author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Latour O. TURNER.
    No. 12-KA-855.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Shannon K Swaim, 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, MARC E. JOHNSON and HANS J. LILJEBERG.
   MARC E. JOHNSON, Judge.

| ^Defendant, Latour Turner, appeals the trial court’s denial of his motion to suppress the evidence under State v. Crosby, 338 So.2d 584 (La.1976). For the reasons that follow, we affirm.

Defendant was charged in a bill of information with possession of a handgun while in possession of marijuana in violation of La. R.S. 14:95(E) (count one), two counts of possession with intent to distribute marijuana in violation of La. R.S. 40:966(A) (counts two and three), felon in possession of a firearm in violation of La. R.S. 14:95.1 (count four), and possession of cocaine in violation of La. R.S. 40:967(C) (count five). The State subsequently entered a nolle prosequi as to count four.

Defendant filed motions to suppress the evidence and statement, which were denied after a hearing. He sought review of the trial court’s denial of his motion to suppress the evidence, which was denied by this Court on the basis Defendant had Ran adequate remedy on appeal. State v. Turner, 10-311 (La.App. 5 Cir. 4/9/10) (unpublished writ disposition).

Thereafter, on June 1, 2010, Defendant pled guilty under State v. Crosby, supra, to counts one, two and five. He also pled guilty to count three. Pursuant to a plea agreement, the trial court sentenced Defendant to five years without benefit of parole, probation or suspension of sentence on count one; 12 years, with the first five years to be served without benefit of parole, probation or suspension of sentence, on each of the counts two and three; and five years on count five. The trial court ordered the sentences to run concurrently with each other and with Defendant’s sentence in another case.

Defendant obtained an out-of-time appeal through an application for post-conviction relief on January 3, 2012. He now appeals the trial court’s denial of his motion to suppress the evidence. The record shows that Defendant’s guilty pleas to counts one, two and five were accepted pursuant to Crosby, which allows appellate review if, at the time the plea is entered, the defendant expressly reserved his right to appeal a specific adverse ruling in the case Crosby, supra. Here, Defendant failed to specify which pre-trial ruling he desired to reserve for appeal.

A defendant’s failure to specify which pre-trial ruling he desires to reserve for appeal as part of a guilty plea entered pursuant to Crosby limits the scope of appellate review, but it does not preclude review altogether. State v. Joseph, 08-315 (La.5/16/03); 847 So.2d 1196 (per curiam). Absent specification, the appellate court should presume the Crosby reservation preserves review of those evidentiary rulings that “go to the heart of the prosecution’s case,” such as the denial of a motion to suppress, and not rulings that may affect the conduct of the Rtrial but do not substantially relate to guilt. Id., 847 So.2d at 1196-97. Thus, we find the denial of Defendant’s motion to suppress evidence is reviewable on appeal.

Defendant argues the trial court erred in denying his motion to suppress the evidence because the police officers did not have probable cause to arrest him and, thus, the search of his vehicle incident to the arrest was illegal.

At the suppression hearing, Deputy Joshua Collins with the Jefferson Parish Sheriffs Office testified that he and his partner were on patrol near the Tallow Tree area of Jefferson Parish on May 15, 2009, when he initiated a traffic stop at approximately 1:06 a.m. after Defendant turned right without using a proper turn signal. Deputy Collins stated that Defendant slowed his vehicle, traveled approximately 500 yards, and came to a stop.

On his own initiative, Defendant exited his vehicle and approached the deputies’ patrol car. Deputy Collins noted that Defendant seemed impaired. He explained that Defendant was very unsure of his footing, had glazed over eyes that had a brown tint to them, had di’oopy eyelids and a droopy face, and spoke with a slurred tone. Deputy Collins testified that in his experience, these characteristics were indicative of a person possibly being high on marijuana or a similar substance. As Defendant approached, Deputy Collins smelled a strong odor of marijuana emanating from Defendant’s vehicle. He also detected a slight odor of marijuana on Defendant’s clothes. Deputy Collins did not conduct a field sobriety test because he was not certified at the time to do so.

Deputy Collins asked Defendant if he had been “smoking weed,” and Defendant replied, “Oh, I was smoking weed at my boy’s house. There’s none in |sthe car. There’s nothing here.” Deputy Collins closed the door to Defendant’s vehicle, which had been left open, and called for a canine unit. Deputy Collins placed Defendant in handcuffs, advised him of his rights, and put him in the backseat of the patrol car while he waited for the canine unit to arrive.

