text:
    STATE Of Louisiana v. Isiah L. SKINNER.
    No. 12-KA-711.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2013.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Gretna, LA, for Appellee, the State of Louisiana.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, Isiah L. Skinner.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

Ijn this case, defendant’s appointed appellate counsel has filed an Anders brief on defendant’s behalf, asserting there is no basis for a non-frivolous appeal. For the reasons which follow, we affirm defendant’s conviction and sentence.

Facts and Procedural History

In this case, defendant pled guilty without proceeding to trial. Thus, the facts were gleaned from the guilty plea colloquy. Defendant testified that, on March 29, 2010, Sean Johnson drove defendant to Robinson Avenue, where the two men observed the victim and drove toward him. Then, using Sean Johnson’s firearm, defendant shot at the victim, firing until the clip was empty. Defendant admitted that he killed Ivan Boudreaux using Sean Johnson’s gun.

On July 22, 2010, a Jefferson Parish Grand Jury indicted defendant, Isiah L. Skinner, on one count of second degree murder, a violation of La. R.S. 14:30.1. On February 28, 2012, the Jefferson Parish District Attorney amended the bill of information to reduce defendant’s charge to one count of manslaughter, a violation Rof La. R.S. 14:31. On that same date, defendant entered a plea of guilty as charged to the amended bill of information.

Likewise, on February 28, 2012, pursuant to a plea agreement set forth in the record, the trial judge sentenced defendant to 40 years at hard labor, to run consecutively to his sentences in an unrelated matter, with credit for time served. On May 24, 2012, defendant filed an application for post-conviction relief seeking an out-of-time appeal, which was granted on July 2, 2012. This appeal follows.

Discussion

Under the procedure set forth by our brethren on the Fourth Circuit in State v. Benjamin, which was sanctioned in State v. Mouton and adopted by this Court in State v. Bradford, appointed appellate counsel has filed a brief pursuant to Anders v. California, supra, and State v. Jyles, asserting that she 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.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in. the record that might arguably support the appeal”’ so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court |4“in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.”

In State v. Jyles, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.”

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing legal points identified by the court, or grant the motion and appoint substitute appellate counsel.

Defendant’s appellate counsel asserts that, after a conscientious and thorough review of the record, she could find no non-frivolous issues to raise on appeal. She sets forth a procedural history of the case, but does not provide a statement of the facts, stating incorrectly that the facts were not revealed in the ^record. As noted above, defendant himself provided the facts surrounding the victim’s death during the guilty plea colloquy. Appellate counsel further states that there were no motions heard that would provide sufficient facts surrounding the arrest.

Although appellate counsel submits that she can find no ruling of the trial court that arguably supports the appeal, she reports that she considered whether to raise an issue of excessive sentence but was compelled to conclude that such a claim would be frivolous. She contends that defendant was adequately informed by the plea form that he faced a sentence up to 40 years and would be sentenced to 40 years. She also notes that defendant was informed as to the underlying sentence in the plea colloquy. She concludes that the 40-year sentence would not be regarded as constitutionally excessive.

Appellate counsel has filed a motion to withdraw as attorney of record, which states she has made a conscientious and thorough review of the record and can find no non-frivolous issues to raise on appeal. She contends that her brief is in compliance with Anders and that she has notified defendant of the filing of her motion and advised him of his right to file a pro se brief in this appeal.

Additionally, this Court sent defendant a certified letter on October 16, 2012 informing him that an Anders brief had been filed and that he had until November 14, 2012, to file a pro se supplemental brief. When defendant sought leave to file a supplemental brief, this Court provided defendant with a copy of the appellate record in this matter and extended his briefing deadline to November 25, 2012. As of the date of this opinion, defendant has not filed a supplemental brief in this matter.

The State responds that appellate counsel has shown a conscientious and thorough review and recitation of the procedural history of the case, and has cast |fian advocate’s eye over the record and determined there were no significant non-frivolous issues upon which to base an appeal. The State agrees that the bill of information properly charged defendant; that defendant was present for every crucial stage of the proceedings; that defendant’s plea was knowing, intelligent, voluntary, and valid; and, finally, that defendant’s sentence was not excessive. The State acknowledges that counsel has conformed with and followed the procedures set forth in Anders and Jyles and suggests that her request to withdraw should be granted. The State requests that this Court affirm defendant’s conviction and sentence.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. First, the bill of information in this case properly charged defendant and plainly and concisely states the essential facts constituting the offenses charged. It also sufficiently identifies defendant and the crimes charged.

Next, the minute entries and commitment reflect that defendant appeared at each stage of the proceedings against him. He attended his arraignment, his motion hearings, his guilty plea proceedings, and his sentencing.

Further, defendant pled guilty to one count in the amended bill of information. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defendants and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing.

| -Additionally, several pre-trial motions were filed in this case. The record reflects rulings on all of these pre-trial motions. Further, no rulings were preserved for appeal under State v. Crosby, 338 So.2d 584 (La.1976).

Next, we find that the record does not reveal any irregularities in defendant’s guilty pleas. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept.

During the guilty plea proceeding, defendant was informed in writing in the waiver of rights form and verbally by the trial judge that he was charged with and pleading guilty to one count of manslaughter. Further, defendant was informed of his Boykin rights — his right to a judge or jury trial, to confrontation, and to remain silent — in writing on the waiver of rights form and verbally by the trial judge. Defendant indicated in writing and verbally that he understood that he was waiving these rights.

During this proceeding, defendant stated that he had not been forced, coerced, or threatened to enter a guilty plea. Defendant indicated that he understood the possible legal consequences of pleading guilty, and wished to plead guilty at that time. He also indicated that he understood that by pleading guilty that a future felony conviction could result in the sentence being enhanced. Defendant was told during the colloquy and by means of the waiver of rights form of the sentencing range that he faced. He was also informed of the sentence that |8would be imposed if his guilty plea was accepted. The judge accepted his guilty plea as knowingly, intelligently, freely, and voluntarily made.

Further, defendant’s sentence was imposed pursuant to a plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his- sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea.

Further, defendant’s sentence falls within the sentencing range prescribed by La. R.S. 14:31. Defendant pled guilty to manslaughter. La. R.S. 14:31 provides, “Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.” The trial judge sentenced defendant to 40 years “at hard labor in the custody of the Department of Corrections of the State of Louisiana.”

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we affirm defendant’s conviction and sentence. Further, appellate counsel’s motion to withdraw as attorney of record is granted.

Error patent discussion

In the Anders brief, appellate counsel requests an error patent review, which this Court routinely performs in accordance with La.C.Cr.P. art. 920. Our review reveals no errors patent requiring correction in this case.

