author: PETTIGREW, J.

text:
    GE COMMERCIAL FINANCE BUSINESS PROPERTY CORPORATION v. LOUISIANA HOSPITAL CENTER, LLC, Badr Idbeis, Steven J. Phillips, Stephen J. Harris and Hammond Area Development District.
    No. 2013 CA 0029.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 13, 2013.

      Joseph M. Bruno, Robert J. Bruno, Melissa A. Debarbieris, New Orleans, LA, for Intervenors-Appellants Robert Bruno Company, LLC and Robert J. Bruno.
    Glen R. Galbraith, Hammond, LA, Attorney For Defendant-Appellee Hammond Area Economic and Industrial Development District.
    Before PETTIGREW, McDONALD, ' and McClendon, jj.
   PETTIGREW, J.

[2In this appeal, intervenors challenge the trial court’s judgment, granting summary judgment in favor of defendant and dismissing all claims against defendant with prejudice. For the reasons that follow, we reverse in part and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The history of this case dates back to June 2011, when we issued a ruling concerning a partial summary judgment rendered in favor of GE Commercial Finance Business Property Corporation (“GECF”) on the issue of liability pursuant to loan documents entered into between the parties. GE Commercial Finance Business Property Corp. v. Louisiana Hosp. Center, L.L.C., 2010-1838 (La.App. 1 Cir. 6/10/11), 69 So.3d 649 (GE I). While the underlying facts of this case are well known to both this court and the parties herein, a brief review of the procedural history that has brought us to this point is necessary for a complete understanding of the court’s analysis that follows.

GECF is the holder and owner of a promissory nóte entitled “Amended and Restated Promissory Note,” executed by Louisiana Hospital Center, L.L.C. (“LHC”), dated January 31, 2007, for the amount of $18,000,000.00 (“the Note”). The Note amended and restated an earlier promissory note in the amount of $15,000,000.00 that LHC had executed in favor of GECF on February 25, 2005. LHC executed the Note to acquire financing from GECF for the construction of a medical office and hospital' facility in Hammond, Louisiana. As security for the financing, LHC executed a “Multiple Indebtedness Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing,” as well as a separate “Assignment of Leases and Rents,” in favor of GECF. As additional security for the Note, Badr Idbeis, Steven J.- Phillips, Stephen J. Harris, and twenty other individuals executed an unlimited guaranty agreement, entitled “Amended and Restated Guaranty Agreement (Construction Loan),” on January 31, 2007. This guaranty amended and restated an earlier unlimited guaranty, entitled “Guaranty Agreement (Construction Loan),” in favor of GECF, that was executed by the same guarantors on various dates, as security for the original promissory note, .in the [oamount of $15,000,000.00. LHC executed a “Construction Loan Agreement” with GECF, which governed the terms and conditions of the Note, as well as the scope of LHCs obligations under the various loan documents described above.

In order to acquire certain tax incentives, LHC executed an “Act of Sale” on February 1, 2006, whereby it transferred the hospital to the Hammond Area Economic and Industrial Development District (“HAEIDD”). The sale was made subject to GECF’s Mortgage and Assignment of Leases and Rents. In connection with the sale, HAEIDD then leased the hospital back to LHC and issued a taxable revenue bond, entitled “Taxable Revenue Bond (Louisiana Hospital Center, L.L.C. Project) Series 2006,” to GECF in the amount of $15,000,000.00 (“the Bond”). The Bond was governed by the “Indenture of Mortgage and Pledge,” executed between HAEIDD and Hancock Bank of Louisiana, the Trustee of the Bond. According to the clear language of the Bond, it was issued to represent the same concurrent indebtedness as the indebtedness that was owed under the Note. Likewise, the terms of the lease agreement between HAEIDD and LHC are equally as explicit in declaring that the lease would not “disturb” the Note between GECF and LHC.

On October 1, 2007, LHC failed to make the regular monthly payment due on the Note, and GECF notified LHC that all amounts would be accelerated if the October monthly payment was not made by October 22, 2007. On October 15, 2007, LHC made a partial monthly payment, which did not cure the outstanding event of default on the Note. Thus, GECF accelerated the entire balance due under the Note and made amicable demand on LHC and the guarantors to pay the outstanding balance of the Note in full.

In addition to defaulting on the Note, LHC failed to make payment on the principal and interest due on the Bond as of October 2007, thereby constituting a default under the lease between HAEIDD and LHC. LHC also failed to pay its annual administrative fees, failed to meet operating and employment requirements of the lease, and failed to make rental payments under the lease, all breaches of the lease between HAEIDD and LHC. As a result, in February 2008, HAEIDD notified LHC that it 14was invoking acceleration, making all payments under the lease immediately due and payable. HAEIDD sent a series of demand letters to LHC culminating in a March 3, 2008 letter, which purportedly terminated LHC’s lease and advised that HAEIDD would “undertake to lease [the hospital] to another party.”

On March 27, 2008, HAEIDD entered into a Memorandum of Agreement (“MOA”) with Robert J. Bruno and Robert Bruno Company, LLC (hereinafter collectively referred to as “Bruno”), concerning the hospital project stating that HAEIDD and Bruno “shall enter into a new lease pursuant to which Bruno, shall lease and complete construction of the Hospital Project.” Additionally, the MOA stated:

Upon the execution of this Memorandum Agreement along with the payment of $145,000.00 to HAEIDD (the “Option Payment”), the parties agree that the New Lease will be on the terms and subject to conditions substantially identical to those contained in that certain Lease Agreement by and between HAEIDD and Louisiana Hospital Center, LLC. {“LHC”)l]

On April 21, 2008, HAEIDD and Bruno executed the lease agreement that is at issue in this appeal. The lease between HAEIDD and Bruno contained the following pertinent language:

WHEREAS, [HAEIDD] formerly entered into a lease agreement with LHC dated as of February 1, 2006 in connection with the issuance of the Bonds and the proposed development of the Project (the “LHC Lease”); and
WHEREAS, after numerous continuing and uncured defaults (including nonpayment of rent), [HAEIDD] terminated the LHC Lease in accordance with its terms; and
WHEREAS, the parties hereto desire to enter into a subsequent lease of the land and improvements constituting the Project as described herein in such a manner as to preserve the repayment structure of the Bonds in substantially the same manner as was provided for in the LHC Lease;
WHEREAS, as an inducement to the granting of this Lease and the opportunity for [Bruno] to complete the development of the Project and to enter into this lease agreement, [Bruno] has paid to [HAEIDD] the nonrefundable sum of $145,000 (“Option Payment”)[.]

On September 26, 2008, during the course of the proceedings in GE I, HAEIDD filed a “Reply Memorandum To Oppositions To HAEIDD’s Motion For Partial Summary Judgment,” in which HAEIDD stated that it did not actually terminate the LHC lease, but |Brather opted for another remedy available against LHC, i.e., acceleration of rent. Noting that this statement was “directly at odds with HAEIDD’s early oral and written statements to Bruno” and the terms of the lease, Bruno filed a petition for intervention on January 5, 2009, seeking a ruling from the court as to whether the LHC lease was terminated and whether the subsequent April 21, 2008 lease between HAEIDD and Bruno was a valid lease of the hospital property. Bruno argued that if the LHC lease was never terminated, it was entitled to a judgment against HAEIDD in the amount of $145,000.00, the amount that Bruno had paid to HAEIDD for the nonexistent right to lease the hospital property.