The canine unit arrived at the scene within 10-20 minutes. The canine officer conducted an “exterior perimeter” of Defendant’s vehicle with his drug detection dog. The dog alerted to the rear gas cap and to the driver’s side of the vehicle where the hood meets the windshield. Deputy Collins and his partner subsequently searched those areas. Inside the gas cap, the deputies found a clear plastic bag containing vegetative matter. Inside that bag was an additional clear bag of vegetative matter. In a separate clear plastic bag were numerous off-white rocks. Under the hood of the vehicle, the deputies found a large clear bag with numerous other clear bags filled with vegetative matter and a black semiautomatic pistol.

The deputies then searched the interior of the vehicle and discovered a blunt containing the same vegetative matter as the plastic bags found in the gas cap and under the hood in a compartment near the windshield visor. The deputies also found a box of “great blunts,” which Deputy Collins explained are cut open, emptied of tobacco, and used as flavored smoking paper.

Deputy Collins testified that Defendant was placed under arrest after the narcotics were found. Defendant was also issued a citation for turning without using a proper turn signal and driving with a suspended license.

Deputy Collins was the sole witness at the suppression hearing. At the conclusion of the hearing, the trial court gave the parties time to submit briefs. Thereafter, the trial court denied the motions to suppress.

| fiBoth the Fourth Amendment to the Constitution of the United States and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. State v. Kinard, 12-446 (La.App. 5 Cir. 11/27/12); 105 So.3d 974, 978. Warrantless searches and seizures are unreasonable per se unless justified by one of the exceptions to the warrant requirement. If evidence was derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. Id.

Initially, the State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. State v. Thompson, 11-915 (La.5/8/12); 93 So.3d 553, 563; La.C.Cr.P. art. 703(D). The trial court’s denial of a motion to suppress is afforded great weight and its ruling will not be set aside unless there is an abuse of discretion. Id.

The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by La.C.Cr.P. art. 215.1, as well as by state and federal jurisprudence. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred. State v. Waters, 00-356 (La.3/12/01); 780 So.2d 1053, 1056, citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). The standard is purely objective and does not take into consideration the subjective beliefs or expectations of the detaining officer. Id. “When an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable, | .¡.regardless of the officer’s subjective motivation.” State v. Hunt, 09-1589 (La.12/1/09); 25 So.3d 746, 753.

In this case, Deputy Collins observed Defendant’s vehicle turn right without using a turn signal, which is prohibited by La. R.S. 32:104(B). Thus, Deputy Collins had probable cause to pull the vehicle over for a traffic violation.

Louisiana Code of Criminal Procedure article 215.1(D) states that in conducting a traffic stop “an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity.” Once Defendant stopped his vehicle, he immediately exited without any further action by the officers. As Defendant approached the officers, Deputy Collins observed that he was obviously impaired and detected a strong odor of marijuana coming from the vehicle and Defendant’s clothes. Based on this, Deputy Collins had reasonable suspicion of additional criminal activity to justify the enlargement of the scope of his investigation and the request for aid by the canine unit. See State v. Chinn, 11-893 (La.App. 5 Cir. 4/24/12); 94 So.3d 838, 844, writ denied, 12-1171 (La.11/2/12); 99 So.3d 663.

Inherent in the right of the police to conduct a brief investigatory detention is also the right to use reasonable force to effectuate the detention. State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08); 993 So.2d 651, 657. There is no question that that the use of handcuffs incrementally increases the degree of force that is used in detaining an individual. However, the use of handcuffs does not necessarily elevate the detention to an arrest. To show that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, the State |Rmust show some fact or circumstance that could have supported a reasonable belief that the use of restraints was necessary to carry out the legitimate purpose of the stop without exposing the law enforcement officers, the public, or the suspect himself to an undue risk of harm. Id.

Deputy Collins placed Defendant in handcuffs after detecting the odor of marijuana coming from Defendant’s vehicle and his person. When asked if he had been smoking marijuana, Defendant stated he had. It has long been established that drugs, guns, and violence often go together and is a factor to support the reasonableness of using restraints. State v. Mitchell, 10-334 (La.App. 5 Cir. 10/26/10); 52 So.3d 155, 160, writ denied, 11-355 (La.12/2/11); 76 So.3d 1170. The record shows that the officers were in a high crime area where numerous undercover buys and drug arrests had occurred. Additionally, the officers could not see how many people were in the vehicle Defendant exited. Under these circumstances, we find that the handcuffing of Defendant was reasonable and did not rise to the level of an arrest, but rather was a permissible detention for further investigation.