AFFIRMED

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The bill of information also charged co-defendant, Sean A. Johnson, with second degree murder, a violation of La. R.S. 14:30.1 (Count 1); convicted felon with a weapon, a violation of La. R.S 14:91.1 (Count 2), and; aggravated criminal damage to property, a violation of La. R.S. 14:55 (Count 3).

      . In case number 10-1403, defendant was sentenced for possession with the intent to distribute marijuana to five years at hard labor, with three years suspended; and, for each of the four burglary counts, to one year each, to run consecutively, with credit for time served.

      . 573 So.2d 528, 530 (La.App. 4 Cir.1990).

      . 95-0981 (La.4/28/95); 653 So.2d 1176, 1177 (per curiam).

      . 95-929 (La.App. 5 Cir. 6/25/96); 676 So.2d 1108, 1110.

      . 96-2669 (La. 12/12/97); 704 So.2d 241, 242 (per curiam).

      . The United States Supreme Court reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

      . Jyles, supra at 241.

        .Id.

      . Bradford, supra at 1110.

      . Id.

      . See generally, La.C.Cr.P. art. 464-66.

      . State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06); 926 So.2d 662, 664.

      . State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97); 704 So.2d 300, 304.

      . State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06); 924 So.2d 1120, 1124.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . McCoil, supra.

      . See State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05); 916 So.2d 1171, 1173.

      . The trial judge imposed defendant's sentence to run consecutively to sentences imposed on another unrelated matter. See, La.C.Cr.P. art. 883.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of A.V.P.
    No. 13-CA-57.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 29, 2013.

      Nelson Bowman, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

|2The minor in this proceeding filed a petition in this Court seeking an order authorizing an abortion without parental approval or notification, pursuant to La. R.S. 40:1299.35.5. For the reasons that follow, we deny her petition.

The minor, A.V.P., filed her application for an order authorizing an abortion without parental knowledge or consent in the Juvenile Court on January 24, 2013. Pursuant to the Children’s Code, counsel was appointed to represent her in the hearing, which was held on that same day. Following the hearing, the Juvenile Court denied her petition. Shortly thereafter, A.V.P. filed a motion for appeal, which was granted by the trial judge on January 25, 2013 at 10:00 A.M., according to the time stamp of the Juvenile Court. Trial de novo in this Court was held on January 25, 2013 at 1:30 P.M. The trial was held in chambers with A.V.P., her appointed attorney, and a court repoi'ter.

A.V.P. testified that she was 17 years old, and would be 18 in 3 months. A.Y.P. testified that she resides with her mother, in an apartment located in a | ¡/‘good neighborhood” of Metairie. A.V.P. stated that her mother provides her basic necessities, but she pays for her car and insurance (the car is in her mother’s name), clothing and toiletries, and some food.

A.V.P. stated that she is currently in the 12th grade in high school, where she is an honor student, and she also works at a pizza restaurant 35-40 hours per week. She has been accepted to college, and is eligible for a TOPS Plus scholarship.

In response to questioning by the Court, A.V.P. expressed concern that she would lose her TOPS scholarship if she were to carry her child to term. A.Y.P. also expressed concern about the stress involved in finishing high school while pregnant, but stated that she would push herself to graduate regardless. AY.P. stated that she was physically and mentally healthy, and there were no medical contraindications to her having the child, and she does not fear going through childbirth. She had not obtained much information on prenatal care, but had done some research on housing and daycare for college students with children. AY.P. has some concerns about the medical expenses of having the child, but she had not really looked into it.

A.V.P. further indicated that she and the father of her child had been a couple for eight months, but the relationship ended abruptly when she informed him she was pregnant. The Court did not elicit the name of the father, but A.V.P. indicated that he was 19 years old, and had obtained his G.E.D. He had been working, but had recently lost his job. A.V.P. stated unconvincingly that their breakup was because of his frequent use of marijuana, yet the breakup occurred only when she told him she was pregnant. She stated that he told her to do what she thought was best, but to leave him out of it. Further, he said that he did not want anything to do with the baby if she had it, and wants nothing to do with her “as of now.” Since then, A.V.P. has remained in at least periodic contact with him, | informing him, for example, of her clinic appointment(s) and of the hearing in Juvenile Court, which she told him he should attend, but “he refused to show up.”

A.V.P. stated that she did not have a good relationship with her mother, and she believed her mother would throw her out of the house if she announced she was pregnant. A.V.P. related that four years earlier her older sister became pregnant when her sister was 16 and A.V.P. was 14. At that time, they were living near Chicago. A.V.P. stated that when her sister told her mother, her mother threw her out of the house, and the sister went to live in a group home. The sister intended on keeping the child, but later miscarried. A.V.P. stated that her mother said “terrible things” about her sister at that time. Subsequently, A.V.P. moved with her mother to Louisiana. The sister remained in the Chicago area and visits once a year. A.V.P. stated that her sister and her mother do not speak when the sister visits. A.V.P. stated that she is very close to her sister, and has told her of the pregnancy. Her sister was upset, but agreed that abortion was the best option.

In describing her relationship with her mother, A.V.P. stated that her mother only provided her with the necessities of life, and that they would occasionally go for days without seeing each other because of their work schedules. A.V.P. stated that although her mother was the registered owner of her car, she pays the car note and expenses. A.V.P. was very concerned that her mother would take the car away from her if she found out that she was pregnant.

A.V.P. stated that her mother had a master’s degree and maintained full time employment. A.V.P. also stated that her mother was “emotionally inept” and that she drank too much, yet she went to work every morning, was apparently good at her job, and everyone there seemed to like her mother. Her mother had never been arrested, investigated, or undergone counseling, and is not physically abusive. A.V.P. also stated that her mother is not religious or bigoted.

| fiA.V.P. stated that she had never discussed the possibility of her having children with her mother, and therefore she did not know how her mother would feel about being a grandmother, but she thought her mother didn’t like young children much. She further opined that she thought her mother would be against abortion. A.V.P. believes her mother would also reject the option of adoption, and that her mother would feel that it is A.V.P.’s responsibility to take care of her child. A.V.P. stated that she believed her mother would be angry if she found out that she was sexually active at her age and that she was pregnant. A.V.P. also stated that she believed her mother would be angry if she learned of the pregnancy, or that A.V.P. had had an abortion, from a third party, such as one of A.V.P.’s friends. A.V.P. also stated that she intended to inform her mother that she had had an abortion in the future after she was living on her own.

