the lease “or on land unitized therewith” will maintain the lease “as to the entirety of the land burdened” by the lease. La. R.S. 31:114. This broad principle can be altered contractually by the inclusion in the lease of a Pugh clause. The main purpose of the Pugh clause is to protect the lessor “from the anomaly of having the entire property held under lease by production from a very small portion.” Will-Drill Resources v. Huggs Inc., supra. However, not all Pugh clauses are identical. Id.

Woodard correctly shows that in Peiron-net, supra, the Pugh clause expressly stated that each unit “shall be treated as constituting a separate lease,” and that in Roseberry, supra, certain language was “clearly intended to negate the general rule” of R.S. 31:114. On close examination, however, we find no such similar intent in the instant Pugh clause. Woodard has not cited any provision of the lease, and our own reading of it has uncovered none, referring to separate leases or a division of the lease. The Pugh clause states that operations from any well situated on lands included within a unit |7or units embracing a portion of the lease premises will maintain the lease only “as to that portion of the leased premises embraced in such unit or units,” but further states:

This lease may be maintained as to acreage not included in such unit or units in any other manner provided for herein, including continuous development as provided for in paragraph 6 of the body of the lease form.

The absence of any mention of separate leases or division of the lease, and the Pugh clause’s specific reference to this lease, show that the parties did not intend for the clause to separate or divide the lease. When the words of a mineral lease are clear and explicit and do not lead to absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046; Caskey v. Kelly Oil Co., 98-1193 (La.6/29/99), 737 So.2d 1257. Moreover, the parties stipulated that QEP or its predecessors drilled wells within all five units constituting the entire lease between the date of the lease and the end of the primary term. On this record, there is no absurd consequence of maintaining the entire 1,480 acres by the operation of a well on the Section 27 unit; operations on all five units clearly maintained the entire lease beyond the primary term. This assignment of error lacks merit.

Effect of JW #1

By its third assignment of error, Woodard urges the district court erred in finding that JW # 1 served to maintain the lease property as to those depths below the base of the Cotton Valley formation. Woodard shows that [ sthe parties scratched out the adjacent lands provision of ¶ 1, and quotes a portion of the horizontal Pugh clause, ¶ 6: “the deepest well shall be drilled on the leased premises or on a unit(s) embracing some part of the leased premises[.] ⅜ * * [A] productive formation is discovered and the same is producing when the depth limitation takes effect.” The combined effect of these two provisions is that in order to maintain the lease beyond the primary term, the well must be drilled on the lease or in a unit containing leased land. Courts strictly construe Pugh clauses. Since JW # 1 was not drilled on the lease premises, and not drilled on, completed or producing from land within a unit embracing some part of the lease premises by August 5, 2009, Woodard concludes that the horizontal Pugh clause ceased to affect depths below the Cotton Valley formation.

QEP responds that the adjacent lands clause permits the lessee to use the lease premises to conduct operations on adjacent lands not owned by the lessor, Caskey v. Kelly Oil Co., supra, and the deletion of this clause has no bearing on the case since QEP was never trying to use the lease premises to develop lands off the lease. Further, the horizontal Pugh clause holds the entire lease through the base of the Haynesville Shale formation. The primary term ended August 5, 2008, at which time the whole lease premises was subject to the lease; in February 2009, Conservation established a Haynesville Shale unit encompassing the entirety of Section 27; QEP drilled JW # 1 as the unit well for this unit; JW # 1 was spudded on May 23, 2009, and entered the unit formation on the lease premises on July 16, well before 19the August 5, 2009, trigger date for the horizontal Pugh clause. Finally, the horizontal Pugh clause does not require actual production to maintain depths, and is in this respect different from the standard Pugh clause.

Woodard correctly shows that the parties scratched out a portion of the lease agreement, with the effect of denying the lessee the right to enter and use the lease premises “for operations hereunder or in connection with similar operations on adjoining lands.” Had this portion been left in place, it would have granted QEP the right to use the lease premises to access and develop adjacent lands not owned by Woodard; without it, QEP has no such right. Obviously there is no issue in this case of QEP seeking to use the lease premises to access and develop adjacent property not owned by Woodard, and from which Woodard would draw no benefits. The deletion of the adjacent lands clause is, as QEP suggests, irrelevant to the resolution of this issue.

Critically, the horizontal Pugh clause maintains the lease over the lease premises, from the surface to 100 feet below the deepest well, subject to two provisions: (1) “the deepest well * * * shall be drilled on the leased premises or on a unit(s) embracing some part of the leased premises” (2) “during the primary term, plus one (1) year.” Owing to the extension executed in July 2007, the primary term ended August 5, 2008; the additional year granted by the second provision ended August 5, 2009. The parties stipulated that in February 2009, Conservation designated a unit for Section 27, and this unit encompasses part of the lease premises; QEP | ,flspudded JW # 1 on a location in Section 34, not part of the lease premises and not on a unit including any of the lease premises, on May 23, 2009; with horizontal drilling, the well turned north and went under the Section 27 unit on July 16, 2009; JW # 1 was completed to a depth of 12,456 feet under Section 27 on November 23, 2009. These facts persuade us that QEP satisfied the horizontal Pugh clause, to 100 feet below JW # l’s deepest depth, by drilling and entering the Section 27 unit on July 16, 2009, 20 days before the time limit, even though the spud location was off-lease and off-unit. We perceive no error in the district court’s ruling.

Presented with a different issue, the supreme court recently reiterated that wells drilled on adjacent tracts that were force-pooled with the lease premises nevertheless served to maintain the lease. Peironnet v. Matador Resources, supra at 40-41, — So.3d at -. The court reasoned that lessors generally benefit from the development of a unit in which their property is located, even if the drilling occurred offsite. This rationale appears equally applicable in the instant situation; with the advent of horizontal drilling, operators may access leased property or units remotely. Conceivably, this could be a courtesy to the lessor, who does not want wells and noisy drilling operations on his property. When the lessee complies with the provisions of the horizontal Pugh clause, as occurred here, those operations should be held to satisfy the maintenance requirement. This assignment of error lacks merit.

| nAlternatively, Partial Maintenance

By its fourth assignment of error, Woodard urges the court erred in denying its alternative claim that, with the exception of the portion of the lease premises located within Section 27, QEP’s activities did not serve to maintain the lease as to all depths below the base of the Cotton Valley formation. Woodard argues that QEP had an opportunity to drill deeper wells into each unit for an entire year after the horizontal Pugh clause was triggered, but in four other section units, it drilled only into Cotton Valley; however, three months after the clause was triggered, QEP drilled a horizontal well from another landowner’s property which is not pooled in any unit with the lease tract but is completely within the Section 27 Haynesville Shale unit. Woodard contends that the lease provisions and these actions served to segregate the lease. Woodard concludes that if the activities with JW # 1 had any effect on this lease, it was only with respect to the Section 27 Haynesville Shale unit, not the other four units.