The delay of 10-20 minutes for the canine unit to arrive on the scene also did not convert the encounter into a de facto arrest, but rather allowed Deputy Collins the opportunity to “pursue a means of investigation that was likely to confirm or dispel his suspicions quickly” without unnecessary delay. State v. Chinn, 94 So.3d at 844, quoting U.S. v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). (See also State v. Turner, 13-180 (La.3/1/13); 108 So.3d 753 (per curiam), where the Louisiana Supreme Court found that the officer’s handcuffing of the defendant, who was behaving erratically, and placing him in a [ 9private office for one hour while awaiting the arrival of a canine unit to sniff the defendant’s luggage upon the officer’s suspicion the defendant was a drug courier did not rise to the level of an arrest for which probable cause was required; and State v. Miller, 00-1657 (La.10/26/01); 798 So.2d 947, 951, where the supreme court held that the defendant’s 53-minute detention from the traffic stop until the canine alerted to the defendant’s trunk did not convert the encounter into a defacto arrest.)

Having determined the initial stop and detention of Defendant were lawful, our next inquiry is whether the subsequent search of Defendant’s vehicle was legal. We find that the search of Defendant’s vehicle was justified pursuant to the automobile exception to the warrant requirement. The Louisiana Supreme Court has explained that the inherent mobility of a vehicle and the risk of losing evidence because of this mobility have prompted courts to allow police to conduct an immediate warrantless search with probable cause. State v. Long, 03-2592 (La.9/9/04); 884 So.2d 1176, 1183 n. 6, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005).

In this case, both the canine’s alert to the gas cap and hood area of Defendant’s vehicle and Deputy Collins’ detection of the odor of marijuana emanating from the vehicle gave the officers probable cause to search the car. Courts have consistently held that the odor of marijuana provides officers with sufficient probable cause to conduct warrantless searches of vehicles. See State v. Mitchell, 52 So.3d at 160. Thus, even without the use of the drug dog and its alert on the exterior of Defendant’s vehicle, Deputy Collins had probable cause to search Defendant’s vehicle.

On appeal, Defendant argues the search of his vehicle was illegal under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), which |lnonly allows the search of a vehicle incident to a recent occupant’s arrest if the arrestee is within reaching distance to the vehicle at the time of the search. However, the instant case is distinguishable from the facts in Gant because it does not involve a search incident to an arrest, but rather the evidence was seized after the officer had probable cause to believe the vehicle contained evidence of criminal activity.

In summary, Deputy Collins had probable cause to stop Defendant’s vehicle when he observed a traffic violation. Upon observing Defendant’s impairment and smelling the odor of marijuana emanating from the vehicle and on Defendant’s person, Deputy Collins had reasonable suspicion to enlarge the scope of his investigation. The odor of marijuana coming from Defendant’s vehicle and the drug detection dog’s alert to the vehicle gave the officers probable cause to search the vehicle for contraband. The warrantless search of the vehicle based on probable cause was allowed under the automobile exception. Thus, the evidence seized was the result of a lawful stop and search. Accordingly, the trial court properly denied Defendant’s Motion to Suppress the Evidence.

In accordance with La.C.Cr.P. art. 920, we have conducted a review of the record for errors patent. The State contends Defendant received an illegally lenient sentence on count one, possession of a firearm while in possession of marijuana, because he did not receive the mandatory fine required by La. R.S. 14:95(E). La. R.S. 14:95(E) provides that an offender “shall be fined not more than ten thousand dollars.” Although this Court has held that a statute requiring a fine of “not more than” a specified amount does require a fine, this matter is not free from doubt. State v. Kerlec, 06-838 (La.App. 5 Cir. 4/11/07); 957 So.2d 810, 815.

| uThis Court has the authority to correct an illegally lenient sentence under La.C.Cr.P. art. 882; however, this authority is permissive rather than mandatory. State v. Pollard, 12-346 (La.App. 5 Cir. 12/18/12); 106 So.3d 1194, 1203. In this case, Defendant was sentenced in accordance with a plea agreement. When a defendant is sentenced pursuant to a guilty plea, this Court has declined to correct an illegally lenient sentence, recognizing that the appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and that resulted in the disposition of the case favorable to the defendant. State v. McGee, 09-102 (La.App. 5 Cir. 9/29/09); 24 So.3d 235, 242. Additionally, we note Defendant is indigent, since he is represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases. Since Defendant’s sentence resulted from a guilty plea and he is indigent, we decline to exercise our authority to correct the illegally lenient sentence. See State v. Kinard, 12-446 (La.App. 5 Cir. 11/27/12); 105 So.3d 974, 980.