A.V.P. stated that she has received counseling at the clinic that would perform the abortion. She said that the physician who would perform the procedure told her about alternatives. The clinic also instructed her of the procedures for a judicial bypass of parental permission.

A.V.P. stated that she did not seek counseling outside of what was offered at the abortion clinic. She had researched the procedure and the possible ramifications on the Internet. A.V.P. also had told some of her friends she was pregnant and what she intended to do. She said that her friends were a good support group for her.

A.V.P. stated that she did not know where her father was, and that she had not spoken to him in 3 years. She had not seen him in almost 13 years, since her fifth birthday.

A.V.P. stated that she had not had any discussions concerning the adoption process, parent selection or “open adoptions.” A.V.P. indicated she is opposed to | fiadoptions, and stated that she believes that giving a child for adoption is “immoral” because she had heard stories of adopted children being abused, sexually molested or killed. A.V.P. also stated that intrafamily adoption was out of the question, because there was no family member interested, although she also stated that she had not told anyone or discussed the issue with anyone.

A.V.P. stated that abortion had been her first choice because she did not think she was emotionally or financially ready to care for a child. She also stated one reason she did not tell her mother was she believes her mother would make her have the child. However, she also stated that if this Court were to involve her mother, she believes her mother would acquiesce to the abortion, to “look like an understanding parent.” On several occasions A.V.P. was inconsistent in this regard.

La. R.S. 40:1299.35.5 requires the Court of Appeal to base its decision after trial de novo on the criteria provided in paragraphs (4), (5), and (6) of subsection (B) and issue its final judgment and order within forty-eight hours of its hearing.

According to paragraph (4), the court shall issue an order authorizing the minor to act on the matter without parental consultation or consent if it finds, by clear and convincing evidence and using “reasoned judgment and evidentiary evaluation,” that the minor is sufficiently mature and well enough informed to make the decision concerning the abortion on her own. In re L.P., 11-429, (La.App. 5 Cir. 4/28/11), 64 So.3d 850, 851. According to paragraph (5), “if the court finds that the minor is not sufficiently mature and well enough informed to make a decision intelligently among the alternatives, the court shall decide whether or not it would be in the best interest of the minor to notify her parents or guardian of the proceedings.”

l7Clear and convincing evidence, in general, means that facts must be proven to a greater degree than by a mere preponderance of the evidence, but less than beyond a reasonable doubt. Louisiana State Bar Association v. Edwins, 329 So.2d 437, 442 (La.1976); In re Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714.

In this case, the only testimony presented was that of A.V.P. herself. We have carefully considered her testimony and find that A.V.P. did not carry her burden of proof as required by the statute. A.V.P. testified that she was about to graduate from high school and had already been accepted to college. She expressed concern that she would lose her scholarship, but did not offer any proof or reasonable explanation as to why this would happen other than that she might no longer be considered an “outstanding citizen.” A.V.P. also admitted that she had investigated potential resources for attending college while pregnant or after the child is born. A.V.P. testified that she was counseled by the personnel at the abortion clinic; however she offered no testimony or other evidence as to the substance of that counseling, and no supporting evidence to show that she had been counseled on the various options open to her, or on the effects and consequences of any avenue she might choose. She did state that she had been counseled by the clinic on how to avoid parental approval through the courts. A.V.P. testified that much of her knowledge came from her own investigations and the Internet.

A.V.P. testified of a strained and distant relationship with her mother, but that her mother does care for her well-being. A.V.P. believed her mother would be un-supportive regardless of her choice with regard to the pregnancy. A.V.P. admitted that her opinion of her mother’s reaction is based primarily on her mother’s reaction four years earlier when her older sister became pregnant at the much younger age of 16 and chose to have her child.

|8A.V.P. also gave inconsistent answers about how her mother would feel and react to the prospect of her having an abortion. At various points in her testimony she indicated that her mother would probably be against it; that she may be ok with it; and that she would very probably consent to it. Her mother would probably become angry, mainly because she had been irresponsible in being sexually active and becoming pregnant. It is obvious that while the news of the pregnancy and the possibility of abortion would upset her mother, her mother would not be closed-minded about her options. Furthermore, while her mother was portrayed in less than ideal terms, it is clear that A.V.P. has grown to be a responsible and intelligent young woman while in her mother’s care.

While this Court finds that A.V.P. presented herself as a responsible and mature young lady for her age, we are not convinced that she is sufficiently mature and well-informed enough to make such a major decision on her own, or with the limited wisdom and support of her peers, no matter how well-intended they may be. A.V.P.’s beliefs that she would not be able to place the child for adoption with family, or that she would lose her scholarship to attend college were made on assumption, and without investigation. A.V.P.’s conclusions as to her mother’s reaction likewise were based on speculation, and not on any current discussions with her mother. We believe that A.V.P. would benefit from consulting with her mother, as she stated that her mother is aware of her current achievements and future plans. We believe that this decision is too important to be made without the knowledge and advice of A.V.P.’s mother primarily to avoid upsetting her or incurring her anger. Presumably, A.V.P.’s mother cares for her and wants her to do what is best for her.

Nevertheless, we find that it would not be in the best interest of A.V.P. for this Court to formally notify her mother of the proceedings, believing that A.V.P. |9should be given the opportunity to reconsider her decision concerning her mother’s involvement.

For the reasons stated above, we find that A.V.P. has not proven by clear and convincing evidence that an order of this Court authorizing an abortion without parental knowledge and advice is in her best interest. Accordingly, we deny A.V.P.’s petition for an abortion -without parental knowledge and consent pursuant to La. R.S. 40:1299.35.5.

PETITION DENIED


author: JUDE G. GRAVOIS, Judge.

text:
    Samuel BANKS, Ernest Blancher, Pearlin Brent, Walter Collins, Arthur Domingue, Emily Bergeron, Valcour Dominic, Sr., David Fairman, Jonnie Gibson, Wilbert Hampton, Blanche Jenkins, Ernest Lagrange, Jr., Richard Mack, Sr., James Pierre, Sr., Laura Robertson, Audrey Sanders, Johnny Scott, Audury Sharper, Dennis Sharper, Alfred Taylor, Sr., Clara Taylor, Virginia Thompson, Sarah Veal, Percy Videau and Archie Wilson v. PARISH OF JEFFERSON and B & K Construction Company, Inc.
    Nos. 12-CA-215, 12-CA-488.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2013.

      Hilary G. Gaudin, Elizabeth M. Gaudin, James E. Shields, Sr., Attorneys at Law, Gretna, LA, Bruce C. Dean, Attorney at Law, Metairie, LA, for Plaintiffs/Appellants, Samuel Banks, et al.