QEP reiterates that the mineral lease is presumptively indivisible; the use of the language “to maintain this lease in force beyond the primary term as to that portion of the leased premises embraced in such unit or units” serves only to segregate the lease for maintenance purposes, not to divide the lease. In light of the admitted operations on units encompassing the entirety of the lease premises, QEP submits that the lease is in force over the whole lease premises and down through the Haynesville Shale formation.

|1p.We are unpersuaded by Woodard’s argument that this Pugh clause divided the lease. As noted above, the lease is fundamentally indivisible, La. R.S. 31:114, and a division of the lease will be recognized when the lease agreement clearly provides for it, as in Roseberry, supra. Without such special provision, the Pugh clause segregates the lease into separate portions for maintenance purposes only, with the objective of protecting the lessor from having the entire property held under lease by production from only a very small portion. Will-Drill Resources v. Huggs, supra at 6-7, 738 So.2d at 1200. The statement over 50 years ago in Broussard v. Phillips Petroleum Co., supra, that the “effect of the [Pugh] clause is to divide or segregate the lease” must be deemed superseded by the more comprehensive rulings of the Fifth Circuit in Rougon v. Chevron USA, supra, by this court in Will-Drill Resources v. Huggs, supra, and by the Western District itself in Alyce Gaines Johnson Special Trust v. El Paso E & P Co., 773 F.Supp.2d 640 (W.D.La.2011).

In this case, QEP or its predecessors performed operations on all five units encompassing the lease premises; there is no issue of a “recalcitrant” lessee ignoring large portions of the lease. Moreover, the horizontal Pugh clause does not operate on a unit-by-unit basis. On de novo review, we find no genuine issues of material fact, a correct interpretation of the mineral lease, and that QEP is entitled to summary judgment as a matter of law. This assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by Woodard Villa Inc. and Ernest Scott Woodard.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, MOORE, LOLLEY and PITMAN, JJ.

Rehearing denied.

      . Each of the five sections was ultimately designated by the Department of Conservation as an individual unit for the Hosston (shallow) and Cotton Valley (medium) formations and, later, for the Haynesville Shale (deep) formation.

      . ¶ 1 grants lessee the "exclusive right to enter upon and use the land hereinafter described for the exploration for and production of oil, gas, sulphur and all other minerals, together with the use of the surface of the land for all purposes incident to the exploration * * *, with the right of ingress and egress to and from said lands at all times for such purposes, including for-operations-hereunder or in connection with -similar-operations on adjoining lands[.]"

      . ¶ 11: "Notwithstanding anything to the contrary contained herein, the commencement of operations for drilling * * * from any well situated on lands included within a unit or units embracing a portion of the leased premises and other lands not covered hereby shall only serve to maintain the lease in force beyond the primary [term] as to that portion of the leased premises embraced in such unit or units. This lease may be maintained as to acreage not included in such unit or units in any other manner provided for herein, including continuous development as provided for in paragraph 6 of the body of the lease form.”

      . ¶ 6: "This lease shall cover and affect the land described herein from the surface of the earth down to one hundred feet (100’) below the stratigraphic equivalent of the deepest depth to which the deepest well shall be drilled on the leased premises or on a unit(s) embracing some part of the leased premises during the primary term, plus one (1) year. Provided, however, that if a productive formation is discovered and the same is producing when the depth limitation takes effect, this lease shall extend to the base of such formation so as to include all of such formation under the lease plus one hundred feet, though no well shall have been drilled to the depth of said base or lower limit of such formation."

      .¶ 19: "Notwithstanding anything contained to the contrary herein, in the absence of production units formed by the State of Louisiana Office of Conservation, or other regulatory body. Lessee, its successors or assigns, must declare a production unit for any well producing on the leased premises. Such United Declaration must be made in writing, recorded in the public records, will unitize contiguous acreage, and may include not more than 640 acres, more or less, for a gas well, nor more than 80 acres, more or less, for an oil well.”

      . The first assignment of error urges merely that the court erred in granting QEP's motion for summary judgment. The remaining assignments advance the substantive claims.

      . Will-Drill Resources Inc. v. Huggs Inc., 32,179 (La.App. 2 Cir. 8/18/99), 738 So.2d 1196, writ denied, 99-2957 (La.12/17/99), 751 So.2d 885 (a case which actually found no activation of the Pugh clause because the whole lease premises was unitized); Roseberry v. Louisiana Land & Exploration Co., 470 So.2d 178 (La.App. 2 Cir.1985). In district court, Woodard also relied heavily on Peironnet v. Matador Resources Co., 47,190 (La.App. 2 Cir. 8/1/12), 103 So.3d 445, but the supreme court subsequently reversed that decision, 2012-2292 (La.6/28/13), - So.3d -, 2013 WL 3752474.

      . Rougon v. Chevron USA Inc., 575 F.Supp. 95 (M.D.La.1983); Morrison v. Conoco Inc., 575 F.Supp. 876 (M.D.La.1983).

      . Morgan v. Mobil Oil Corp., 556 F.Supp. 108 (D.Kan.1983); Thoroughbred Assocs. LLC v. Kansas City Royalty Co., 45 Kan.App.2d 312, 248 P.3d 758 (2011), review granted (12/19/11).

      . Luther L. McDougal III, La. Oil & Gas Law, Issue 5 (1992), Chap. 3.6; 4 Summers Oil & Gas (3 ed.) § 54.9; 4 Kuntz, The Law of Oil & Gas § 48.4.

      . La. R.S. 31:114 ("operations on the land burdened by the lease or land unitized therewith sufficient to maintain the lease according to its terms will continue it in force as to the entirety of the land burdened”); Hunter v. Shell Oil Co., 211 La. 893, 31 So.2d 10 (1947); Patrick Martin, Law of Pooling & Unitization, 3 ed. § 9.01, p. 9-4.

      . Stipulation 10 describes each of the five units, identifies the well for each unit and states the depth it reached.