Our review also shows that the commitment does not reflect that all four of Defendant’s sentences were imposed at hard labor. The sentencing transcript shows that each of Defendant’s sentences was imposed “in the Department of Corrections.” However, the commitment only indicates that Defendant’s 12-year sentence was to be served at hard labor. When there is a discrepancy in the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand the matter to the trial court for correction of the commitment to reflect that each of the four sentences is to be served at hard labor to insure the accuracy of the record. We further order that a copy of the corrected commitment be transmitted to the Louisiana Department of Corrections.

\, .DECREE

We find no error in the trial court’s denial of Defendant’s motion to suppress the evidence. Accordingly, Defendant’s convictions and sentences are affirmed. The matter is remanded for correction of the commitment.

AFFIRMED; REMANDED WITH INSTRUCTION

      . Count three initially charged Defendant with possession with intent to distribute marijuana as a violation of La. R.S. 40:966(C)(1)(A). The bill of information was later amended to reflect the correct statute, La. R.S. 40:966(A), for the charge.

      . Counts one, two and five arose from an incident that occurred on May 15, 2009, while count three arose from an incident that occurred on July 18, 2009. According to the record, Defendant’s guilty plea to count three was not entered pursuant Crosby.

      . This was the only statement Defendant made to the officers.

      . La. R.S. 32:104(B) provides: "Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then travelling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.”

      . Of note, we believe the officers had probable cause to arrest Defendant at this time based on the smell of marijuana coming from his vehicle and person, his obvious impairment, and his admission that he had been “smoking weed.” See State v. Wyatt, 99-2221 (La.App. 4 Cir. 9/27/00); 775 So.2d 481, 483.

        . Even if the search of Defendant’s vehicle had been incident to his arrest for a marijuana-related offense, Gant, 556 U.S. at 343, 129 S.Ct. at 1719, allows for the search of the vehicle if there is reason to believe the vehicle contains evidence of the offense of arrest.

      . A sentence committing a defendant to the Department of Corrections is necessarily at hard labor. State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04); 885 So.2d 618, 621 n2.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge.

license: Public Domain

text:
    Sherri CARTER, on behalf of Kenya BLAIR, as Natural Tutrix v. BROTHERS LAPALCO, L.L.C. d/b/a/ Brothers Food Mart # 128 d/b/a Brothers Food Mart, James River Insurance Company.
    No. 13-CA-1.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Edward J. Womac, Jr., Anthony J. Mi-lazzo, III, Jason Giles, Attorneys at Law, New Orleans, LA, for Plaintiff/App ellee.
    Paula M. Wellons, D. Ashbrooke Tullís, Attorneys at Law, New Orleans, LA, for Defendants/Appellants.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

|2Plaintiff, Kenya Blair, filed suit against defendants, Brothers Avondale, L.L.C. d/b/a Brothers Food Mart # 128 d/b/a Brothers Food Mart and its insurer James River Insurance Company (“Brothers Avondale”), for injuries sustained when she slipped and fell on a wet floor inside their convenience store. The trial court rendered judgment in favor of Ms. Blair and awarded general damages of $15,000.00 and medical expenses of $3,138.17. Brothers Avondale appeals from this decision of the trial court.

FACTS

The accident occurred on the evening of September 7, 2009. Ms. Blair, accompanied by her sister-in-law, went into the Brothers Avondale store to purchase some soda and chips. Upon entering the store, she passed in front of two aisles, and then went down the third aisle to the rear of the store where the drink coolers were located. She then started toward the front, proceeding down the Rmiddle aisle where the chips were located. While traversing the middle aisle, she slipped and fell.

When Ms. Blair entered the store, a day laborer named “Jose” was mopping the floor. He had positioned a “Wet Floor” sign in front of the display racks between the second and third aisles. Ms. Blau-stated that she entered the store and immediately proceeded to the back, and she did not notice either Jose or the “Wet Floor” sign at the front of the aisles. She testified that there was no “Wet Floor” sign located at the back of the store or in the middle aisle. She further stated that the aisle was very narrow, and she would have hit the sign had it been there.

After Ms. Blair fell, Jose and a store patron helped her up. She went to the cashier at the front of the store, paid for her items, and left the store. Ms. Blah-testified that her back was hurting, and on the store’s videotape of the accident she is seen holding her back.