The parties subsequently filed cross-motions for summary judgment, arguing that there were no material facts at issue and that the matter was ripe for summary judgment on their respective rights under the lease. Bruno argued that because the LHC lease was never terminated, its belief that it was terminated was an error that concerned a cause without which Bruno would never have paid HAEIDD $145,000.00 and would never have entered into the MOA or the lease. Moreover, Bruno maintained, that cause was one that was known to HAEIDD.

HAEIDD argued that the language of the lease agreement was clear, and the $145,000.00 was a non-refundable payment made by Bruno to secure the option to lease the hospital property. HAEIDD further asserted that Bruno assumed all risks associated with the hospital property and, in fact, contracted for the “hope of a lease.” Finally, HAEIDD maintained that Bruno did not meet any of the benchmarks enumerated in the lease agreement and that “[t]o allow recovery of the [$145,-000.00] in the face of Bruno’s derogation from the benchmarks set forth in the Lease would be inequitable.”

The matter proceeded to hearing on September 17, 2012, at which time the trial court heard argument from respective counsel. At the conclusion of the hearing, the trial court ruled in favor of HAEIDD, granting its motion for summary judgment and denying Bruno’s cross-motion for summary judgment. Judgment was signed by the trial court on October 22, 2012, dismissing, with prejudice, Bruno’s claims against HAEIDD.

|fiIt is from this judgment that Bruno has appealed, assigning error to the trial court’s determination that summary judgment was appropriate “as there are disputed issues of material fact which preclude the granting of summary judgment.”

LAW AND ANALYSIS

Standard of Review and General Principles of Summary Judgment

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court’s determination of the issues. Berard v. L-3 Communications Vertex Aerospace, LLC, 2009-1202, p. 5 (La.App. 1 Cir. 2/12/10), 35 So.3d 334, 339-340, writ denied, 2010-0715 (La.6/4/10), 38 So.3d 302. 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.Code Civ. P. art. 966(A)(2). Its purpose is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 2004-0806, p. 7 (La.6/25/04), 876 So.2d 764, 769. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

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 evidentiaiy burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Janney v. Pearce, 2009-2103, p. 5 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 288-289, writ denied, 2010-1356 (La.9/24/10), 45 So.3d 1078.

|7In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines, 2004-0806 at 1, 876 So.2d at 765. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507, p. 2 (La.12/8/00), 775 So.2d 1049,1050.

Was Summary Judgment Appropriate Under the Applicable Law?

A lease is defined in La. Civ.Code art, 2668 as follows:

Lease is a synallagmatic contract by which one party, the lessor, binds himself to give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay.
The consent of the parties as to the thing and the rent is essential but not necessarily sufficient for a contract of lease.

The essential elements of the lease are the thing, the price (rent), and the consent of the parties. Monterrey Center, LLC v. Education Partners, Inc., 2008-0734, p. 7 (La.App. 1 Cir. 12/23/08), 5 So.3d 225, 230.

Consent may be vitiated by error, fraud, or duress. La. Civ.Code art. 1948. Cause is the reason why a person obligates himself. Degravelles v. Hampton, 94-0819, p. 3 (La.App. 1 Cir. 3/3/95), 652 So.2d 647, 649, writ denied, 95-0826 (La.5/5/95), 654 So.2d 332. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. Civ. Code art. 1949. Error may concern a cause when it bears on the nature of the contract, or any other circumstance that the parties regarded, or should have in good faith regarded, as a cause of the obligation. La. Civ.Code art. 1950.

Fraud is defined in our civil code as “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” La. Civ.Code art. 1958. Fraud may also ^result from silence or inaction. Id. There are three basic elements to an action for fraud: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to the other party; and (3) the resulting error must relate to a circumstance substantially influencing the other party’s contractual consent. Terrebonne Concrete, LLC v. CEC Enterprises, LLC, 2011-0072, p. 9 (La.App. 1 Cir. 8/17/11), 76 So.3d 502, 509, writ denied, 2011-2021 (La.11/18/11), 75 So.3d 464.

In moving for summary judgment, HAEIDD argued that Bruno paid HAEIDD a $145,000.00 option payment in exchange for the opportunity to enter into a lease agreement for the hospital property and that the parties, by agreement, had assigned to Bruno the risk that Bruno may not be allowed to complete the hospital project. HAEIDD further asserted that the lease agreement and the MOA were both clear that the option payment would be nonrefundable regardless of whether Bruno was able to proceed with the hospital project. Finally, HAEIDD maintained that Bruno failed to meet any of the benchmarks required by the lease agreement and that to allow recovery of the option payment in the face of Bruno’s derogation from the benchmarks set forth in the lease agreement would be inequitable.

In support of its motion for summary judgment, HAEIDD submitted the affidavit of Charles R. Miller, Jr., President of HAEIDD. Mr. Miller indicated that he was familiar with the lease and MOA. He stated that the times prescribed in the lease for the benchmarks ranged from May 10, 2008 to December 31, 2008. Mr. Miller confirmed that Bruno had not completed any of the benchmarks and, thus, had breached the lease as of May 10, 2008.

Bruno opposed HAEIDD’s motion for summary judgment, arguing that HAEIDD had failed to introduce any material evidence to support its motion for summary judgment. Bruno alleged that its performance or non-performance under the lease was immaterial to a determination of the issue before the trial court. According to Bruno, the pivotal issue in this case was whether the LHC lease was terminated before HAEIDD leased the property to Bruno. Bruno argued that HAEIDD could not properly charge a | prospective tenant $145,000,00 for the right to lease property when HAEIDD knew that the property had already been leased to another party and that the prior lease was still in effect. Because HAEIDD failed to address these issues in its motion for summary judgment, Bruno maintained that HAEIDD was not entitled to judgment as a matter of law.

In support of its position, Bruno submitted the affidavit of Robert 3. Bruno, the managing member of Robert Bruno Company, LLC. Mr. Bruno attested to his involvement in the “extensive negotiation” of the lease between HAEIDD and Bruno and indicated that “[a]t all times during the negotiation and execution of the [MOA] and the Lease, [he] believed that HAEIDD had terminated the prior lease of the Property to LHC.” According to Mr. Bruno, his belief that the LHC lease had been terminated “was based upon representations made [to him by] HAEIDD’s representatives.” Mr. Bruno stated that had he known that the lease of the hospital to LHC had not been terminated, he would have never executed the MOA or the lease and he would have not paid the $145,000.00 option payment to HAEIDD.

On appeal, Bruno argues that HAEIDD failed to show that no genuine issues of material fact exists, thus precluding summary judgment. Bruno points out that HAEIDD listed only two uncontested issues of material fact in its motion for summary judgment, i.e., 1) that Bruno did not complete benchmarks as required by the lease agreement; and 2) that the lease agreement provided for the $145,000.00 option payment and for indemnification. However, Bruno maintains that this is “plainly insufficient to resolve all material issues of fact.” In the alternative, Bruno asserts that the validity of the lease remains in question and that this, too, precludes summary judgment in favor of HAEIDD. Following a thorough review of the record and the evidence introduced by the parties in support of their respective positions, we agree.