      . Odom v. Union Producing Co., 243 La. 48, 141 So.2d 649 (1961); Will-Drill Resources v. Huggs, supra.

      . Caskey v. Kelly Oil Co., supra.

      . Broussard v. Phillips Petroleum Co., 160 F.Supp. 905 (W.D.La.1958), aff’d, 265 F.2d 221 (5 Cir.1959).

      . Rougon v. Chevron USA, supra; Roseberry v. Louisiana Land & Exploration Co., supra; Patrick Martin, op. cit., § 9.06, p. 9-21.


author:
PETTIGREW, J.
      McDONALD, J.,

text:
    Patricia M. CURRIE v. SCOTTSDALE INDEMNITY COMPANY and Fairway Villas No. 1 Homeowners Association, Inc.
    No. 2012 CA 1666.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 26, 2013.
    Jeff W. Watson, Baton Rouge, LA, for Plaintiff-Appellant, Patricia Currie.

      Maria B. De Gracia, Tara L. Mason, Metairie, LA, for Defendants-Appellees, Scottsdale Insurance Company and Fairway Villas No. 1 Homeowners Association, Inc.
    Before: KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

|2In this action seeking damages for injuries sustained as the result of an alleged unreasonable risk of harm created by a large water-filled hole in a sidewalk, the trial court granted the defendants’ motion for summary judgment, and denied the plaintiff’s cross motion for summary judgment, finding no genuine issues of material fact remained and that the plaintiff was unable to overcome the evidence establishing that the allegedly defective condition and circumstances that led to plaintiffs injuries were “open and obvious” such that the injury could have been avoided by a person exercising reasonable care and prudence; thus, precluding liability. The final judgment reflecting these findings was signed on December 4, 2012. This appeal by the plaintiff followed.

On April 4, 2013, during the pendency of the appeal, the Supreme Court rendered the decision of Broussard v. State, Office of State Buildings, 2012-1238 (La.4/5/13), 113 So.3d 175, which after careful review, we conclude clarified the existing and controlling law applicable to the burden of proof in a cause of action under very similar facts and circumstances. The opinion now very clearly mandates that whether an open and obvious condition is an unreasonable risk of harm, such that liability may be imposed, is not a determination of whether a duty exists (a question of law), but rather, it is a determination of whether that duty was breached, a question of fact. Given that clarification of the law, summary judgment is not proper when a genuine issue of material fact exists as to whether a duty was breached, in cases where the alleged liability arises from an open and obvious condition. Accordingly, applying the now existing interpretation and analysis mandated by the supreme court’s decision, the trial court’s judgment, granting summary judgment, must be reversed.

FACTS AND PROCEDURAL BACKGROUND

At the time of the relevant facts giving rise to this litigation, the plaintiff, sixty-nine year old Patricia M. Currie, resided in a condominium at 630-6 N. Beau Chene Drive, in Mandeville, Louisiana. The condominium was owned by Fairway Villas No. 1 Homeowners Association and insured by Scottsdale Insurance Company (defendants). Since 2002, by her own admission, Ms. Currie was aware that the sidewalk | sin front of her condominium had an uneven depression that caused water to accumulate whenever it rains.

After complaints about the condition of the sidewalk were made in 2002 to the defendants by Ms. Currie, among others, repairs were made that were originally to include the 16-foot portion of the paved walkway, including the section in front of Ms. Currie’s unit. However, in October 2004, Ms. Currie sent written notice to the manager of the condominiums, notifying him that notwithstanding the repairs, an 8-foot portion containing an uneven depression still remained, consisting of a dip the width of at least one yard in diameter directly in front of her unit and leading to her parking place, which had not been repaired properly, and continued to collect water following rain. Ms. Currie noted that the condition of the sidewalk after a rain made safe passage difficult for her to navigate from the only walkway available to get to her parking place. (The evidence established that Ms. Currie’s unit also had a back door; however, she contended that after a rain, that alternative route was equally impassable, as it required her to walk through the “muddy slop” in her yard, which also accumulated water during rain, and still ultimately required her to encounter the risk of slipping and falling.)

On December 30, 2009, the date of the incident giving rise to this litigation, it rained “profusely” all day, resulting in a large accumulation of water, approximately several inches deep in the yard-long sidewalk depression in front of Ms. Currie’s unit. According to Ms. Currie, it was evening, she was wearing a floor-length dress and heeled shoes, as she was going to a New Year’s party. Notwithstanding her knowledge of the condition of the sidewalk and the potential depth of the accumulated water, Ms. Currie acknowledged that she considered the alternate route of using her back door and navigating the muddy and wet yard untenable, as she was dressed up and did not want to soil her dress and shoes in the mud. By her own acknowledgment, Ms. Currie was walking quickly because it was raining, and she made the choice to attempt to “jump” the yard-long puddle to traverse the sidewalk. Unfortunately, Ms. Currie’s attempt to traverse the sidewalk in this manner failed, she slipped and fell in the puddle, and sustained injuries, the recovery for which she instituted this action.

bin a petition for damages filed November 16, 2010, Ms. Currie alleged she had no alternative walkway or path to her vehicle in the parking lot other than traversing the 8-foot portion of the sidewalk that she knew had accumulated several inches of water. She contended that she fell and injured herself attempting to traverse the puddle and further alleged these injuries were caused by the fault of the defendants by failing to maintain the premises in a safe condition, by failing to make repairs after several notices, by failing to inspect the area and remove any hazards, and by failing to provide her with a safe living environment and walkway.

Defendants answered the petition, denying any and all responsibility for the plaintiffs injuries, and affirmatively pleading victim fault, comparative fault, contributory negligence, and the fault of the plaintiff to mitigate damages, among other defenses. They alleged the plaintiff failed to use the requisite amount of care, that she failed to see what she should have seen under the circumstances, that she failed to observe an open and obvious condition, and that she committed other acts of personal negligence or fault in her choice to attempt to jump over what she knew to be a dangerous condition.

Motions for summary judgment were filed by both the defendants and the plaintiff. Both motions were heard on May 17, 2012, during which the evidence submitted consisted of the deposition of the plaintiff, copies of correspondence between Ms. Currie and the defendant association wherein she complained of the condition of the sidewalk, as well as responses to discovery requests. The only facts revealed by this evidence that differed from what had been represented in the parties’ pleadings were: (1) that after falling, Ms. Cur-rie was able to successfully walk back through the same puddle she had failed to successfully “jump” to get back to her condominium; and (2) that Ms. Currie did have a back door to her condominium leading to an alternate route to get to her vehicle in the parking lot, albeit, it too, required her to walk through muddy water.