      Thomas P. Anzelmo, Sr., Kyle P. Kirsch, Eugene T. Rhee, Attorneys at Law, Me-tairie, LA, for Defendant/Appellee, Parish of Jefferson.
    Leon A; Aucoin, Attorney at Law, Cov-ington, LA, for Defendant/Appellee, B & K Construction Company, Inc.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

| ¡¡Plaintiffs filed this lawsuit in 2000 against the Parish of Jefferson (“the Parish”) and B & K Construction Company, Inc. (“B & K”), alleging that their homes sustained damages in 1998 and 1999 as a result of construction activities that had been conducted on the Gardere Canal on the West Bank of Jefferson Parish. Pertinent to this appeal, in January of 2010, the Parish filed a motion for summary judgment, claiming immunity from suit pursuant to La. R.S. 9:2798.1, which confers immunity on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers or duties. B & K also filed a motion for summary judgment, claiming immunity pursuant to La. R.S. 9:2771 (statutory contractor immunity) and to jurisprudentially created contractor immunity (government contractor immunity). In separate judgments, the trial court granted both motions for summary judgment, dismissing both defendants from this proceeding. Plaintiffs |4filed separate appeals of these summary judgments. This Court consolidated the appeals.

Plaintiffs also filed a motion for leave to file their fifth amending and supplemental petition. The Parish responded by filing a motion to strike this pleading. In a judgment dated November 7, 2011, the trial court denied plaintiffs’ motion for leave and granted the Parish’s motion to strike. Plaintiffs also appeal this judgment.

For the reasons that follow, we affirm the trial court’s grant of summary judgment in favor of the Parish, affirm the trial court’s denial of plaintiffs’ motion for leave to file their fifth amending and supplemental petition and its granting of the Parish’s motion to strike this pleading, reverse the trial court’s grant of summary judgment in favor of B & K, and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On January 16,1997, the Parish and the United States Army Corps of Engineers (“the Corps”) entered into a Project Cooperation Agreement (“the Agreement”) concerning construction of a portion of the Southeast Louisiana Flood Control Project (“the SELA Project”) in Jefferson Parish on the Gardere Canal (hereafter “the Gardere Canal Project” or “the Project”). Pursuant to the Agreement, the United States provided 75% of the Gardere Canal Project’s costs, with the Parish providing the remaining 25% of the Project’s costs. The final plans and specifications for the Gardere Canal Project were prepared, reviewed and accepted in accordance with the standards of the Corps. Once the plans and ^specifications for the Project were finalized, B & K entered into a contract with the Corps as general contractor for construction of the drainage improvements on the Gardere Canal.

Plaintiffs filed this lawsuit on February 28, 2000 against the Parish and B & K, alleging that the Parish and B & K were liable for damages which occurred to their homes which are located in Harvey, Louisiana near the Gardere Canal. Plaintiffs allege that during 1998 and 1999, the Parish and B & K undertook construction work on the Gardere Canal in close proximity to their homes, and that substantial damage was done to their homes, including a pulling away of walls from the concrete slabs upon which their homes were built, numerous cracks in their homes, and damages to their garages and swimming pools. Plaintiffs specifically alleged that the Parish and B & K were grossly negligent in the following ways:

a. Causing vibrations, soil subsidence, improper weight bearing and placement of heavy equipment and removal of sheet pilings;
b. Failing to take proper and necessary safe guards to insure that plaintiffs houses would not be damaged by the construction work undertaken in the Gardere Canal;
c. Failing to properly inspect and test whether plaintiffs’ houses could withstand the construction work being undertaken by the defendants without serious and irreparable damages; and
d. In other respects that will be shown at the trial on this matter.

APPEAL NO. 12-CA-215

Summary Judgment in favor of the Parish

On January 28, 2010, the Parish filed the motion for summary judgment that is the subject of the instant appeal. In its motion, the Parish claimed the affirmative defense of discretionary immunity pursuant to La. R.S. 9:2798.1(B). | ^Plaintiffs filed several oppositional memoranda and the Parish filed several reply memoranda. The matter was submitted to the trial court on briefs. On November 7, 2011, the trial court rendered judgment, granting summary judgment in favor of the Parish. In its reasons for judgment, the trial court first found that the Parish was a public entity as contemplated by the statute. The court then found that plaintiffs had failed to introduce or submit any evidence that their damages had been caused by any operational negligence on the part of the Parish.

On appeal, plaintiffs argue that the summary judgment in favor of the Parish should be reversed because the Parish failed to prove entitlement of the discretionary immunity defense provided by La. R.S. 9:2798.1.

The Parish responds that the trial court’s decision is correct because the Parish’s decision to enter into the Agreement with the Corps was clearly discretionary or grounded in policy, thus entitling it to assert the discretionary immunity defense. It argues that under the Agreement, the Parish had no responsibility for any construction or operations that were causally related to plaintiffs’ alleged damages, and that it committed no operational negligence. The Parish argues that its responsibility under the Agreement to monitor vibrations during construction was fully performed when it paid a testing contractor to perform that service and when it furnished its vibration monitoring reports to the Corps and to B & K. The Parish argues that its duty to monitor the vibrations and to report such to the Corps/B & K, and to investigate damage claims, did not create any duty in favor of plaintiffs to confer liability on the Parish for plaintiffs’ damages.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844. An appellate court must ask the same questions as does the trial Ivcourt in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action (subject to certain exceptions not pertinent herein). La. C.C.P. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. Id.

Under La. C.C.P. art. 966(C)(2):

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to 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, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

The Parish’s claim of discretionary immunity is based upon La. R.S. 9:2798.1, which states, in pertinent part:

A. As used in this Section, “public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

IsRecently, the Fourth Circuit explained the application of the statutory doctrine of discretionary immunity under La. R.S. 9:2798.1, to-wit:

The Louisiana Supreme Court established a two-step test for courts to follow when determining whether the immunity applies. See Simeon v. Doe, 618 So.2d 848, 852-53 (La.1993). A court must first determine whether a statute, regulation, or policy requires the governmental agency to follow a particular course of action. If there is such a requirement, then there is no choice or discretion, and the immunity does not apply. If, however, the governmental entity has a choice about whether to undertake the activity, then the entity will be protected by the immunity only if the choice is grounded in “social, economic, or political policy.” Id. The application of this affirmative defense is “a question of fact to be determined through a trial.” Lambert v. Riverboat Gaming Enforcement Div., 96-1856 (La.App. 1 Cir. 12/29/97), 706 So.2d 172, 178. Once a defendant establishes its conduct involves a matter of choice or discretion that is not the end of the inquiry. A court must also consider whether the conduct in question occurred at the “operational level”, or how the entity carried out its policy or decision. The immunity statute does not protect governmental entities against legal fault or negligent conduct at the “operational level”, but only confers immunity for policy decisions, that is decisions based on social, economic, or political concerns. Chaney v. National Railroad Passenger Corp., 583 So.2d 926, 929 (La.App. 1 Cir.1991). As such, once a discretionary decision is made, the government entity is not protected from liability for conduct in carrying out the discretionary decision. Socorro v. Orleans Levee Bd., 561 So.2d 739, 756 (La.App. 4 Cir.1990).