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Guardia v. Lakeview Regional Medical Center, 2008-1369, p. 3 (La.App. 1 Cir. 5/8/09), 13 So.3d 625, 628. A trial court cannot make credibility decisions on a motion for summary judgment. Monterrey Center, LLC, 2008-0734 at 10, 5 So.3d at 232. In deciding a motion for summary judgment, the trial court must assume that all of the witnesses are credible. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, pp. 16-17 (La.2/29/00), 755 So.2d 226, 236. Furthermore, summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice and should only be granted on such subjective issues when no genuine issue of material fact exists concerning that issue. Roger v. Bourgeois, 2006-0322, p. 6 (La.App. 1 Cir. 12/28/06), 951 So.2d 330, 333, writ denied, 2007-0189 (La.3/23/07), 951 So.2d 1105.

Based on our de novo review of the evidence, we conclude that a genuine issue of material fact remains as to whether there was a valid lease between the parties. We base this conclusion on the conflicting affidavits offered by the parties. On the record before us, we are unable to discern whether Bruno was induced to enter into the lease with HAEIDD by alleged misrepresentations made by HAEIDD that may have vitiated Bruno’s consent. Resolution of these unresolved issues is essential to Bruno’s cause of action against HAEIDD. Therefore, we conclude the trial court erred in granting summary judgment in favor of HAEIDD because doing so required the trial court to decide disputed genuine issues of material fact and to make credibility determinations.

CONCLUSION

For the above and foregoing reasons, that portion of the trial court’s October 22, 2012 judgment that granted summary judgment in favor of HAEIDD and dismissed, with prejudice, Bruno’s claims against HAEIDD is reversed, and the matter is remanded for further proceedings. All costs associated with this appeal are assessed against HAEIDD.

REVERSED IN PART AND REMANDED.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    Henry LONDON v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2013 CA 0034.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 13, 2013.
    James A. Gray II, New Orleans, LA, for Plaintiff/Appellant, Henry London.
    Carla S. Courtney-Harris, Baton Rouge, LA, for Defendant/Appellee, East Baton Rouge Parish School Board.
    Before PETTIGREW, McDONALD and McClendon, jj.
   McClendon, j.

| ¡Appellant seeks review of the trial court’s grant of a partial summary judgment that dismissed appellant’s claims for compensatory damages asserted under the Americans with Disabilities Act. Concluding that appellant cannot meet his burden to show intentional discrimination, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 23, 2006, Henry London, a paraplegic confined to a wheelchair, attended a basketball game at Glen Oaks High School. Because the handicapped parking space near the gym was occupied, Mr. London parked in a handicapped parking space near the front of the school. On his way to the gym, he approached a speed bump; which he crossed with assistance from a nearby person.

After the game, Mr. London took a dif-. ferent route back to his car. He approached a different speed bump and attempted to cross it. While rolling over the speed bump, his wheelchair tipped and he fell out, injuring his ribs.

Mr. London filed suit against the East Baton Rouge Parish School Board for damages resulting from his accident in the parking lot. He alleged that the School Board was negligent in failing to provide a wheelchair accessible route from the gym to the parking lot and that the School Board violated its “statutory duty to disabled persons such as the plaintiff.”

On October 7, 2011, the School Board filed a motion for summary judgment. In its motion for summary judgment, the School Board alleged that it was not liable to Mr. London under any theory of recovery, including negligence or claims asserted under the Americans With Disabilities Act (ADA).

Following a hearing, the trial court granted partial summary judgment in favor of the School Board, dismissing the ADA claim, but denied the motion on the negligence claim. The trial court designated its judgment on the ADA claim as “a final judgment for purposes of appeal.” Mr. London has appealed, |scontending that the trial court erred in granting the School Board’s motion for summary judgment on the ADA claim.

DISCUSSION

In determining whether summary judgment is appropriate, appellate courts review summary judgment de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. An appellate court 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. Guardia v. Lakeview Regional Medical Center, 08-1369 (La.App. 1 Cir. 5/8/09), 13 So.3d 625, 627. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Board of Sup’rs of Louisiana State University v. Louisiana Agr. Finance Authority, 07-0107 (La.App. 1 Cir. 2/8/08), 984 So.2d 72, 80.

Plaintiff asserts that genuine issues of material fact remain as to whether he is entitled to compensatory damages under the ADA. The ADA provides that “[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 USCA § 12132. A plaintiff asserting a private cause of action |4for violations of the ADA may recover compensatory damages only in cases of intentional discrimination. Guardians Ass’n v. Civil Serv. Comm’n of City of New York, 463 U.S. 582, 607 n. 27, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). The Supreme Court, however, has not given any guidance on what “intentional discrimination” means in the context of the ADA.

Most of the federal circuit courts addressing the issue of “intentional discrimination” have adopted a “deliberate indifference” standard. The deliberate indifference standard, unlike some tests for intentional discrimination, “does not require a showing of personal ill will or animosity toward the disabled person,” but rather can be “inferred from a defendant’s deliberate indifference to the strong likelihood that pursuit of its questioned policies' will likely result in a violation of federally protected rights.” Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir.2011).

The Fifth Circuit, however, has not adopted the “deliberate indifference” standard for claims for compensatory damages brought under the ADA. Delano-Pyle v. Victoria County, Texas, 302 F.3d 567, 575 (5th Cir.2002), cert. denied, Victoria County, Tex. v. Pyle, 540 U.S. 810, 124 S.Ct. 47, 157 L.Ed.2d 22 (2003). (“There is no ‘deliberate indifference’ standard applicable to public entities for purposes of the ADA or the [Rehabilitation Act].”) Rather, the Fifth Circuit requires a plaintiff to show that the discrimination was intentional. Id.

Mr. London contends that by placing speed bumps near the handicap parking spaces, the School Board intentionally discriminated against him. Mr. London avers that the purpose of the handicap parking spaces is to provide | ^handicap persons a safe route to travel to and from facilities, so that they can enjoy the benefit of, or participate in a service, program or activity being offered at the facility. Mr. London avers that it is undisputed that a speed bump was between the handicap parking space and the handicap ramp and asserts that the School Board cannot deny knowledge of their relative locations. Mr. London concludes that this raises a genuine issue of material fact as to whether the School Board breached its duty under the ADA,

On the other hand, the School Board contends that there were many places Mr. London could have parked that would have provided him wheelchair access to the gym. The School Board avers that the purpose of the handicapped parking spaces is to provide closer parking to certain parts of various facilities. The School Board urges that not every ingress and egress from a facility must be handicap accessible and that Mr. London has not cited any specific ADA guideline that it violated. The School Board concludes that the trial court did not err in granting its motion for summary judgment on the claim for compensatory damages under the ADA.

Regardless of whether we apply the deliberate indifference standard or the standard of intentional discrimination enunciated by the Fifth Circuit, Mr. London provides no basis from which a fact finder could conclude that the School Board intended to discriminate against him from the mere placement of the speed bumps in relation to handicap parking spaces. Even assuming that a violation of an ADA guideline existed, nothing suggests that the School Board was aware of such violation. Moreover, there had been no prior accidents similar to Mr. London’s accident, and the School Board set about removing the speed bumps following Mr. London’s accident to prevent this type of accident from occurring in the future. Cf. Delano-Pyle, 302 F.3d at 575 (wherein the Fifth Circuit affirmed a jury finding of discrimination and award of compensatory damages based on a police officer’s com-píete failure to accommodate the | ^plaintiff s hearing impairment during a traffic stop, despite the officer knowing of impairment and the significant prob-]ems it was creating during the encounter). In light of the foregoing, Mr. London cannot meet his burden to show that the School Board intentionally discriminated against him to support an award for compensatory damages under the ADA. Accordingly, we find no merit to Mr. London’s assignment of error on appeal.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting the School Board’s motion for summary judgment on the ADA claim is hereby affirmed. Costs of this appeal are assessed to appellant, Henry London.