Imad “Tony” Abdel was the manager present at Brothers Avondale on the date of the accident. He testified that the appropriate procedure for mopping the floor is to put down three “Wet Floor” signs, then sweep the floors and then mop with a mixture of water and bleach. One of the “Wet Floor” signs is placed in the front of the store, and the other two signs are moved to each section as it is mopped. Mr. Abdel testified that he hired Jose for one day and instructed him on how to mop the floors. He further stated that all three “Wet Floor” signs were in use. Mr. Abdel saw Ms. Blair fall. He did not come from behind the counter to assist, but he did instruct Jose to help Ms. Blair.

A videotape of the accident was introduced into evidence at trial. It shows Jose mopping the floor at the center aisle, and moving the “Wet Floor” sign at the front of the store. The videotape does not show the back of the store or the aisles, |4which are at issue, and it does not show Jose moving any other “Wet Floor” signs or placing a ‘Wet Floor” sign in the center aisle.

At trial, Mr. Abdel admitted that there were eight to ten video cameras placed in various areas of the store. He stated that he saved only the video of the front of the store because it provided the best view of the accident.

Hannah Vancour was the cashier behind the front counter facing the aisles on the date of the accident. She stated that she saw a “Wet Floor” sign directly in front of her and another in the center aisle where Ms. Blair fell. Ms. Vancour acknowledged that she was in a personal relationship with Mr. Abdel.

As a result of the fall, Ms. Blair suffered a back injury. She was seen by Dr. William Alden who diagnosed cervical strain with spasm, lumbar strain with spasm and post-traumatic cephalgia. She was treated conservatively with therapy and medications. Ms. Blair stated that, at the time of trial, she still had some back pain which she treated with Ibuprofen.

DISCUSSION

In this appeal, Brothers Avondale presents five assignments of error that cover three issues for review. First, they argue that the trial court erred in rendering judgment against a party who did not make an appearance in this suit. Second, they allege that the trial court erred in its award of special damages, and that it failed to consider a Medicaid lien. Finally, they allege that the trial court erred in finding Brothers Avondale liable and in failing to assess comparative fault to Ms. Blair.

NONPARTY

In their first allegation of error, Brothers Avondale alleges that the trial court erred in rendering judgment against a nonparty. When plaintiff filed the petition, she erroneously named Brothers La-palco, L.L.C. d/b/a Brothers Food Mart # 128 |fid/b/a Brothers Food Mart (“Brothers Lapalco”) as defendant, along with James River Insurance Company. By her first supplemental and amending petition, plaintiff amended her petition to add as defendant Brothers Avondale, L.L.C. d/b/a Avondale Brothers # 128 d/b/a Brothers Food Mart (“Brothers Avondale”). Brothers Avondale answered the petition and participated in all proceedings, including the trial of this matter. However, in its judgment the trial court named Brothers Lapalco instead of Brothers Avondale.

Brothers Avondale now alleges that the judgment names a nonparty and requests that the judgment be reversed. La. C.C.P. art. 2164 provides, in pertinent part that, “[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.... ”

Clearly, the trial court’s intent was to render judgment against Brothers Avon-dale, and it was a clerical error to name Brothers Lapalco rather than Brothers Avondale as the party east in judgment. Accordingly, we amend the judgment to substitute Brothers Avondale for Brothers Lapalco. Harvey v. Traylor, 96-1821 (La.App. 4 Cir. 2/5/97), 688 So.2d 1324, writ denied, 97-0587 (La.4/18/97), 692 So.2d 454.

SPECIAL DAMAGES

In their second and third allegations of error, Brothers Avondale allege that the trial court erred in awarding special damages, and in failing to address the Medicaid lien filed by the Department of Health and Hospitals.

Brothers Avondale first contend that the trial court erred in assessing special damages because Ms. Blair’s medical bills were unauthenticated. However, the parties entered into a stipulation concerning the medical records and bills at the start of trial. A plaintiffs stipulation has the effect of a judicial admission or confession and binds all parties and the court. Miller v. LAMMICO, 07-1352 (La.1/16/08), 973 So.2d 693, 709. Having stipulated to the medical bills at trial, Brothers Avondale cannot challenge them on appeal.

In brief, Ms. Blair alleges that the trial court made a calculation error in its award of damages, and she requests that this Court recalculate the amount of special damages owed. However, because Ms. Blair did not appeal or file an answer to the appeal, she is not entitled to any relief. This Court cannot modify the judgment because to do so would result in a modification in favor of the non-appealing party, contrary to Louisiana law. La. C.C.P. art. 2133; La Louisiane Bakery Co. Ltd. v. Lafayette Ins. Co., 09-825 (La.App. 5 Cir. 2/8/11), 61 So.3d 17, 31, writ denied, 11-0493 (La.4/25/11), 62 So.3d 95.