Johnson v. Orleans Parish Sch. Bd.

Plaintiffs argue that whereas the decision of the Parish to participate in the Project might have been discretionary, its obligations under the Agreement, once entered, were not discretionary, and thus, it is not entitled to the discretionary immunity defense to escape liability for its alleged negligence. Plaintiffs argue that under the Agreement, the Parish had affirmative duties to the homeowners along the canal, the breaches of which constituted “operational negligence,” including: (1) the duty to monitor excessive vibrations from pile-driving on the site; (2) the duty to receive reports on excessive vibrations; (3) the duty to notify the contractor if the Parish became aware of excessive vibrations; (4) the duty to | ¡Investigate claims of damages by property owners due to the construction; (5) the duty to forward complaints of such property damages to the Corps; and (6) the duty to pay twenty-five per cent of any damages caused by work on the Project. Plaintiffs argue that their homes were damaged during the Project by excessive vibrations from the driving of steel sheet pilings to construct a temporary retaining wall, the dredging of the canal, the erection of a permanent concrete retaining wall, and the removal of the temporary retaining wall. Plaintiffs allege that the Parish breached its duties under the Agreement by failing to prevent the excessive vibrations, or to remedy or eliminate the excessive vibrations. Plaintiffs argue that the Parish did nothing to prevent or mitigate the damages to their homes, contrary to the Parish’s duties under the Agreement.

In its motion for summary judgment, the Parish pointed out that the United States District Court for the Eastern District of Louisiana dismissed the Corps on the basis of discretionary immunity, accepting the Corps’ argument that its work on the Gardere Canal Project was discretionary and involved policy considerations. The Parish asserted in its motion that its involvement in the Gardere Canal Project likewise involved policy choices that entitled it to discretionary immunity. The Parish argued in its motion that its only involvement in the project was the contribution of certain costs (25% of the cost, with 5% in funds and the remaining 20% in in-kind contributions such as land and materials) and providing initial engineering designs (as part of its in-kind contributions under the Agreement). The Parish asserted that its decision to enter into the Agreement with the Corps and to contribute to its costs through cash, services, and other contributions fell within its discretion and was grounded in public policy.

1 inThe Parish also pointed out that under the Agreement, it had no responsibility for the constructions on the Gardere Canal, other than its approval and limited funding, asserting that co-defendant B & K had the responsibility for performing all of the constructions on the Gardere Canal. The Parish denied that the Agreement conferred upon it any operational responsibility to prevent or mitigate damages to plaintiffs’ homes. It argued that likewise, the existence of a cost-sharing provision between it and the Corps regarding payment for any damages did not confer a duty upon the Parish to these plaintiffs.

The trial court issued reasons for judgment, finding that the Parish was a public entity as contemplated by La. R.S. 9:2798.1, and that the Parish’s decision to enter into the Agreement was a discretionary decision based upon policy considerations. The court also found that the Parish did not commit any operational negligence, as it neither assumed responsibility nor played any role in the construction of the Gardere Canal Project. Its role was limited to approval and funding of the construction. Under the Agreement, the Corps assumed the responsibility for the management and supervision of all work performed on the Project. The court further found that there was no factual or legal basis to support plaintiffs’ contention that the Parish had agreed to assume any duty to compensate plaintiffs for their alleged damages. Accordingly, the court found that the Parish had borne its burden of proof that it was entitled to discretionary immunity provided to public entities by La. R.S. 9:2798.1, and granted the Parish’s motion for summary judgment.

Upon our de novo review, we find no error in the trial court’s findings or conclusions in its grant of summary judgment in favor of the Parish. Plaintiffs allege that the damages to their homes were caused by excessive vibrations resulting from construction activities on the Gardere Canal. The facts are undisputed that the construction activities were actually carried out by B & K and Inits subcontractors, and not by the Parish. The Parish was not responsible under the Agreement for construction or “operational” activities that caused the vibrations, nor has it been shown that the Parish performed such activities. The Parish’s activities were limited to monitoring the vibrations, through a contract with a testing contractor, and reporting the results of the monitoring to B <& K and the Corps. Plaintiffs have alleged that the Parish’s monitoring duties created a duty on the part of the Parish to protect plaintiffs’ property once the excessive vibrations were discovered, but offered no factual support for this conclusion. The Parish’s monitoring duties or the alleged breach thereof did not cause plaintiffs damages, nor did those duties under the Agreement create a duty in favor of plaintiffs.

Plaintiffs’ reliance on Mitter v. St. John the Baptist Parish, 05-375 (La.App. 5 Cir. 12/27/05), 920 So.2d 263, is misplaced. In that case, the court rejected a discretionary immunity defense asserted by St. John the Baptist Parish because it was shown that not only did the Parish make the discretionary decision to provide drainage, the Parish was also responsible for, and had actually performed, the construction work that gave rise to the plaintiffs’ damages. In this case, B & K performed the work (the construction activities) under contract with the Corps; the Parish did not.

Plaintiffs also argue that under the Agreement, upon completion, the Project was to be turned over to the Parish, which would be responsible for operation and maintenance of the canal. Plaintiffs do not allege, however, that the damage to their homes was caused after the Project was turned over to the Parish for operation and maintenance, but rather during the construction phase of the Project prior to that time.

For the foregoing reasons, finding that no genuine issues of material fact exist as to the claims plaintiffs have asserted against the Parish, and that the Parish 11¾⅛ entitled to judgment on its discretionary immunity defense as a matter of law, we affirm the trial court’s grant of summary judgment in favor of the Parish.

Denial of Motion for Leave to file fifth amending and supplemental petition and grant of Motion to Strike

Plaintiffs also argue on appeal that the trial court erred in denying their motion for leave to file their fifth amending and supplemental petition and in granting the Parish’s motion to strike this pleading. Plaintiffs argue that this ruling was an abuse of discretion because they acted in good faith in filing this motion, and because no trial date is set, no prejudice would be caused to defendants. Plaintiffs further argue that in denying their motion for leave to amend, the trial court improperly addressed the merits of plaintiffs’ amended petition, whether the petition stated a cause of action as third-party beneficiaries under an alleged agreement between the Parish and the Corps.