AFFIRMED.

      . In certifying the judgment on the ADA claim as final, the trial court did not specifically indicate that there was no just reason for delay in accord with LSA-C.C.P. art. 19I5B. Moreover, the trial court did not provide its own analysis or reasons for the certification. Thus, under the principles enunciated in RJ. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113, 1122-23, before we address the merits of the appeal, we must review the propriety of the certification on which our jurisdiction to hear the appeal is based. After a review of the record in light of the factors set forth in Messinger, and balancing the need for judicial administration with the need for fairness to the parties, we conclude that the partial summary judgment was properly certified.

      . Mr. London has also filed a Motion for Leave to Amend Original Brief to include a copy of the trial court’s judgment and oral reasons for; judgment as attachments to his appellant brief. We hereby grant Mr. London’s motion.

      .The ADA generally tracks the language found in the Rehabilitation Act of 1973, 29 USCA § 794, which was enacted “to ensure that handicapped individuals are not denied jobs or other benefits because of prejudiced attitudes or ignorance of others.” Delano-Pyle v. Victoria County, Texas, 302 F.3d 567, 574 (5th Cir.2002) (citing Brennan v. Stewart, 834 F.2d 1248, 1259 (5th Cir.1988)). The ADA expressly provides that "[t]he remedies, procedures and rights” available under the Rehabilitation Act are also accessible under the ADA. 42 USCA § 12133. Accordingly, "Qjurisprudence interpreting either section is applicable to both.” Delano-Pyle, 302 F.3d at 574 (citing Hainze v. Richards, 207 F.3d 795, 799 (5th Cir.2000)).

        .See Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321, 331 (2nd Cir.1998), vacated on other grounds, 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 790 (1999), Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir.2011), Ferguson v. City of Phoenix, 157 F.3d 668, 674-75 (9th Cir.1998), cert. denied, 526 U.S. 1159, 119 S.Ct. 2049, 144 L.Ed.2d 216 (1999), Powers v. MLB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir.1999), Liese v, Indian River County Hasp. Dist., 701 F.3d 334, 348 (11th Cir.2012).

      . It is uncontested that there was a handicap parking spot near the gym, but that it was occupied at the time Mr. London sought to park his vehicle.


author: CRAIN, J.

text:
    UNIFUND CCR PARTNERS v. Felicia Dianne PERKINS.
    No. 2012 CA 1851.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 25, 2013.

      Benjamin G. Lambert, New Orleans, Louisiana, Attorney for Plaintiff/Appellee, Unifund CCR Partners.
    Garth J. Ridge, Baton Rouge, Louisiana, Attorney for Defendant/Appellant, Felicia Dianne Perkins.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

(2In this suit to collect a balance owed on a credit card, the trial court granted a summary judgment in favor of plaintiff, Unifund CCR Partners. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Unifund sued Felicia Dianne Perkins alleging that Perkins “entered into an agreement with [Unifund] ... or its assignor ... to obtain goods or services on open account through the use of a credit card.” Unifund further alleged that Perkins breached the agreement and owed the principal amount of $4,829.60, plus interest and attorney’s fees.

After Perkins answered denying the allegations, Unifund moved for a summary judgment and attached three exhibits to its motion and supporting memorandum: (1) the affidavit of Kim Kenney; (2) a monthly billing statement in Perkins’ name indicating a balance due of $4,829.60; and (8) a demand letter from counsel for Unifund to Perkins. Perkins opposed the motion with an affidavit attesting that she has “no knowledge of ever having the credit card sued upon” and that she did “not know who opened this account, if it was ever opened in [her] name, and if done so, it was done without [her] knowledge, authorization or permission.”

Although the parties dispute the extent of any additional evidence that was offered at the hearing of the motion, the trial court found that Unifund established the debt and that Perkin’s affidavit was “self-serving” and insufficient to defeat the summary judgment. A judgment was signed in favor of Unifund and against 13Perkins for the amount demanded, plus interest, attorney’s fees of 25% of the principal and interest, and all costs.

Perkins appeals arguing that the trial court erred by granting the summary judgment when the claim was disputed by Perkins in her affidavit. Perkins also asserts that Kenney’s affidavit was not based on personal knowledge, the documents attached thereto were not verified, and that Unifund failed to prove the amount owed, that it owned the debt, or the applicable interest rate.

MOTION TO STRIKE

We first address the contents of the record before this court and a motion to strike filed on behalf of Perkins. The transcript of the hearing of the motion for summary judgment reflects that Unifund offered and introduced the “entire record,” which it represented “should” contain several account statements, a bill of sale, and a certificate confirming transfers of the account from the original issuer of the credit card to Unifund. During argument, counsel for Unifund also referenced, but did not offer into evidence, interrogatories and admissions of fact. None of these documents were included in the record originally lodged with this court. Pursuant to a motion to supplement the record filed by Unifund, the trial court ordered the record supplemented to include these items. Perkins responded in this court by filing a motion to strike the documents asserting that they were not admitted into evidence in the trial court and do not form a part of the record on appeal.

Louisiana Code of Civil Procedure article 2132 authorizes the correction of a record on appeal that is “incorrect or contains misstatements, irregularities or infor-malities, or which omits a material part of the trial record;” however, the record should not be supplemented with a document that was never offered, introduced, or admitted into evidence. See Williams Law Firm v. Board of Supervisor of Louisiana State University, 08-0079 (La.App. 1 Cir. 4/2/04), 878 So.2d 557, 562.

Counsel for Unifund argues that the documents were offered into evidence at the hearing and should be included in the record. The transcript of the hearing does not confirm that assertion. Rather, the transcript reflects that counsel offered and introduced “the entire record” and generally identified various documents that “should be” contained in the record. However, there is no indication that these documents were actually in the suit record at that time, nor did counsel separately offer and introduce the documents into evidence. The minute entry for the hearing indicates only that “[d]ocumentary evidence was introduced” without any identification of the documents. According to the record originally lodged with this court, the suit record at the time of the hearing contained only Unifund’s single page, unverified petition, two unanswered requests for admissions of fact, Perkins’ answer to the petition, and the motion for summary judgment, supporting memorandum, and the three exhibits attached thereto. These documents make no reference to the exhibits that Unifund later added to the record through the motion to supplement.

Absent some evidence that the subject documents were separately introduced at the hearing or that they were contained in the suit record when counsel introduced the “entire record” at the hearing, the record on appeal should not have been supplemented to include these exhibits. This court cannot consider evidence that was not part of the record made in the trial court. We grant the motion to strike and order the supplemented documents removed from the record. See Williams Law Firm, 878 So.2d at 562 (after reviewing the record and transcript of the hearing, the court granted the motion to strike an exhibit that was never offered, introduced or admitted into evidence).

| .LAW AND ANALYSIS

A motion for summary judgment may be granted if, and only if, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Pro. art. 966B (prior to amendment by 2012 La. Acts. No. 257); Louisiana High School Athletics Association, Inc. v. State, 12-1471 (La.1/29/13), 107 So.3d 583, 598.