ACTION BY THE TRIAL COURT

As noted earlier, the trial court granted the defendants’ summary judgment, and denied the plaintiffs cross motion. In so doing, the trial court noted that the condition of the sidewalk had existed for many years, and also that Ms. Currie acknowledged (and the 1 ^evidence supported) that she was very aware of the condition of the sidewalk, as well as the danger it posed by the accumulation of water after a rain. Based thereon, the trial court concluded it was “an open and obvious condition that the defendant in this case had no duty to warn of what was an apparent risk of trying to get over the condition.”

APPLICABLE LAW AND ANALYSIS

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. Lewis v. Morgan, 2011-2182, p. 3 (La.App. 1 Cir. 6/8/12), 93 So.3d 741, 743. 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. C.C.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 non-domestic civil actions. La. C.C.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). 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 whether the mover is entitled to judgment as a matter of law. Lewis, 2011-2182 at 4, 93 So.3d at 744.

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. C.C.P. 966(C)(2); In re Succession of Holbrook, 2012-1655 (La.App. 1 Cir. 4/26/13), 115 So.3d 1184; 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.

Open and Obvious Condition — Unreasonably Dangerous — Question of Law or Fact?

The trial court held that the depression in the sidewalk where water accumulated was an open and obvious condition, and granted summary judgment in favor of the defendants, apparently following a line of jurisprudence which precludes liability based on a finding that a landowner owes no duty when an allegedly defective condition exists. The plaintiff argues that the trial court erred in concluding that the sidewalk in this case was an open and obvious condition. For the following reasons, we disagree with both.

The evidence in this case, notably the plaintiffs own testimony abundantly established that Ms. Currie was not only aware of the depression in the sidewalk, she was also aware that it was several inches deep and at least one yard across, and that it accumulated with water when it rained. Moreover, the fact that it created a clearly visible puddle in contrast with the rest of the walkway rendered it open and obvious even without Ms. Currie’s specific knowledge. Therefore, we do not disagree with the trial court that the sidewalk’s defective condition was open and obvious.

However, we nonetheless find that the trial court erred in rendering summary judgment based on that finding, given that the law now clearly mandates that the analysis of whether an open and obvious defect is an unreasonable risk of harm is properly a determination of fact, that takes into consideration the victim’s own comparative fault, among other factors; and, accordingly, is not proper for summary judgment.

In Broussard v. State ex rel. Office of State Buildings, 2012-1238 (La.4/5/13), 113 So.3d 175, a UPS delivery driver sustained injuries when he admittedly and 17voluntarily chose to attempt to traverse a building’s visibly misaligned elevators, while maneuvering a loaded dolly (weighing approximately three hundred pounds), by attempting to pull the dolly over a one-half to three-inch elevation caused by the elevator’s misalignment. His attempt was unsuccessful, “the inertia created by the pull caused him to lose control of the load and forcefully pushed him into the back wall of the elevator” causing him to sustain a serious back injury. The victim sued, and after a jury trial, the jury awarded him approximately one and one-half million dollars, subject to reduction by the 38 percent fault the jury assigned to the victim. Broussard, 2012-1238, at p. 2, 113 So.3d at 179.

This court, on appeal, reversed, finding the jury’s conclusion that the elevator offset created an unreasonable risk of harm because the defect was open and obvious and thus did not present a serious risk of harm, was erroneous. This court noted that the victim could have avoided his injuries by acting more reasonably under the circumstances. Broussard v. State ex rel. Office of State Buildings, 2011-0479 (La.App. 1 Or. 3/30/12), 2012 WL 1079182 (unpublished op.) That opinion based primarily on a line of jurisprudence (emerging from the circuit courts as well as the supreme court) focused on the degree to which a dangerous condition should be observed by a potential victim in determining whether a duty was owed. Id., at pp. 7-8. The supreme court granted certiorari (Broussard v. State ex rel. Office of State Buildings, 2012-1238 (La.10/26/12), 99 So.3d 50), “to further examine, under the manifest error doctrine, whether a defective condition is more properly considered an open and obvious hazard where no duty is owed, rather than an unreasonably dangerous condition where comparative fault is applicable.” Broussard, 2012-1238, at p. 1, 99 So.3d at 50. (Emphasis added.)

The supreme court’s grant of certiorari appears to have been inspired in part by its concern regarding the line of cases and the analyses employed therein that denied a victim’s recovery based on whether a defective condition should be obvious to the victim, which runs perilously close to resurrecting the doctrine of assumption of risk. Broussard, 2011-0479 at p. 7.

|sNow, the following dictates from the supreme court in the Broussard opinion guide us in the analysis of the issue raised herein:

In order to avoid further overlap between the jury’s role as fact-finder and the judge’s role as lawgiver, we find the analytic framework for evaluating an unreasonable risk of harm is properly classified as a determination of whether a defendant breached a duty owed, rather than a determination of whether a duty is owed ab initio. It is axiomatic that the issue of whether a duty is owed is a question of law, and the issue of whether a defendant has breached a duty owed is a question of fact. The judge decides the former, and the fact-finder — judge or jury — decides the latter.

Broussard, 2012-1288 at p. 12, 99 So.3d at 50 (citations omitted.)

Because the determination of whether a defect is unreasonably dangerous necessarily involves a myriad of factual considerations, varying from case to case, the cost-benefit analysis employed by the fact-finder in making this determination is more properly associated with the breach, rather than the duty, element of our duty-risk analysis.

Id. (citations omitted.)

Thus, while a defendant only has a duty to protect against unreasonable risks that are not obvious or apparent, the fact-finder, employing a risk-utility balancing test, determines which risks are unreasonable and whether those risks pose an open and obvious hazard. In other words, the fact-finder determines whether defendant has breached a duty to keep its property in a reasonably safe condition by failing to discover, obviate, or warn of a defect that presents an unreasonable risk of harm.

Broussard, 2012-1238 at p. 13, 99 So.3d at 50.

Because the determination of whether a defective thing presents an unreasonable risk of harm “encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court.”

Id. (citations omitted.)