Brothers Avondale next argues that the trial court erred in failing to limit the special damage award to the amount of Ms. Blair’s Medicaid lien. They allege that .the remaining medical bills awarded to plaintiff are “write-off’ amounts to which Ms. Blair is not entitled, citing Bozeman v. State, 03-1016 (La.7/2/04), 879 So.2d 692.

“A party who asserts that an obligation is null, or that it has been modified or extinguished, must prove the facts or acts giving rise to the nullity, modification, or extinction.” La. C.C. art. 1831. Brothers Avondale presented no evidence to show that the medical bills introduced into evidence were submitted to Medicaid or written off by Medicaid. We therefore find no merit to Brothers Avondale’s allegation that the trial court erred in its assessment of special damages.

LIABILITY AND COMPARATIVE FAULT

In their last two allegations of error, Brothers Avondale allege that the trial court erred in finding that plaintiff satisfied her burden of proving the essential elements as required by La. R.S. 9:2800.6. Brothers Avondale further allege that the trial court erred in failing to assess comparative fault to plaintiff.

17Appellate courts review factual findings utilizing the manifestly erroneous or clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). One of the basic tenets of the manifest error standard of review is that “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the court of appeal is convinced that had it been the trier of fact, it would have weighed the evidence differently.” Savage v. State Farm Mut. Ins. Co., 09-852 (La.App. 5 Cir. 2/9/10), 33 So.3d 919, 922, citing Rando v. Anco Insulations Inc., 08-1163 (La.5/22/09), 16 So.3d 1065, 1087.

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

Furthermore, “[allocation of fault is a finding of fact and, as with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. An appellate court may only reallocate fault if it finds that the trial court was clearly wrong or manifestly erroneous.” Phipps v. Allstate Ins. Co., 05-651 (La.App. 5 Cir. 2/27/06), 924 So.2d 1081, 1085.

The trial court heard the testimony of the witnesses and saw the videotape of the accident, and it made the following factual findings in its reasons for judgment:

The Court finds that [Brothers] was mopping the floor and the area where the plaintiff, Kenya Blair, slipped, and where the defendant had just mopped. This presented an unreasonable risk of harm to the plaintiff, Kenya Blair and this risk of harm was reasonable (sic) foreseeable. Furthermore, the Court finds that the merchant failed to exercise reasonable care. The Court finds that the “Wet Floor” sign | swas improperly placed. It was not in the aisle and could not be seen from where the plaintiff, Kenya Blair entered the aisle. The Court does not believe that there was a “Wet Floor” sign at the end of the aisle where the plaintiff, Kenya Blair entered the aisle.

Mr. Abdel, the manager, testified that, while mopping, it was Brothers Avondale’s policy to place a “Wet Floor” sign near the entrance of the store, and two more signs in the wet area being mopped. Further, Mr. Abdel testified that at the time of Ms. Blair’s fall, the three signs were placed according to that policy, including a sign in the wet aisle where Ms. Blair slipped and fell. This policy was obviously in place to avoid an unreasonable risk of harm, and in the least, to attempt to alert shoppers.

On the other hand, Ms. Blair testified that there was no sign in the aisle. The trial judge’s finding that there was no “Wet Floor” sign located in the wet aisle, apparently based upon several factors, including Ms. Blair’s testimony, is not an unreasonable conclusion of fact, and is certainly not one which we can conclude to be clearly wrong and therefore reversible.

Mr. Abdel also testified that there were eight to ten surveillance cameras in the store providing eight to ten different views of the store, yet he only retained one of those eight to ten different views. Surely at least one, and perhaps several of those views would have provided a view of the “Wet Floor” sign, had it been in the wet aisle. It is a fair conclusion of fact that the missing camera views were not favorable to the party which erased them. Considering the totality of the circumstances, the factual findings by the trial judge that the “Wet Floor” signs |9were not properly placed as claimed by Mr. Abdel, and that an unreasonable risk of harm existed, were neither unsupported by evidence nor unreasonable.

Although this Court might have decided the issue of liability differently had it been the trier of fact, we do not find that the trial court was clearly wrong in finding that the floor at Brothers Avondale created an unreasonable risk of harm, and that Brothers Avondale failed to exercise reasonable care.