The party seeking summary judgment has the burden of proving there is no genuine issue of material fact. La.Code Civ. Pro. art. 966C. If the movant satisfies the initial burden, the burden shifts to the party opposing summary judgment to present factual support sufficient to show he will be able to satisfy the evidentiary burden at trial. La.Code Civ. Pro. art. 966C(2); Suire v. Lafayette City-Parish Consolidated Government, 04-1459 (La.4/12/05), 907 So.2d 37, 56. Since Uni-fund would have the burden of proof at trial, it had the burden to show there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. See Louisiana High School Athletics Association, Inc., 107 So.3d at 599.

Appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La.App. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 10-2227 (La.11/19/10), 49 So.3d 387. 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-appellant is entitled to judgment as a matter of law. All Crane Rental of Georgia, Inc., 47 So.3d at 1027.

16Suits to collect credit card debt are treated as suits on an open account. See Capital One Bank (USA) NA v. Gato, 12-0246 (La.App. 1 Cir. 11/14/12), 2012 WL 5511644 (unpublished), 2012 WL 5506591; Capital One Bank (USA), NA v. Sanches, 13-0003 (La.App. 4th Cir. 6/12/13), 119 So.3d 870 To establish a pri-ma facie case, the creditor must prove that the record of the account was kept in the course of business and introduce evidence regarding its accuracy. Once a creditor prevails in establishing its prima facie case, the burden shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits. Hat’s Equipment, Inc. v. WHM, LLC, 11-1982 (La.App. 1 Cir. 5/4/12), 92 So.3d 1072, 1076.

Unifund relies primarily upon Kenney’s affidavit to establish the account balance and Unifund’s right to collect it. We find that the affidavit is not competent evidence for use in support of a motion for summary judgment. Louisiana Code of Civil Procedure article 967A provides in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

Personal knowledge encompasses only those facts that the affiant saw, heard, or perceived with his own senses. Berard v. L-3 Communications Vertex Aerospace, LLC, 09-1202 (La.App. 1 Cir. 2/12/10), 35 So.3d 334, 349, writ denied, 10-0715 (La.6/4/10), 38 So.3d 302.

While Kenney’s affidavit contains the assertion that she has “personal knowledge, and that she is competent to testify to the matters stated herein,” the affidavit contains no facts or information setting forth the basis of either her personal knowledge or her competency to testify to the matters stated in the affidavit. The affidavit does not identify her position of employment, if any, with Unifund; nor does it disclose if she has ever reviewed any documentation or |7records with respect to the account; nor does it verify or refer to any documents as being attached to the affidavit. Rather, Kenney simply identifies the account by number and states that the sum of $5,367.23 is “due and payable” from Perkins. The only other substantive information in the affidavit is a statement that the account was “issued under the name of FIRST USA BANK NA and acquired from Chase Bank USA NA” and was thereafter forwarded to counsel for Uni-fund for collection. Again, no basis for this information is provided, and no documents are referenced or attached.

Article 967’s requirement of personal knowledge is not satisfied by the mere statement that the affidavit is made on “personal knowledge” since that would tend to make the affiant both judge and witness. Benoit v. Burger Chef Systems of Lafayette, Inc., 257 So.2d 439, 441 (La.App. 1 Cir.1972). The requirement that the affidavit show affirmatively that the affiant is competent to testify to the matters stated therein enables the court to make a determination as to the competency of the affiant as a witness to the material fact at issue. Benoit, 257 So.2d at 441. An affirmative showing of competency cannot be established without a predicate showing of personal knowledge. Otherwise, personal knowledge may be based on hearsay or other incompetent evidence. Benoit, 257 So.2d at 441.

Kenney’s affidavit fails to establish any predicate fact showing that she has personal knowledge of the subject account and is competent to testify to the matters set forth in the affidavit. Therefore, the affidavit does not satisfy the requirements of Article 967A, is not competent summary judgment evidence, and will not be considered by this court on de novo review. See Robertson v. Doug Ashy Building Materials, Inc., 10-1552 (La.App. 1 Cir. 10/4/11), 77 So.3d 339, 350, fn. 15, writs denied, 11-2468, 11-2430, (La.1/13/12), 77 So.3d 972, 973.

1 sThe remaining exhibits attached to the motion for summary judgment are the unsworn and unverified monthly account billing statement and the demand letter. Louisiana Code of Civil Procedure articles 966 and 967 do not permit a party to use unsworn and unverified documents as summary judgment evidence. A document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no eviden-tiary value on a motion for summary judgment. Bunge North America, Inc. v. Board of Commerce & Industry, 07-1746 (La.App. 1 Cir. 5/2/08), 991 So.2d 511, 527, writ denied, 08-1594 (La.11/21/08), 996 So.2d 1106. In meeting the burden of proof, unsworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform them into competent summary judgment evidence. Bunge North America, Inc., 991

So.2d at 527. Based upon the foregoing, the unsworn and unverified monthly billing statement and demand letter relied upon by Unifund are not competent summary judgment evidence and will not be considered by this court on de novo review.

Although Unifund also introduced the “entire record” at the hearing of the motion, the only additional documents in the record were the petition, two unanswered requests for admissions of fact, and Perkins’ answer to the petition. These pleadings reflect disputed allegations and do not establish any material facts.

The exclusion of the three exhibits attached to the motion for summary judgment, together with the lack of any other documentation in the record proving any material facts, renders Unifund’s motion for summary judgment unsupported by any evidence. Unifund failed to satisfy its burden of proving the account and the accuracy of the amount due. The trial court erred in granting a summary judgment to Unifund, and we reverse that judgment. See Sanches, 119 So.3d at 875 (summary judgment was not proper in suit to collect credit card indebtedness 19where affidavit failed to adequately establish account and authenticate account documents).

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court granting a summary judgment in favor of Unifund CCR Partners and remand for further proceedings. All costs of this appeal are assessed to Unifund.

REVERSED AND REMANDED.

WHIPPLE, C.J., signed with permission.

WELCH, J., signed with permission.

      . The defendant’s middle name is spelled "Dianne” in the plaintiff’s petition, the defendant’s answer and in the judgment; however, based upon her affidavit, the correct spelling of her middle name is "Dionne.”

      . The three previously identified exhibits attached to Unifund’s motion for summary judgment are in the original record lodged with this court and are not the subject of the motion to strike.

      . The judgment on appeal was signed on November 8, 2010 and is therefore governed by the version of Article 966 in effect prior to its amendment in 2012.

      . In light of this holding, we pretermit discussion of Perkins' remaining assignments of error.


text:
    Quintin N. BRIDGES v. NEW ORLEANS TRUCKING AND RENTAL DEPOT, INC.
    No. 2013 CA 0769.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 2013.
    Richard J. Voelker, Stephen W. Brooks, Jr., Covington, Louisiana, Attorneys for Defendant/Appellant, New Orleans Trucking and Rental Depot, Inc.

      Joseph G. Albe, New Orleans, Louisiana, Attorney for Claimant/Appellee, Quintín N. Bridges.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

[2In this workers’ compensation case, the employer appeals a judgment reversing the Medical Director’s denial of a lumbar MRI requested by the claimant’s orthopedist. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Quintín N. Bridges was allegedly injured in the course and scope of his employment with New Orleans Trucking and Rental Depot, Inc., and sought workers’ compensation benefits. After treating for some time with Dr. William Alden, Bridges was referred to Dr. F. Allen Johnston for an orthopedic evaluation. Dr. Johnston recommended an MRI of Bridges’ lower back, which the employer’s workers’ compensation carrier refused to authorize.