La. C.C.P. art. 1151 provides that after an answer has been filed, the petition and answer may be amended only by leave of court or by written consent of the adverse party. The decision to disallow an amendment under La. C.C.P. art. 1151 is within the sound discretion of the trial judge and that decision should not be disturbed on appeal unless there has been an abuse of the broad discretion vested in the trial court. Salt Domes, Inc. v. Villere Food Group, Inc., 03-0185 (La.App. 4 Cir. 9/24/03), 857 So.2d 1110, 1114. Further, La. C.C.P. art. 964 provides that “[t]he court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.”

In their memorandum attached to their motion for leave to amend, filed on June 21, 2011, plaintiffs contended they “recently” discovered that the Parish had “suppressed” a “hidden contract” between it and the Corps, a document entitled “Standard Operating Procedure” (“the SOP document”), which plaintiffs had obtained from the Corps in a Freedom of Information Act request. Plaintiffs 11Hclaimed that they were third-party beneficiaries under this document because it clearly showed that the Corps and the Parish anticipated that damages would occur to plaintiffs’ property, that they had agreed to pay the damages in a 75/25 per cent split, and that the Parish had the duty thereunder to submit the claims of any property/homeowners within thirty (30) days of notice. Plaintiffs argued that the Parish had breached its duties under the SOP document, committed fraud against plaintiffs, and breached its fiduciary duty to plaintiffs.

The Parish filed a motion to strike, arguing that plaintiffs’ claim that their fifth petition was based upon “recently” discovered information was false. The Parish pointed out that plaintiffs received the SOP document on November 24, 2010, and subsequently attached it to their supplemental opposition brief to the Parish’s motion for summary judgment filed on January 31, 2011 (the Parish’s motion for summary judgment that is the subject of this appeal). The Parish argued that this “information” was specifically brought to the trial court’s attention, which addressed it in a judgment dated April 12, 2011. In that judgment, which granted plaintiffs’ motion to continue the hearing on the Parish’s motion for summary judgment in order for plaintiffs to take depositions of certain former Parish officials, the court limited the focus of the depositions to the merits of the case and the issue of discretionary immunity raised by the Parish’s motion for summary judgment, specifically stating that “any alleged agreement between [the Parish] and [the Corps] regarding the payment of any alleged damages is not relevant to the above-referenced matter.” The Parish further argued that plaintiffs had misrepresented the contents of the document, stating that it was not a contract between the Parish and the Corps, but rather was a policy statement by the Corps regarding the proper credit to be provided to the Parish for the cure of any particular damages caused during the Project.

| uIn denying the motion for leave to amend, the trial court squarely addressed, and disagreed with, plaintiffs’ contentions made in support of their motion for leave to amend that the “newly” discovered SOP document was a contract between the Corps and the Parish made for the third-party benefit of plaintiffs. In its reasons for judgment, the trial court found that “the document in question is a policy or guideline set forth by the Corps providing the method for the Parish to apply for credit in connection with monies paid for damages resulting from construction.” Given that plaintiffs squarely placed the substance of the SOP document before the court in the motion for leave to amend, we find no abuse of the trial court’s discretion in addressing the merits of plaintiffs’ characterization of this document when making its ruling to deny plaintiffs’ motion for leave. Neither do we, upon review, find any abuse of discretion in the ruling itself that this document did not create a duty upon the Parish towards plaintiffs, nor was it a contract of which plaintiffs were third-party beneficiaries.

For the foregoing reasons, we find that the trial court did not abuse its broad discretion in denying plaintiffs’ motion for leave to file their fifth amending and supplemental petition and in granting the Parish’s motion to strike this pleading.

APPEAL NO. 12-CA488

Summary Judgment in favor of B & K

On February 9, 2012, the trial court granted B & K’s motion for summary judgment. In its motion, B & K argued that it was immune from suit under the contractor immunity provisions of La. R.S. 9:2771 (statutory contractor immunity), and also under its claim of immunity as a government contractor pursuant to Boyle v. United Techs. Corp., 487 U.S. 500, 507, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988) (government contractor immunity). In this appeal, plaintiffs argue that the trial court erred in granting B & K’s motion for summary judgment.

| ^Statutory contractor immunity

Plaintiffs first argue that summary judgment was inappropriate herein because B & K failed to prove its affirmative defense of statutory contractor immunity under La. R.S. 9:2771, in particular because: (1) plaintiffs’ damages were caused by B & K’s fault or negligence; (2) B & K’s work was not performed according to the plans or specifications provided to B & K; and (8) the damages were caused by B & K’s failure to follow the plans and specifications, rather than any fault or insufficiency of the plans and specifications.

The contractor immunity statute, La. R.S. 9:2771, provides:

No contractor, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.

A contractor’s immunity to third parties for defects in the work constructed, under the article governing non-liability of a contractor for destruction or deterioration of work, results from proof of compliance to plans and specifications alone. Cormier v. Honiron Corp., 00-446 (La.App. 3 Cir. 9/27/00), 771 So.2d 193. In general, a contractor owes third parties a duty to exercise ordinary care and refrain from creating hazardous conditions in the fulfillment of its contractual obligations; however, a contractor is not the guarantor of the sufficiency of plans and specifications drawn by another, and if it complies with those plans and specifications, it is entitled to statutory immunity. Morgan v. Lafourche Recreation Dist. No. 5, 01-1191 (La.App. 1 Cir. 6/21/02), 822 So.2d 716, writ denied, 2002-1980 (La.10/25/02), 827 So.2d 1156. Under the contractor immunity statute, a contractor cannot rely blindly on plans and specifications, but |lfirather, to avoid liability, the contractor must prove either that the condition created was not hazardous or that it had no justifiable reason to believe that its adherence to the plans and specifications created a hazardous condition. Id.

In support of its motion for summary judgment, B & K filed an affidavit of Stephen B. Hinkamp, the resident engineer for the Corps’ SELA Resident Office, who periodically reviewed the Project for the Corps. Mr. Hinkamp attested, that “[t]o the best of my knowledge, at this time, I am not aware of any incident where it has been shown that property in the vicinity of the subject project has been damaged due to the failure of [B & K] to comply with project plans and specifications.”

B & K also filed an affidavit of W. Blake Andrews, vice president of B & K, who attested that “[B & K] performed all work on this project in accordance with the plans and specifications provided by the Government,” and that “[B & K] was not aware, at any time, of any reasons that would have made the implementation of the plans and specification for this project unsafe or unreasonable.”