Reversing this court, the supreme court in Broussard reinstated the jury’s verdict, which awarded damages to the UPS driver plaintiff notwithstanding that it also assessed him with 38 percent fault. Pursuant to the foregoing dictates, it is inescapable that in this matter, summary judgment is no longer proper. The issue of whether the 19depression in the sidewalk in this case was an open and obvious condition, such that liability may attach to the landowner if the condition presented an unreasonable risk of harm, and whether, indeed, the condition presented an unreasonable risk of harm, under the particular facts and circumstances of this case, are all genuine issues of material fact remaining and properly determined by the trier of fact employing a duty risk analysis. And, again, guided by the supreme court’s Broussard opinion, this determination will include inquiry regarding the social utility of the sidewalk at issue, the likelihood and magnitude of harm, including whether it was an open and obvious condition, the cost of preventing the harm, and the nature of the plaintiffs activity, including any comparative fault that may attach to the plaintiffs conduct.

CONCLUSION

Accordingly, the judgment of the trial court, granting summary judgment in favor of Scottsdale Indemnity Company and Fairway Villas No. 1 Homeowners Association, Inc. and dismissing the claims of Patricia M. Currie against them, is hereby reversed. The matter is further hereby remanded to the trial court for further proceedings consistent herewith. Costs of this appeal are assessed to the defendants.

REVERSED AND REMANDED.

McDONALD, J., concurs with reasons.

McDONALD, J.,

concurring.

| TFor the following reasons I respectfully concur, agreeing only in the result reached. The majority relies on Broussard v. State, Office of State Buildings, 2012-1238 (La.4/5/13), 113 So.3d 175, in reversing the granting of summary judgment by the trial court. They conclude that Broussard “mandates that whether an open and obvious condition is an unreasonable risk of harm, such that liability may be imposed, is not a determination of whether a duty exists (a question of law), but rather, it is a determination of whether that duty was breached, a question of fact.” The majority concludes that summary judgment is not appropriate in determining whether an open and obvious defect is an unreasonable risk of harm because such a determination is a question of fact that must take into consideration the comparative fault of the victim.

There has been some disagreement in the prior case law concerning defects that are open and obvious. Some cases have held that there is no duty owed to an lainjured plaintiff who either knew or should have observed the defect. This is a legal issue that is decided by the court. Other cases have held that there is a duty to everyone whether careful or careless, but if the defect is open and obvious, there is no breach of the duty. This is a factual issue that is decided by the fact-finder, normally a jury. In Broussard, the supreme court appeared prepared to resolve these issues. In so doing, they stated that they granted writs to determine “under the manifest error doctrine, whether a defective condition is more properly considered an open and obvious hazard where no duty is owed, rather than an unreasonably dangerous condition where comparative fault is applicable.” Broussard, 2012-1238, 113 So.3d at 179. I note that a question of fact is subject to a manifest error review while a question of law is subject to a de novo review. By limiting the inquiry to an analysis under the manifest error doctrine, it would seem that the answer is implicit; since it concerns a determination of facts-it is the task of the jury or fact-fínder. The high court goes on further, “... we find the analytic framework for evaluating an unreasonable risk of harm is properly classified as a determination of whether a defendant breached a duty owed, rather than a determination of whether a duty is owed ab initio ... the issue of whether a duty is owed is a question of law, and the issue of whether a defendant has breached a duty owed is a question of fact. The judge decides the former, and the fact-finder— judge or jury — decides the latter.” Broussard, 2012-1238, 113 So.3d at 185.

|sThis should have ended the inquiry. And if so, the majority is correct, comparative fault is applicable in cases involving an open and obvious defect. The issue is resolved.

However, having started with this result directed theory, the supreme court then deviated into a discussion of open and obvious defects in relation to various prior decisions. But, the court failed to address the fact that some of the decisions were decided on a breach of duty and others that no duty was owed. The court begins by stating: “[W]e have consistently echoed one central theme throughout our open and obvious jurisprudence: If the complained-of condition should be obvious to all, then it may not be unreasonably dangerous.” Broussard, 2012-1238, 113 So.3d at 188. The court inexplicably cites Pitre and Murray in support of its thesis. However, both of these cases were decided on the question of duty, a legal question decided by the court, rather than a breach issue, to be decided by the fact-finder. Both are inapposite to the court’s theory that the evaluation of an unreasonable risk is a question of a breach of the duty owed. The court then attempts to reconcile its current theory with the other prior decisions (Pryor, Dauzat, and Eisenhardt) under the idea that the defect must be apparent to all or everyone for it to be open and obvious. However, like Pitre and Murray, Pryor is also a no duty case rather than a breach of duty case. While Dauzat and Eisenhardt might involve a breach of the duty rather than no duty, they are really more distinguishable because of the special knowledge that the plaintiff had in each. While this might have created a reasonable exception to the general rule for those who have either special knowledge or professional knowledge, the supreme court specifically declined to adopt such an exception.

Next, the court opines that there is no “bright-line” rule in these cases. The risk-utility analysis will lead to different results. However, the court emphasizes 14that “[I]n order for a defect to be considered open and obvious, the danger created by that defect must be apparent to all comers.” Broussard, 2012-1238, 113 So.3d at 192. I believe the court has adopted a “bright-line” rule. While there may not be a “bright-line” rule on whether a condition is apparent to the world, the new rule seems to be that the fact-finder must now determine if the duty has been breached and assign fault accordingly using the risk-utility analysis.

The supreme court had the opportunity to directly address the question of whether a condition that is open and obvious to everyone absolves the defendant of any duty to the plaintiff or whether a duty is owed to both blameless and careless plaintiffs, alike, and the question is whether there was a breach of the duty. If a breach is found, then comparative fault would be assigned to the parties. The court failed to directly address this issue. Rather than face the prior jurisprudence directly and resolve the confusion, the court attempted to reconcile these conflicting decisions.

I believe it would have been a better course of action for the supreme court to have adopted the theory proposed by Professors Maraist, Johnson, Galligan, and Corbett in explaining Dauzat that a class of people is created who have specialized knowledge and experience such that the risk should be open and obvious to all members of this specialized class. In such a case the defendant would owe no duty to the members of this class because the defect is so open and obvious to them. Such an application could be applicable to the facts of our case since Ms. Currie had traversed the sidewalk on numerous occasions and had specialized knowledge of the condition that existed on the sidewalk. Because she had lived there for some time, she was well aware that water frequently pooled or |fistood at this location and created a risk or harm. However, the supreme court specifically rejected this analysis.