Bridges filed a 1009 “Disputed Claim for Medical Treatment” requesting review of the treatment denial by the Office of Workers’ Compensation Administration Medical Director pursuant to Louisiana Revised Statute 23:1203.1 J. The Medical Director determined that the medical records submitted for review did not support approval of the requested MRI and denied the claim. Bridges then filed a 1008 disputed claim for compensation appealing the Medical Director’s decision pursuant to Louisiana Revised Statute 23:1203.1K. The Workers’ Compensation Judge (WCJ) reversed the decision of the Medical Director, and the employer now appeals.

DISCUSSION

Louisiana Revised Statute 23:1203.1K provides that any party disagreeing with a decision of the Medical Director may appeal that decision by filing a 1008 disputed claim for compensation. On review, the Medical Director’s decision may be overturned when it is shown by clear and convincing evidence that the decision was not in accordance with the Medical Treatment Guidelines of [sLouisiana Revised Statutes 23:1203.1 et seq. La. R.S. 23:1203.1K. Proof by clear and convincing evidence is proof that the existence of a disputed fact is highly probable, or much more probable than not. McCray v. Delta Industries, Inc., 00-1694 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 268. This is a heavier burden of proof than proof by a preponderance of the evidence, but is less burdensome than proof beyond a reasonable doubt. Id.

In oral reasons for judgment, the WCJ stated that this matter must be considered in light of its order rendered in Bridges’ separate OWC proceeding, filed under OWC docket number 12-03523. That order, signed October 16, 2012, includes the following:

IT IS ORDERED THAT:

4. Dr. William Alden, the defendant and Dr. F. Allen Johnston shall comply with all aspects of the Medical Treatment Guidelines (MTG). The parties, through their attorneys, right to argue the applicability of the MTG at the trial/ and or next hearing held on these issues are reserved; and
5. Since Dr. Alden [ (Bridges’ primary physician) ] referred claimant to an orthopedist and this OWC Judge ordered Dr. F. Allen Johnston as claimant’s choice of orthopedist, this OWC Court now further clarifies that Dr. F. Allen Johnston is the proper physician to request or not request the lumbar and cervical MRIs. The right to argue this issue at trial is reserved.

The WCJ went on to state that the lumbar MRI was requested by Dr. Johnston as part of his initial evaluation granted to Bridges pursuant to Louisiana Revised Statute 23:1121, and therefore the Medical Treatment Guidelines were not applicable.

The Medical Treatment Guidelines were promulgated pursuant to Section 1208.1, which pertinently provides:

B. The director shall, through the office of workers’ compensation administration, promulgate rules in accordance with the Administrative Procedure Act, [Louisiana Revised Statutes] 49:950 et seq., to establish a medical treatment schedule.
^* * ⅜
I. After the promulgation of the medical treatment schedule, throughout this Chapter, and notwithstanding any provision of law to the contrary, medical care, services, and treatment due, pursuant to [Louisiana Revised Statutes] 23:1203, et seq., by the employer to the employee shall mean care, services, and treatment in accordance with the medical treatment schedule....

The WCJ referenced Section 1121, which provides that an employee shall have the right to select one treating physician in any field or specialty. Section 1121 does not provide that testing ordered by the selected physician during his evaluation of the claimant is exempt from the Medical Treatment Guidelines promulgated pursuant to Section 1203.1. Nor does Section 1203.1 exempt diagnostic testing performed by a physician selected pursuant to Section 1121 from its definition of “medical care, services, and treatment.”

Nonetheless, we find that the WCJ was correct in overturning the Medical Director’s decision. The Medical Treatment Guidelines provide that:

1. Imaging studies are generally accepted, well-established and widely used diagnostic procedures.. In the absence of myelopathy, or progressive neurological changes, or history of cancer, imaging usually is not appropriate until conservative therapy has been tried and failed. Six to eight weeks of treatment are usually an adequate period of time before an imaging procedure is in order, but the clinician should use judgment in this regard. When indicated, imaging studies can be utilized for further evaluation of the low back, based upon the mechanism of injury, symptoms, and patient history.
a. Magnetic Resonance Imaging (MRI) is rarely indicated in patients with non-traumatic acute low back pain with no neuropathic signs or symptoms. It is generally the first follow-up imaging study in individuals who respond poorly to proper conservative care.

La. Admin. Code 40:I.2019C.

The given rationale for the Medical Director’s decision was that only one clinical record from the physician requesting the MRJ was provided, and that record did “not include a thorough neuromuscular history and physical exam to warrant testing approval.” However, the appellate record reflects that the Medical | .^Director was presented with records of treatment prior to Bridges’ examination by Dr. Johnston, the requesting physician. When viewed in globo, the treatment records reflect that Bridges was referred to Dr. Johnston after more than six months of treatment had not resolved his back symptoms. Radiographic imaging was requested early in the course of Bridges’ treatment, therefore the Medical Treatment Guidelines support follow-up imaging study. Additionally, the Medical Treatment Guidelines do not expressly require a neuromuscular history and physical exam by the requesting physician. Thus, the medical records show by clear and convincing evidence that the decision of the Medical Director was not in accordance with the applicable provisions. The Medical Director’s decision was correctly reversed.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the Workers’ Compensation Judge, which reversed the Medical DirectoPs denial of a lumbar MRI requested by the claimant’s orthopedist. Costs of this appeal are assessed to New Orleans Trucking and Rental Depot, Inc.

AFFIRMED.

      . Section 1203.1 was recently amended by 2013 La. Acts No. 317. All references herein are to the statute prior to that amendment.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Keith STEWART.
    No. 13-KA-639.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 31, 2014.
    Rehearing Denied March 7, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Appellee, the State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate, New Orleans, Louisiana, for Appellant.
    Keith Stewart, Louisiana State Penitentiary, Angola, Louisiana, In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

|2This is defendant’s second appeal before this Court. On appeal, defendant challenges his sentence as illegal under the statutory scheme in place on the date of imposition. For the following reasons, we amend defendant’s sentence, affirm as amended, and remand for correction of an error patent.

Facts and Procedural History

The underlying facts were set forth in State v. Robinson, 421 So.2d 229 (La.1982), which was the co-defendant’s appeal:

On August 5, 1980, [Jimmy Robinson, co-defendant] and Keith Stewart knocked at the door of the apartment of Mrs. Joyce Waites, who managed an apartment complex. They told Mrs. Waites that they wanted to apply for a job, but they left when she advised that there were no positions available. Approximately 30 minutes later, Mrs. Waites answered another knock at the door and was confronted by the same two men, who drew guns and demanded money. When Mrs. Waites pointed to her purse, [Robinson] placed a gun against her head and told her to lie on the floor.
[Robinson] held the gun to Mrs. Waites’ head, while Stewart searched the house for valuables. Mrs. Waites warned that her husband was coming home for lunch soon and begged them to leave, but they did not do so. When [Mr. Waites] arrived, [Robinson] and Stewart used the gun to require him to lie on the floor next to Mrs. Waites. [Robinson] then made Mrs. Waites accompany him upstairs to search for more money. When they came back downstairs, [Robinson] again told her to lie on the floor next to her husband.
|sMrs. Waites told [Robinson] that she could not stop shaking and asked for a cigarette, which [he] gave her. At [Robinson]’s instruction, she placed her head on the floor and closed her eyes. When she heard a shot, she looked up and started screaming when she saw that her husband had been shot. [Robinson] placed the gun against her head and told her to shut up or she would be next. Shortly thereafter, [Robinson] and Stewart left the apartment with the stolen money in the Waites’ car.
Mr. Waites died of a gunshot wound to the head. Later the same day, [Robinson] was arrested and confessed to the shooting.