Plaintiffs filed an opposition to B & K’s motion for summary judgment. Among the exhibits plaintiffs attached to their opposition memorandum were the Parish’s supplemental responses to plaintiffs’ interrogatories and requests for production of documents, which included the following documents: 1) a purported copy of a letter from Mr. Hinkamp of the Corps to B & K dated March 16, 1999, wherein he memorialized his telephone conversations of February 25,1999 and March 1,1999 with B & K in which he had advised B & K that several of the vibration reports on the subject Project in February of 1999 showed vibrations in excess of that allowed under the contract, reminded B & K of their contractual responsibility to take immediate actions to reduce vibrations, and told B & K that it would be held responsible for any damage which resulted from its failure to comply with these contractual requirements (plaintiffs’ Exhibit “A”); and 2) |17numerous vibration monitoring reports that were collected under the requirements of the B & K’s construction contract with the Corps, which showed over forty instances of vibrations that exceeded the contract specification level of 0.25 inch per second (plaintiffs’ Exhibit “B”). Plaintiffs also attached as an exhibit to their opposition a copy of an extracted portion of B & K’s construction contract with the Corps containing the contract specifications relative to vibrations (Section 7.3), which included the provision that “[vjibrations shall be monitored by others and limited to 0.25 inch per second at all structures including buildings and pools. Exceeding 0.5 of an inch may induce structural damages. The Contractor shall be informed when the vibrations from his operations have exceeded the above limit and the Contractor shall take immediate action to reduce the vibrations to the acceptable limits.” (plaintiffs’ Exhibit “C”).

B & K also filed a supplemental memorandum in support of its motion for summary judgment, attaching thereto the entire depositions of Mr. Andrews, and of Virgil M. Stuart, Jr., who testified as a representative of the Parish, both taken in conjunction with this litigation.

In brief, B & K first argues that the documentary exhibits attached to plaintiffs’ opposition to the motion for summary judgment cannot properly be considered by this Court because such exhibits were not verified or introduced into evidence.

When ruling on a motion for summary judgment, the trial court may consider “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any[,]” presented by the parties in support of or in opposition to the motion; those specifically enumerated documents need not be formally introduced into evidence at the hearing on the motion if they are already “on file” or physically placed into the record prior to the hearing on the motion. La. C.C.P. art. 966(B); Sheffie v. Wal-Mart Louisiana LLC, 11-1038 (La.App. 5 Cir. 5/31/12), 92 So.3d 625, 629. The court may also consider other documents or things which do not fall within the specifically enumerated categories of documents listed in La. C.C.P. art. 966(B). However, 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 such documents into competent summary judgment evidence. Id.

Under the particular facts and circumstances of this case, we find that the exhibits objected to by B & K are properly before us in our de novo review of the summary judgment rendered herein in favor of B & K. First, we note that Mr. Hinkamp’s letter dated March 16, 1999 (plaintiffs’ Exhibit “A”) and the vibration monitoring reports (plaintiffs’ Exhibit “B”) were produced to plaintiffs by the Parish in response to interrogatories and requests for production of documents filed by plaintiffs in this litigation. Further, these documents, along with the extract from B & K’s construction contract with the Corps (plaintiffs’ Exhibit “C”) were significantly mentioned and discussed by Mr. Andrews during the course of his lengthy sworn deposition which was submitted by B & K. As such, these documents submitted by plaintiffs, along with the affidavits and depositions submitted by B & K, are properly before us in our review of the summary judgment in favor of B & K on appeal.

Upon our de novo review of the entire record before us, we first find that the affidavits of Mr. Hinkamp and Mr. Andrews submitted by B & K do not properly and adequately support its motion for summary judgment, such affidavits being conclusory in nature and falling short of bearing B & K’s burden of showing entitlement to summary judgment. Plaintiffs’ petition against B & K charges that their homes were damaged during the Project by excessive vibrations from the driving of steel sheet piling to construct a temporary retaining wall, the dredging of |19the canal, the erection of a permanent concrete retaining wall, and the removal of the temporary retaining wall. Mr. Hinkamp of the Corps merely attested, that “[t]o the best of my knowledge, at this time, I am not aware of any incident where it has been shown that property in the vicinity of the subject project has been damaged due to the failure of [B & K] to comply with project plans and specifications.” (Emphasis added.) We find that this attestation, by a Corps official who was not present on a day-to-day basis and whose duties consisted of periodically reviewing the Project, is conclusory in nature and not sufficient to bear B & K’s burden of proof on summary judgment that there is no genuine issue of material fact regarding whether B & K performed the contract within the plans and specifications.

Likewise, the affidavit of Mr. Andrews is also not sufficient to bear B & K’s burden of proof. Mr. Andrews first attestation, that B & K “performed all work on this project in accordance with the plans and specifications provided by the Government,” is also conclusory in nature and is in the nature of an opinion without any supporting facts. His second attestation, that B & K “was not aware, at any time, of any reasons that would have made the implementation of the plans and specification for this project unsafe or unreasonable,” does not bear on the specific issue presented by plaintiffs. Plaintiffs do not assert that the plans and specifications themselves, if correctly followed by B & K, created a hazardous situation that B & K should have realized; rather, plaintiffs’ case is premised on the assertion that their damages were caused by B & K’s failure to perform in accordance with the plans and specifications of the Project.

B & K’s eonelusory affidavits fail to show that no genuine issues of material fact remain and that it is entitled to judgment as a matter of law.