In attempting to reconcile these various decisions, I believe the supreme court chose a case with poor facts. Broussard is about an elevator that failed to stop evenly with the adjacent floor. It is axiomatic that elevators make numerous trips back and forth among the various floors. Both the state and the employees in the building were aware that this elevator was prone to uneven stopping. There is a reference to one instance in which the elevator stopped more than 18 inches above the floor. Each time the elevator stops it creates a different scenario. Most often the elevator stops even with the floor; sometimes it stops lower than the floor and sometimes it stops above. The issue of open and obvious is different every time the elevator stops. I believe Justice Victory’s analysis on this issue is more persuasive. He opines:

The majority finds that the condition was not open and obvious “as the defect was not readily apparent to all who encountered it,” evidently because the record reflected other “instances of State employees either tripping or falling on the elevators after failing to notice they were misaligned.” Op. at 19. However, not only is the test whether the defect should be obvious to all, but it is the complained-of condition, i.e., the offset in the elevator floor in this elevator, which should be obvious to all, not other conditions in which other elevators were misaligned with the floor. Here, this condition, i.e., the 1 ½ — 3 inch offset where this elevator floor was elevated above the lobby floor, should have been obvious to all. Indeed, the woman who entered the elevator before the plaintiff testified that she noticed it and it was certainly obvious to this plaintiff. Whether other people failed to notice other conditions wherein elevators in the building failed to properly align with the floor is simply immaterial.
Broussard, 2012-1238, 113 So.3d at 195 (Victory, J., dissenting).

Justice Guidry also points out that the “reports of other [prior] elevator malfunctions ... goes to whether the State had knowledge of the elevator’s improper working order, not whether this particular condition presented an unreasonable risk of harm.” Broussard, 2012-1238, 113 So.3d at 196 (Guidry, J. dissenting).

| fiIn choosing a malfunctioning elevator to attempt to reconcile the inconsistent jurisprudence, I believe the court has only increased the uncertainty in this area. A case involving a broken sidewalk, a drop off on the shoulder of a road, a broken stairway, or broken bleachers is the type of case that lends itself more to the result intended by the supreme court. Unlike an elevator, these cases involve a condition that does not change from minute to minute or even from day to day. They lend themselves readily to a query of whether the defect is “open and obvious” to all and whether a plaintiff should, therefore, have seen it. Since the supreme court has adopted the “breach of a duty” query for the fact-finder, it would seem that it would be more readily applied with these types of defective conditions that do not change from minute to minute.

Not all imperfections are defects and not all defects present an unreasonable risk of harm. The majority finds the puddle of standing water on the sidewalk to be a defect. I do not believe standing water on a sidewalk in south Louisiana constitutes a defective condition. And such a condition certainly does not present an unreasonable risk of harm. If so, then there are thousands of such risks after the many rains that occur regularly in Louisiana.

However, the particular facts of this case present a unique situation. The pooling water on this sidewalk might not present a defective condition to anyone or everyone who encounters it. But the condition had existed for some extended time and the defendant had even repaired an eight foot section of the sidewalk. This would indicate a recognition that the condition presented a defect and perhaps even a risk of harm. The defendant suggests that they repaired the defective condition and it no longer exists. However, the plaintiff suggests that the original defective condition involved a sixteen foot section of the sidewalk and the defendant only repaired an eight foot section. This is certainly a genuine issue of material fact which would make the case improper for summary judgment.

17For these reasons, I concur only in the result reached by the majority and would also reverse the judgment of the trial court.

      . Pryor v. Iberia Parish School Board, 10-1683 (La.3/15/11), 60 So.3d 594 (per curiam), where the plaintiff injured herself while descending from some metal bleachers. The bleachers had wood planks for sears that doubled as steps. The alleged defective condition was an 18 inch gap between the first and second row. In ascending the bleachers, the plaintiff sat down and swung one leg at a time across the gap. So, she was well aware of the condition. Finding that the bleachers were not unreasonably dangerous, the supreme court affirmed the decision of the district court. It is not totally clear, but it seems the court that there was no duty owed rather than a breach of the duty.

        Dauzat v. Curnest Guillot Logging Inc., 08-0528 (La.12/02/08), 995 So.2d 1184, in which an experienced logging truck driver injured himself when driving an 18-wheel logging truck into a pothole on a logging road. He claimed he did not see the hole, but was well aware of the general condition of logging roads and the propensity for such holes. The court found there was no breach of the duty. However, there are some interesting aspects of the court’s decision, particularly whether the road condition was obvious to all or only to experienced logging truck drivers.

        Eisenhardt v. Snook, 08-1287 (La.3/17/09), 8 So.3d 541 (per curium), wherein the plaintiff slipped on some garbage residue that had been spilled on the steps of his girlfriend's apartment where he lived. After a trial, the court found in favor of the defendant, but it is unclear whether the finding was that no duty was owed or that there was a breach of the duty. The appellate court reversed in part and affirmed in part and allocated fault to each party. The supreme court reversed the court of appeal, but rather than straighten out: the matter, they seem to have denied recovery to the plaintiff because of what he should have known rather than what he actually knew or, more importantly, what would have been obvious to everyone.

        Pitre v. Louisiana Tech Univ., 95-1466 (La.5/10/96), 673 So.2d 585. in which a college student used a garbage can lid as a sled to slide down a slope into a campus parking lot after an ice and snow storm. He and three other students laid on their backs facing downhill and were pushed to begin the descent. The lid impacted the concrete base of a light pole and the student was paralyzed. The court found there was no duty owed because of the obvious and apparent danger of sliding down the hill into a light pole. Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988), in which a young man dove into the marked shallow end of a motel swimming pool. He was aware of the dangers of diving into shallow water. He was paralyzed from hitting his head and eventually died from these injuries. The court found that a duty was owed, even though the risk was apparent and obvious to the plaintiff.

      . Broussard, 2012-1238, 113 So.3d at 190, n. 9.

      . Frank L. Maraist, H. Alston Johnson III, Thomas C. Galligan, Jr., & William R. Cor-bett, Answering a Fool According to His Folly: Ruminations on Comparative Fault Thirty Years On, 70 La. L. Rev. 1105, 1127 (2011).