State v. Robinson, 421 So.2d at 230.

On August 22, 1980, a Jefferson Parish Grand Jury indicted defendant, Keith Stewart, with first degree murder, in violation of La. R.S. 14:3o. On January 28, 1982, a jury convicted him of second degree murder in violation of La. R.S. 14:30.1. On February 5, 1982, the trial judge sentenced defendant to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. The Louisiana Supreme Court affirmed defendant’s conviction and sentence on September 8, 1983. State v. Stewart, 437 So.2d 872 (La.1983).

On August 14, 2012, defendant filed a “Motion to Vacate and Correct an Illegal Sentence,” citing the United States Supreme Court’s pronouncement in Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). On March 28, 2013, the trial judge granted the motion, vacated the original sentence, and resen-tenced defendant to life imprisonment at hard labor with the benefit of parole. That day, the State and the defense both objected to the sentence. Defendant also filed a timely motion for appeal that was granted.

| JLaw and Argument

Pursuant to accepted procedure, appointed appellant counsel has filed an appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record. For the following reasons, we deny counsel’s request.

In addition to a counseled brief, defendant filed supplemental pro se briefs on November 19, 2013 and December 17, 2013. In his pro se briefs, defendant argues that his sentence of life imprisonment at hard labor with parole is not authorized by La. R.S. 14:30.1 and, therefore, the sentence is illegal. Defendant contends that the mandatory minimum life imprisonment sentence is constitutionally excessive under the circumstances of this case (because he did not kill or intend to kill the victim) and that the matter should be remanded to the trial court for resentencing to the “next responsive verdict.”

For those offenders convicted of second degree murder in Louisiana, La. R.S. 14:30.1 mandates a sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. However, as noted above, in 2012, the United States Supreme Court, in Miller v. Alabama, supra, held that a state’s statutory sentencing scheme that mandates life imprisonment without parole, for those offenders under the age of 18 years at the time they committed a homicide offense, violates the Eighth Amendment prohibition of “cruel and unusual punishments.” Miller v. Alabama, 182 S.Ct. at 2460. The Miller Court |fidid not prohibit life imprisonment without parole for juveniles, but instead required that the statutory sentencing scheme authorize a sentencing court to consider an offender’s youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles who have committed a homicide offense. State v. Simmons, 11-1810 (La.10/12/12), 99 So.3d 28 (per curiam).

In 2018, in response to Miller v. Alabama, supra, the Louisiana Legislature enacted La.C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E)(1).

La.C.Cr.P. art. 878.1 provides as follows:

A. In any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) where the offender was under the age of eighteen years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender’s level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.

La. R.S. 15:574.4(E)(1) provides in pertinent part as follows:

E. (1) -Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) who was under the age of eighteen years at the time of the commission of the offense shall be eligible for parole consideration pursuant to the provisions of this Subsection if a judicial determination has been made that the person is entitled to parole eligibility pursuant to Code of Criminal Procedure Article 878.1 and all of the following conditions have been met:
(a) The offender has served thirty-five years of the sentence imposed. |fi(b) The offender has not committed any disciplinary offenses in the twelve consecutive months prior to the parole eligibility date.
(c) The offender has completed the mandatory minimum of one hundred hours of prerelease programming in accordance with R.S. 15:827.1.
(d) The offender has completed substance abuse treatment as applicable.
(e) The offender has obtained a GED certification, unless the offender has previously obtained a high school diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability. If the offender is deemed incapable of obtaining a GED certification, the offender shall complete at least one of the following:
(i) A literacy program.
(ii) An adult basic education program.
(iii) A job skills training program.
(f) The offender has obtained a low-risk level designation determined by a validated risk assessment instrument approved by the secretary of the Department of Public Safety and Corrections.
(g) The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections.

However, in 2013, the Louisiana Supreme Court held in State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, a case that is factually similar to this case, that Miller v. Alabama, supra, cannot be retroactively applied to those defendants whose underlying convictions and sentences are, and have been, final. Further, the Tate court also held that the newly-enacted legislation, which codifies Miller in Louisiana, La.C.Cr.P. art. 878.1 and R.S. 15:574.4(E)(1), only applies prospectively. The supreme court stated in pertinent part:

In conclusion, we find, under the Teag-ue analysis, Miller sets forth a new rule of criminal constitutional procedure, which is neither a substantive nor a watershed rule implicative of the fundamental fairness and accuracy of the criminal proceeding. Accordingly, we find the Miller rule is not subject to retroactive application on collateral review. We likewise find, under its plain and unambiguous language, 2013 La. Acts 239 applies prospectively only. Accordingly, we reverse the judgment of the Court of Appeal and reinstate the judgment of the District Court in its entirety.

[ rjTate, 130 So.3d at 829 at *12.

In this case, defendant seeks review of his sentence of life imprisonment with parole imposed after a Miller hearing on March 28, 2013. Based on the supreme court’s recent pronouncement in Tate, supra, which is the law of Louisiana on this issue, we find that defendant’s sentence of life imprisonment with eligibility for parole is illegally lenient. This Court has permissive authority to correct an illegally lenient sentence under La.C.Cr.P. art. 882. State v. Pitt, 09-1054 (La.App. 5 Cir. 4/27/10), 40 So.3d 219, 224, writ denied, 10-1141 (La.12/10/10), 51 So.3d 725. Accordingly, we amend the current sentence to life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence as mandated by La. R.S. 14:30.1 and affirm, as amended.

Errors patent

Defendant requests an error patent review, which this Court routinely performs in accordance with La.C.Cr.P. art. 920. We note one error patent that requires correction.

The commitment reflects that defendant was convicted of first degree murder in violation of La. R.S. 14:30; however, the record reflects that defendant was convicted of second degree murder in violation of La. R.S. 14:30.1. Therefore, we remand the matter with instructions to the district court to amend the commitment to reflect this information and to the clerk of court to transmit the amended commitment to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections Legal Department. See, La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-02U (La. 9/15/06), 937 So.2d 8i6.

AMENDED; AFFIRMED AS AMENDED; REMANDED; MOTION TO WITHDRAW DENIED.

      . Co-defendant, Jimmy R. Robinson, was also indicted with the same offense in the same indictment.

      . On a jurisdictional note, La. Const, of 1974, Art. 5, § 5(E) provides in pertinent part, that “the supreme court shall have exclusive appellate jurisdiction to decide criminal appeals where the defendant has been convicted of a felony ... but only when an order of appeal has been entered prior to July 1, 1982....” Here, the Order of Appeal was entered on or after March 28, 2013, which excludes this from the supreme court's exclusive appellate jurisdiction.

      .The procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990) was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam ), and adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . See, Acts 2013, No. 239, § 2, eff. August 1, 2013.

      . Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).


author: LOLLEY, J.

text:
    IN RE The Medical Review Panel of Sandra Turner VANKREGTEN.
    No. 48,622-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 5, 2014.
    M.F. “Rick” Fayard, Bossier City, for Applicants, Andrew Flenner and Kenneth Flenner.
    Mayer, Smith & Roberts, Shreveport, by Mark A. Goodwin, for Respondent, CHRISTUS Health Northern Louisiana.
    Before STEWART, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| ¶ Andrew Flenner and Kenneth Flenner sought supervisory review of a judgment of the First Judicial District Court, Caddo Parish, Louisiana, wherein the trial court granted defendant CHRISTUS Health Northern Louisiana d/b/a CHRISTUS Schumpert Health System’s (“Schumpert”) motion to compel the Flenners’ compliance with the Louisiana Medical Malpractice Act. We granted the writ and placed the matter on the appeal docket for consideration. For the following reasons, the judgment of the trial court is affirmed.

Facts

Andrew and Kenneth Flenner are the surviving sons of Sandra Turner Vankreg-ten, who died on September 29, 2011, following a surgical procedure at Schumpert. Pursuant to the Louisiana Medical Mai-practice Act, La. R.S. 40:1299.41, et seq. (the “MMA”), the Flenners filed a complaint and instituted a medical review panel against Schumpert and its nursing staff, specifically naming two nurses as defendants: Robert Ingram, an R.N., and Donald Gaines, an L.P.N. The two nurses treated the Flenners’ mother on the floor of the hospital following surgery. No physician was named as a defendant.

The Flenners nominated Debra Patricia Sheldon, EdJD., APRN-CS, NE-BC, OCN, CNE, as their medical review panel member. Schumpert objected to the nomination as a violation of the MMA because Sheldon is a registered nurse and not a physician. The Flenners refused to nominate a physician, arguing that the alleged negligence was by two nurses and the relevant statute under the MMA allows for a “health care provider” of the same class and specialty to be selected by the complainant. The attorney chairperson of the panel advised that he did not have the authority to settle |2the dispute. Thus, Schumpert filed the instant motion in the trial court to compel the Flenners to comply with the MMA. The trial court, while noting Sheldon’s high credentials, also noted that the plaintiffs were unable to offer further authority to the trial court to support their appointment of a nonphysician panel member. The trial court granted the motion, finding that the MMA “contemplates that only medical doctors serve on a medical review panel.” The Flenners sought supervisory review of the judgment, and this court granted the writ, placing it on the appeal docket for consideration.

DlSCÜSSION

The sole issue is whether the MMA, specifically La. R.S. 40:1299.47, allows for a registered nurse to be a medical review panelist in this medical malpractice claim against a hospital and two nurses. All parties agree that there are no reported Louisiana cases that squarely address this issue. The Flenners take the position that the MMA allows the appointment of a “health care provider” to the panel, and that the definition of such is not limited to physicians. On the other hand, Schumpert argues that, in effect, there is only one party defendant in this case — Schum-pert — and in such cases, the MMA mandates that all panelists be physicians. We agree.

As noted, this precise issue has not been addressed squarely by the Louisiana courts. Thus, our determination is primarily made on our interpretation of the statutory law. In Louisiana, the starting point in the interpretation of any statute is the language of the statute itself. Moreno v. Entergy Corp., 2012-0097 (La.12/04/12), 105 So.3d 40. Words and phrases shall be read with them context and shall be construed according to the common and approved usage of the language. La. R.S. 1:3. When a law is clear and unambiguous and its application does not lead to absurd Inconsequences, the law must be applied as written. La. C.C. art. 9; La. R.S. 1:3, 1:4; Caldwell v. Owens, 34,894 (La.App.2d Cir.03/08/01), 781 So.2d 895.

The parties in this case disagree on the interpretation of a subsection of La. R.S. 40:1299.47, which is the part of the MMA specifically addressing medical review panels. Schumpert particularly relies upon subsection C(3)(j), which states as follows:

(j) If there is only one party defendant which is not a hospital, community blood center, tissue bank, or ambulance service, all panelists except the attorney shall be from the same class and specialty of practice of health care provider as the defendant. If there is only one party defendant which is a hospital, community blood center, tissue bank, or ambulance service, all panelists ex cept the attorney shall be physicians. If there are claims against multiple defendants, one or more of whom are health care providers other than a hospital, community blood center, tissue bank, or ambulance service, the panelists selected in accordance with this Subsection may also be selected from health care providers who are from the same class and specialty of practice of health care providers as are any of the defendants other than a hospital, community blood center, tissue bank, or ambulance service. (Emphasis added).

Schumpert, looking to the second sentence of La. R.S. 40:1299.47C(3)(j), argues that only physicians should be on this panel, because there is only “one party defendant which is a hospital” in this lawsuit. Specifically, Schumpert maintains that although three parties were named in the letter to convene the medical review panel, there is actually only one defendant, because the named nurses are employees of Schumpert. Therefore, they are not separately liable for any acts of negligence, only Schumpert is, making Schumpert the “one party defendant.” Notably, La. R.S. 40:1299.47A(1) states, in pertinent part:

(b) A request for review of a malpractice claim or a malpractice complaint shall contain, at a minimum, all of the following:
|4(vi) A brief description of the alleged malpractice as to each named defendant health care provider. (Emphasis added).

If we consider the Flenners’ request to convene the medical review panel, we observe that it clearly alleges no independent allegations against Schumpert other than in its capacity as employer of the named nurses. All of the allegations in the Flen-ners’ claim are against the nursing staff of Schumpert. They allege that:

During Ms. Vankregten’s hospitalization, the nursing staff at Schumpert Medical Center, specifically the nursing staff on the observation unit fourth floor, failed to follow the standard of care including but not limited to:
1. Failure to properly monitor/assess a patient’s condition and properly interpret a patient’s signs and symptoms;
2. Failure to document a patient’s progress and/or lack of progress and response to treatment;
3. Failure to communica[te] with medical personnel in a timely manner when a patient’s condition warranted it;
4. Failure to follow a physician’s verbal/written order.
Ms. Vankregten’s death is the unfortunate result of the negligent care of the nursing staff at Schumpert Medical Center....

It is clear that the claimants, at this point in the litigation, have not stated any independent claims against Schumpert. Their only claims against Schumpert are in its capacity as employer of the two nurses. This case differs from White v. Proctor & Gamble, 36,502 (La.App.2d Cir.10/23/02), 830 So.2d 514, writ denied, 2003-0026 (La.03/14/03), 839 So.2d 49. In White, this court determined that there were at least two [ .^defendants, because the act or omission of Proctor & Gamble may have provided an independent basis for liability separate from the physician it indemnified. Here, without a claim against Schumpert individually, there is effectively only one defendant in this case. Because Schum-pert potentially ,is only vicariously liable to the Flenners, this is essentially a claim against “one party defendant which is a hospital,” and “all panelists except the attorney shall be physicians.”

So considering, pursuant to the clear and unambiguous directives of La. R.S. 40:1299.47C(3)(j), because there is in essence' only “one party defendant,” it is mandated that the entire medical review panel be physicians. Thus, the Flenners’ appointment of a nurse to the panel is not in keeping with the statute and cannot be allowed. The trial court’s determination was not in error.

Conclusion

For the foregoing reasons, the judgment of the trial court granting the motion of the defendant, CHRISTUS Health Northern Louisiana d/b/a CHRISTUS Sehum-pert Health System, is affirmed. All costs of this appeal are assessed to Andrew Flenner and Kenneth Flenner.

AFFIRMED.