Further, based on our review of the entirety of Mr. Andrews’ deposition submitted by B & K, we find that genuine issues of material fact remain as to [ gpwhether B & K performed all of its work in accordance with the plans and specifications of the Project. For example, in his deposition, Mr. Andrews admitted that under paragraph 9.7 of B & K’s construction contract with the Corps, the threshold for vibrations was .25 inches per second and that the Corps provided those specifications to B & K. However, when asked whether vibrations in excess of .25 inches per second were measured on forty-eight different occasions during the job, Mr. Andrews responded: “I’m not aware how many occasions but the contract says if we do exceed it we’re supposed to take immediate action to reduce it. That’s what we did.” We find that Mr. Andrews’ answer establishes that a genuine issue of material fact remains as to whether B & K had in fact exceeded the vibration limitations called for in its construction contract with the Corps. Further, when asked whether B & K was informed of the excessive vibrations when they happened, Mr. Andrews indicated that B & K should have been informed, but he could not find any records of being informed of excessive vibrations and did not recall receiving any such reports from the Parish or the Corps. However, Mr. Andrews’ inability to find any records of this nature or to recall receiving any reports of this nature does not exclude the possibility that B & K did in fact receive such records and reports, and thus a genuine issue of material fact remains as to whether B & K did in fact receive such records and reports. Mr. Andrews further admitted in his deposition that B & K’s construction contract with the Corps contained the following provisions: “[t]he contractor shall at his or her own expense remove and replace any damaged structures and roadways caused by the negligence of his/her construction work,” and that “[tjhese existing buildings, houses, swimming pools, fences, pavements and other structures are located very 121 close to Gardere Canal, and damages to these structures may occur due to construction activities.” Further, contrary to the statement contained in his affidavit that B & K “performed all work on this project in accordance with the plans and specifications provided by the Government,” Mr. Andrews admitted in his deposition that he personally visited with two different residents in the area near the Project who complained about damages to their homes caused by the construction on the Gardere Canal. Further, Mr. Andrews stated in his deposition that he could not recall receiving Mr. Hinkamp’s letter referencing complaints resulting from the vibrations monitoring. However, Mr. Andrews’ simple failure to recall whether B & K received Mr. Hinkamp’s said letter does not confirm that B & K did not in fact receive such letter, and thus a genuine issue of material fact remains as to whether B & K did in fact receive such letter.

Accordingly, for the foregoing reasons, we find that genuine issues of material fact remain as to whether B & K performed all of its work in accordance with the plans and specifications of the Project. As such, B & K has failed to show as a matter of law that it is entitled to statutory contractor immunity pursuant to La. R.S. 9:2771.

Government contractor immunity

Plaintiffs also argue that summary judgment was also inappropriate because B & K failed to prove its affirmative defense of government contractor immunity, in particular because: (1) there were no “reasonably precise specifications” concerning the methods of pile-driving and use of equipment on the site; (2) even where there were reasonably precise specifications, ie., concerning the maximum allowable vibration levels on the Project, B & K’s work did not conform to those specifications; and (3) B & K did not warn the United States about the dangers in the pile-driving operation which were known to the contractor but not to the United States.

| {¡¡¡The government contractor immunity defense provides that contractors hired by the government cannot be held liable for performing their contracts in conformity with specifications established by the government. Hercules, Inc. v. United States, 516 U.S. 417, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996), and Boyle v. United Tech. Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). In order for a contractor to assert the government contractor defense, three prongs must be met: (1) the government must have approved reasonably precise specifications; (2) the work must have conformed to the specifications; and (3) the contractor must have warned of any dangers that were known to the contractor, but not the government. The contractor is not required to warn of dangers which it should have known, only dangers about which it had actual knowledge. ■ Kerstetter v. Pacific Scientific Company, 210 F.3d 431 (5th Cir.2000).

Again, considering the conclusory attestations contained in the affidavits B & K filed in support of its motion for summary judgment, as noted above, along with the exhibits submitted by plaintiffs, and Mr. Andrews’ deposition submitted by B & K, we find that B & K has failed in its burden of showing that no genuine issues of material fact remain regarding whether the work it performed conformed to the plans and specifications of the contract. The second prong of this defense has not been met.

For the foregoing reasons, we find that genuine issues of material fact remain as to the claims plaintiffs have asserted against B & K, and as such, B & K is not entitled to judgment as a matter of law. Accordingly, we reverse the trial court’s grant of summary judgment in favor of B &K

CONCLUSION

For the foregoing reasons, the trial court’s grant of summary judgment in favor of the Parish of Jefferson is hereby affirmed. Further, the trial court’s denial | jgof plaintiffs’ motion for leave to file their fifth amending and supplemental petition and its granting of the Parish’s motion to strike this pleading are also hereby affirmed. However, the trial court’s grant of summary judgment in favor of B & K Construction Company, Inc. is hereby reversed. Finally, this matter is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

      . Plaintiffs also filed supplemental petitions naming other defendants that are not relevant to this proceeding.

      . The summary judgment in favor of the Parish is appealed in No. 12-CA-215. The summary judgment dismissing B & K is appealed in No. 12-CA-488.

      . The Gardere Canal is a drainage system which was one of multiple projects collectively referred to as the SELA Project. The SELA Project was Congressionally authorized pursuant to the Energy and Water Development Appropriations Act of 1996 and the Water Resources and Development Act of 1996 and the various projects were constructed in cooperation with the local parishes. The primary purpose of the Gardere Canal Project was urban flood control improvement.

      . Previously, this Court entertained an earlier appeal filed by plaintiffs of a trial court judgment that granted the Parish’s motion for summary judgment, wherein the Parish claimed immunity from suit pursuant to La. R.S. 29:735, the Louisiana Emergency Assistance and Disaster Act. This Court reversed that judgment, finding that statute inapplicable to the instant case. Banks v. Parish of Jefferson, 08-27 (La.App. 5 Cir. 6/19/08), 990 So.2d 26, writ denied, 08-1625 (La.10/24/08), 992 So.2d 1043.

      . 06-1223 (La.App. 4 Cir. 1/30/08), 975 So.2d 698, 709-10, writ denied, 08-0607 (La.6/27/08), 983 So.2d 1289, and writ denied, 08-0664 (La.6/27/08), 983 So.2d 1289, and writ denied, 08-0671 (La.6/27/08), 983 So.2d 1289, and writ denied, 08-0672 (La.6/27/08), 983 So.2d 1290, and writ denied, 08-0673 (La.6/27/08), 983 So.2d 1290, and writ denied, 08-0674 (La.6/27/08), 983 So.2d 1290, and writ denied, 08-0675 (La.6/27/08), 983 So.2d 1291, and writ denied, 08-0682 (La.6/27/08), 983 So.2d 1291.

      . Prior to these motions for summary judgment being filed, in 2000, B & K filed a third-party demand against the Corps, who removed the suit to the U.S. District Court for the Eastern District of Louisiana. The Corps filed a motion for summary judgment arguing discretionary immunity, which was granted in 2001, whereupon the suit was remanded to state court. Samuel Banks et al. v. Parish of Jefferson et al., Civil Action No. 00-2956 (E.D.La.9/14/01).

      . In his deposition which was taken on November 2, 2010, Mr. Andrews acknowledged that he had been continuously employed by B & K since before B & K worked on the Gardere Canal Project, and had been actively involved in the Gardere Canal Project on behalf of B & K. Although this litigation had been pending for over ten years as of the time Mr. Andrews was deposed, he testified several times during the course of his deposition that he could not locate or recall much of the information and documentation he was questioned about during the course of his deposition, including information and documentation that was very pertinent to the issues involved in this litigation.