We further conclude that the trial court could have reasonably concluded that Ms. Blair’s failure to notice the “Wet Floor” sign or Jose mopping the front of the store did not contribute to her fall in the center aisle. Accordingly, we find no manifest error in the trial court’s judgment insofar as it does not assess any percentage of fault to Ms. Blair.

CONCLUSION

For the above discussed reasons, the judgment of the trial court in favor of Kenya Blair is amended as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of the plaintiff, Kenya Blair and against the defendants, Brothers Avondale, L.L.C., Brothers Food Mart # 128, Brothers Food Mart, and James River Insurance Company in the amount of Eighteen Thousand, One Hundred Thirty-Eight Dollars and 17/100 ($18,138.17), plus legal interest from the date of judicial demand until paid and all costs of these proceedings. This judgment is hereby made executory.

As amended, the judgment is affirmed. Costs are assessed against defendants/appellants, Brothers Avondale, L.L.C. d/b/a Brothers Food Mart # 128 d/b/a Brothers Food Mart, and James River Insurance Company.

AFFIRMED AS AMENDED.

      . When this suit was filed, Ms. Blair was seventeen years old, and her mother instituted this suit on her behalf. At the time of trial, Ms. Blair had reached the age of eighteen, and she was substituted as plaintiff.

      . The initial petition incorrectly named defendants as Brothers Lapalco, L.L.C. d/b/a Brothers Food Mart # 128 d/b/a Brothers Food Mart and its insurer James River Insurance Company. Brothers Avondale, L.L.C. d/b/a Brothers Food Mart # 128 d/b/a Brothers Food Mart was added by plaintiff’s supplemental and amending petition.

      . While adherence to its policy could have resulted in a different verdict on liability, we do not base our decision in whole or in part for Brothers Avondale’s failure to do so.

      . We further note that there is a legal presumption that evidence that a litigant fails to produce is detrimental to his case, unless the failure to produce the evidence is adequately explained. Everhardt v. Louisiana Dep’t of Transp. & Dev., 07-0981 (La.App. 4 Cir. 2/20/08), 978 So.2d 1036, 1044.


author: HANS J. LILJEBERG, Judge.

text:
    Christopher MARENGO & Cherie Marengo v. Charles HARDING, Old Republic Insurance Company, Georgia Armstrong, and State Farm Fire and Casualty Insurance Company.
    No. 13-CA-47.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.
    Anthony S. Maska, Attorney at Law, Covington, LA, for Plaintiff/Appellant.
    Perrier & Lacoste, Guy D. Perrier, Gerald J. Dragna, Eric Winder Sella, Attorneys at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

12Plaintiffs, Christopher and Cherie Mar-engo, appeal a summary judgment granted in favor of defendants, Charles Harding and Old Republic Insurance Company (“Old Republic”). For the following reasons, we reverse the summary judgment and remand this case for further proceedings.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on October 14, 2009. According to Mr. Marengo, he was operating a Ford F350 northbound on Distributor’s Row, and he stopped at a stop sign at the intersection of Mounes Street and Distributor’s Row in Jefferson Parish. While Mr. Marengo was stopped at the stop sign, a GMC Savana driven by Charles Harding and traveling eastbound on Mounes Street collided in the intersection with a BMW 740 driven by Georgia Armstrong and traveling southbound on Distributor’s Row. Mr. Marengo asserts that the collision forced Ms. Armstrong’s vehicle into the driver’s side door of his vehicle, causing him to suffer personal injuries and property damage.

On October 4, 2010, Mr. Marengo and his wife, Cherie, filed suit against Mr. Harding, Old Republic as Mr. Harding’s insurer, Ms. Armstrong, and State Farm Fire and Casualty Insurance Company (“State Farm”) as Ms. Armstrong’s insurer. The Marengos assert that both Mr. Harding and Ms. Armstrong were negligent and caused the accident, and that the defendants are liable for the pdamages sustained by the Marengos as a result of the accident. Plaintiffs later filed a supplemental and amending petition adding Allstate Insurance Company (“Allstate”) as a defendant and asserting that Allstate is an insurer of Ms. Armstrong.

Georgia Armstrong and State Farm answered the petition, asserting that Ms. Armstrong was not at fault and that the accident was caused in whole or in part by the negligence of Charles Harding. Charles Harding and Old Republic filed their answer to the petition, claiming that Mr. Harding was not at fault and that the accident was caused solely by the negligence of Ms. Armstrong.