      . Broussard, 2012-1238, 113 So.3d at 190, n. 9.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Romanuel A. DAVIS.
    No. 13-KA-52.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 27, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Ernest C. Chen, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

12Pefendant appeals his sentence of five years at hard labor for theft of goods valued at more than $500.00 but less than $1,500.00, in violation of La. R.S. 14:67.10, claiming that his sentence is unconstitutionally excessive. We find the sentence imposed is not unconstitutionally excessive and affirm defendant’s conviction and sentence.

PROCEDURAL BACKGROUND

On March 8, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant, Romanuel A. Davis, with theft of goods valued at more than $500.00 but less than $1,500.00, in violation of La. R.S. 14:67.10. Defendant pled not guilty at his arraignment. Defendant proceeded to trial and on October 29, 2012, a six-person jury found him guilty as charged. On November 2, |s2012, the trial court sentenced defendant to five years imprisonment at hard labor. Defendant filed a written motion for reconsideration of his sentence, which the trial court denied. This timely appeal follows.

FACTUAL BACKGROUND

On February 28, 2012, Justin Gioia, a Wal-Mart Asset Protection associate, noticed defendant with a television (TV) in his basket as he walked through the electronics department of the Marrero store. He noticed defendant consistently look at his surroundings. Mr. Gioia questioned a Wal-Mart associate in the electronics department, who told him that she had not sold the TV to defendant. Mr. Gioia observed defendant walk to another area of the store, where he retrieved a receipt from his wallet. Mr. Gioia then observed defendant walk out of the general merchandise area to the front of the store, passing 36 cashier stations. Mr. Gioia stopped defendant inside the vestibule area of the store and asked to see defendant’s receipt for the merchandise in his shopping basket. Defendant gave Mr. Gi-oia an old, illegible receipt, torn in half.

Mr. Gioia contacted Deputy Jesse Dor-moy of the Jefferson Parish Sheriffs Office, who had been working a private security detail at the Wal-Mart store at the time of the incident. Mr. Gioia told Deputy Dormoy that someone suspected of shoplifting had been stopped at the front of the store. Deputy Dormoy arrived to the vestibule area and defendant willingly walked to the Loss Prevention Office, where Mr. Gioia questioned defendant. After defendant could not provide proof that he had paid for the items in his basket, Deputy Dormoy arrested defendant. A | customer service manager subsequently scanned the items in defendant’s basket to determine the value of the items. The training receipt introduced into evidence reflects the price for the 47-inch television as $788.00 and the price for the wall mount as $114.00.

DISCUSSION

On appeal, defendant challenges only his five-year sentence, claiming that his sentence is unconstitutionally excessive. Defendant further argues that the trial judge failed to adequately consider the factors designated in La.C.Cr.P. art. 894.1 in imposing the five-year maximum sentence under La. R.S. 14:67.10. Defendant argues that he is not the worst-type offender for which maximum sentences are reserved. He asserts that, while he does have a criminal record, his prior convictions are for relatively minor offenses that all stem from his drug addiction. Defendant further points out that he did not resist arrest and in fact -willingly complied with the officers’ investigation. Defendant argues that given this isolated shoplifting incident, the trial court’s imposition of the maximum sentence in this case is unconstitutionally excessive.

Defendant was convicted of theft of goods valued over $500.00 but under $1,500.00, in violation of La. R.S. 14:67.10, and was sentenced to five-years imprisonment at hard labor under La. R.S. 14:67.10(B)(2), which provides:

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

The trial court sentenced defendant to five years imprisonment at hard labor, but did not impose the discretionary fine. After sentencing, defendant orally moved for reconsideration of his sentence, asserting that the sentence is 1 ¡¡unconstitutionally excessive, and subsequently filed a written motion to reconsider sentence. In his motion to reconsider sentence, defendant claimed only that his sentence is unconstitutionally excessive. Defendant did not claim that the trial judge failed to comply with 894.1 or allege that the offense committed is related to his drug addiction. La.C.Cr.P. art. 881.1(E) provides that “[f]ailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” Because defendant failed to raise these issues in his motion to reconsider sentence, he is precluded from raising these issues on appeal. See State v. Hernandez-Zuniga, 11-378 (La.App. 5 Cir. 12/13/11), 81 So.3d 129, 134, writ denied, 12-0028 (La.4/20/12), 85 So.3d 1268. Therefore, defendant is limited to a bare review of his sentence for constitutional excessiveness. State v. Carter, 07-270 (La.App. 5 Cir. 12/27/07), 976 So.2d 196, 202; State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 771, writ denied, 00-3161 (La.10/12/01), 799 So.2d 494.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Horne, 11-204 (La. App. 5 Cir. 2/14/12), 88 So.3d 562, 569, writ denied, 12-0556 (La.6/1/12), 90 So.3d 437; and State v. Wickem, 99-1261 (La. App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. The trial judge is afforded broad discretion in sentencing and a reviewing court may not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Berry, 08-151 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ denied, 08-1660 (La.4/3/09), 6 So.3d 767; and State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

In reviewing a sentence for ex-cessiveness, an appellate court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992). On review, an appellate court does not determine whether another sentence might have been more appropriate, but whether the trial court abused its discretion. Pearson, 975 So.2d at 656; Horne, 88 So.3d at 569.

A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2785 (La.5/31/96), 674 So.2d 957. In considering whether the trial court abused its discretion in sentencing a defendant, a reviewing court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes by other courts. Horne, 88 So.3d at 569.

Concerning the first factor, the nature of the crime, the record reflects that defendant placed a large TV and a wall-mount bracket in his shopping basket and bypassed all points of sale. He presented an old, invalid receipt to attempt to mislead employees to believe that he had paid for the stolen items. Defendant’s 17actions were calculated and deceptive; the trial court pointed out that defendant provided no explanation for his actions.

Next, regarding the nature and background of the offender, the trial judge considered defendant’s criminal background in imposing his sentence. Prior criminal activity is one of the factors a trial judge may consider in sentencing a defendant. Lobo, 106 So.3d at 1193. During sentencing, the trial judge acknowledged defendant’s prior convictions for second degree battery, domestic abuse battery, possession of marijuana, and theft. Further, defendant also admitted to the court that he had previously been convicted in August of 2011 for possession of cocaine. The trial judge recognized defendant to be a repeat offender and pointed out that defendant committed the current crime while on “double probation.” See State v. Dorsey, 41,418 (La.App. 2 Cir. 9/20/06), 939 So.2d 608, 614, writ denied, 06-2686 (La.6/1/07), 957 So.2d 174 (wherein the Second Circuit Court of Appeal, in reviewing the defendant’s sentence, considered the fact that the defendant had previously received leniency in his prior offenses and continued to commit crimes while on probation).