On August 15, 2012, Mr. Harding and Old Republic filed a motion for summary judgment, contending that they are entitled to judgment as a matter of law and dismissal of plaintiffs’ claims against them because plaintiffs cannot show that Mr. Harding was at fault for the accident. Mr. Harding and Old Republic argue that the deposition testimony of Mr. Harding, Ms. Armstrong, and Mr. Marengo establish that Ms. Armstrong was solely at fault for the accident and that the Marengos cannot establish any liability on the part of Mr. Harding. The deposition testimony relied on was attached to the motion for summary judgment.

The Marengos filed an opposition to this motion, asserting that genuine issues of material fact pertaining to the circumstances of the collision preclude summary judgment. Specifically, they claim that the parties disagree as to whether heavy rain affecting visibility and driving conditions began before or after the subject accident, whether Mr. Harding was speeding, and whether Mr. Harding operated his vehicle in negligent manner and/or could have avoided the accident. The Marengos also attached deposition testimony to their opposition memorandum.

pOn October 3, 2012, the motion for summary judgment came for hearing before the trial judge. The hearing consisted entirely of oral argument; no evidence was officially offered or introduced. After listening to arguments of counsel, the trial judge took the matter under advisement. On October 10, 2012, the trial judge rendered a judgment granting the motion for summary judgment filed by Charles Harding and Old Republic and dismissing plaintiffs’ claims against them. The Mar-engos appeal this judgment.

LAW AND DISCUSSION

On appeal, the Marengos argue that the trial court erred by granting the motion for summary judgment, and they set forth three assignments of error. In their first assignment of error, the Marengos contend that summary judgment was improperly granted where no evidence in support of the motion was formally introduced into the record during the hearing. In response, Mr. Harding and Old Republic assert that they were not required to formally offer and introduce them exhibits, because the longstanding jurisprudence of this Court confirms that documentary evidence specifically listed in LSA-C.C.P. art. 966(B) must only be filed and attached to the motion for summary judgment in order to be considered by the trial court.

Although there is ample jurisprudence from previous years providing that evidence listed in LSA-C.C.P. art. 966(B) and attached to a motion for summary judgment may be considered by the trial court, LSA-C.C.P. art. 966 was amended by Acts 2012, No. 257, § 1, and Acts 2012, No. 741, § 1, with an effective date of August 15, 2012. Prior to these amendments, LSA-C.C.P. art. 966(B) provided, in pertinent part:

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

The words “on file” were deleted by the 2012 amendments. Additionally, the amendments added a second paragraph to LSA-C.C.P. 966(E), providing:

(2) Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion.

As of August 15, 2012, the effective date of the 2012 amendments, LSA-C.C.P. art. 966 mandates that only evidence formally admitted into evidence during the summary judgment hearing can be considered by the trial court. Evidence physically attached to the motion or placed in the record cannot be considered unless it is properly introduced and admitted into evidence at the hearing.

In the present case, the Marengos filed suit claiming that both Mr. Harding and Ms. Armstrong were at fault for the accident. Ms. Armstrong answered, arguing that Mr. Harding was at least partially at fault, and Mr. Harding answered claiming that Ms. Armstrong was solely at fault. In support of their motion for summary judgment, Mr. Harding and Old Republic attached deposition testimony in support of their position that Mr. Harding was free from fault in the accident. The Marengos also submitted deposition testimony in opposition to the motion. However, neither the deposition testimony nor any other evidence was formally introduced and admitted at the hearing. Accordingly, in our de novo review of the motion for summary judgment on appeal, we cannot consider the deposition testimony attached to the motion for summary judgment or the opposition.

|Jt 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, 750; Nuccio v. Robert, 99-1327, p. 6 (La.App. 5 Cir. 4/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544. A summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 195. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, 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. LSA-C.C.P. art. 966(B)(2).

In our de novo review of the motion for summary judgment in the present case, without any evidence in support of Mr. Harding and Old Republic’s assertions, we find that there are genuine issues of material fact that preclude summary judgment at this time. Accordingly, we reverse the summary judgment granted in favor of Mr. Harding and Old Republic and remand this case for further proceedings consistent with this opinion.

Considering our ruling reversing the summary judgment in this matter, we pre-termit discussion of the remaining two assignments of error set forth by the Maren-gos.

DECREE

For the foregoing reasons, we reverse the summary judgment granted in favor of Charles Harding and Old Republic, and we remand the case to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . After the motion for summary judgment hearing, the Marengos filed a motion to dismiss Ms. Armstrong and State Farm from the lawsuit because their claims against them had been compromised and settled, but reserving their right to proceed against Mr. Harding, Old Republic and Allstate. The trial judge granted this motion to dismiss on October 5, 2012.