Finally, considering sentences imposed for similar crimes in this and other courts, we recognize that La. R.S. 14:67.10 has been amended in recent years to decrease the maximum term of imprisonment from ten years to five years. Further, in cases involving theft of goods committed by defendants with a criminal history, the jurisprudence reflects that those defendants have been subsequently adjudicated multiple offenders and sentenced under the Habitual Offender Law. See State v. Caldwell, 46,645 (La.App. 2 Cir. 9/21/11), 74 So.3d 248, writ denied, 11-2348 (La.4/27/12), 86 So.3d 625.

Defendant argues that he is similarly situated to the defendant in State v. Hoskins, 10-650 (La.App. 5 Cir. 5/24/11), 66 So.3d 1186. We disagree. We find the facts and circumstances presented in Hos-kins distinguishable from this case. The defendant in Hoskins stole stereo speakers valued at over $500.00 from a school in violation of La. R.S. 14:67; pursuant to a plea agreement, the trial court sentenced the defendant to the maximum term of imprisonment — ten years imprisonment at hard labor. On appeal, this Court found the defendant’s sentence to be unconstitutionally excessive. The defendant in Hos-kins was a teenager with no criminal record at the time of the charged offense. Further, the teenage-defendant had entered into a plea agreement based upon placement into a boot camp program, which never occurred. Although the record in this case reflects that defendant did request placement in a certain drug rehabilitation program, such placement was not a factor he considered prior to entering into a plea agreement as in the Hoskins case.

We find that the five-year sentence imposed in this case is not unconstitutionally excessive. The record reflects that defendant has an extensive criminal history, including convictions for second degree battery, domestic abuse battery, possession of marijuana, possession of cocaine, and theft. The trial judge recognized that defendant had previously received leniency in his prior offenses yet committed this crime while on “double probation.” The trial judge observed the trial in this matter and knew that defendant placed a large TV and a wall-mount bracket into his shopping basket at Wal-Mart, bypassed 36 points of sale in an attempt to exit the store, and deceptively presented an invalid receipt when 19questioned about the stolen merchandise. Given defendant’s extensive criminal history and the facts presented in this case, we cannot find that the trial judge abused her wide discretion in imposing defendant’s five-year sentence under La. R.S. 14:67.10.

ERRORS PATENT

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

The record reflects no 24-hour delay between sentencing and the trial court’s denial of defendant’s motions for new trial and for post-verdict judgment of acquittal. La.C.Cr.P. art. 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

Although Article 873 does not explicitly require a 24-hour delay in sentencing after a motion for a post-verdict judgment of acquittal has been denied, this Court has applied the Article 873 delay to motions for post-verdict judgment of acquittal. State v. Johnson, 11-375 (La.App. 5 Cir. 12/28/11), 83 So.3d 1116, 1124, writ denied, 12-0296 (La.6/22/12), 91 So.3d 966.

However, Article 873 also provides that a defendant may waive the 24-hour delay. See also State v. James, 527 So.2d 504, 505 (La.App. 5 Cir.1988) (wherein this Court found that the defendant had waived the Article 873 sentencing delay when his counsel affirmatively responded that the defendant was prepared for sentencing); State v. Green, 04-357 (La.App. 5 Cir. 11/16/04), 890 So.2d 6, 12 (wherein this Court found defendant validly waived the delay required by Article 873 when defense counsel agreed that the defendant could be sentenced); and State v. Morton, 12-27 (La.App. 5 Cir. 5/31/12), 97 So.3d 1034, 1045, writ denied, 12-1476 (La.1/18/13), 107 So.3d 625 (wherein this Court found that the defendant waived the sentencing delay required by Article 873 based on the defendant’s affirmative statement that he was prepared for sentencing).

In this case, after the trial court denied defendant’s motions for new trial and for post-verdict judgment of acquittal, defense counsel stated, “[y]our Honor, he is before the Court for sentencing.” We find that defendant expressly waived the 24-hour delay period between the denial of his motions and his sentencing and, thus, no corrective action is necessary.

DECREE

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED

      . Defendant filed a motion for new trial and a motion for post-verdict judgment of acquittal; the trial court denied both motions.

      . The trial judge also recommended defendant for participation in the Blue Walters Program or other drug treatment programs available through the Department of Corrections.

      . At sentencing, defendant also made an oral motion for reconsideration of his sentence, which the trial court denied.

      . The state introduced into evidence a photograph of the vestibule area of the store.

      . The state introduced into evidence a photograph of the items contained in defendant's shopping basket, which included a 47-inch television and a wall-mount bracket for the T.V.

      . The state did not introduce this receipt into evidence at trial.

      . Under La.C.Cr.P. art. 894.1(C), the trial judge is not required to list every aggravating or mitigating circumstance applicable to the defendant as long as the record reflects that the trial judge adequately considered the guidelines of the article. The articulation of the factual basis for the sentence is the goal of the article, not rigid compliance with its provisions. State v. Sanders, 98-855, p. 5 (La.App. 5 Cir. 5/19/99), 734 So.2d 1276, 1279, writ denied, 99-1980 (La. 1/7/00), 752 So.2d 175. However, when there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in La.C.Cr.P. art. 894.1 does not require a remand for resentencing. State v. Lobo, 12-271 (La.App. 5 Cir. 12/18/12), 106 So.3d 1187, 1191-92; see also State v. Evans, 09-477 (La.App. 5 Cir. 12/29/09), 30 So.3d 958, 965-66, writ denied, 10-0363 (La.3/25/11), 61 So.3d 653. Our review of the record reflects that the trial judge sufficiently set forth a factual basis for the sentence imposed.

      . See Acts 2010, No. 585 § 1.

      . In comparing cases involving the theft statute, La. R.S. 14:67, courts have upheld the maximum sentence of ten years imprisonment for theft of property valued at over $500.00. See State v. Madison, 535 So.2d 1024 (La.App. 2 Cir.1988) (wherein the court found that imposing the maximum ten-year sentence was not unconstitutionally excessive given the defendant’s extensive criminal history and failure to respond to previous correctional treatment); and State v. Morris, 525 So.2d 1247, 1248 (La.App. 1 Cir.1988) (wherein the court found that the maximum ten-year sentence was not excessive for the defendant, who had a lengthy criminal record).