author: THIBODEAUX, Chief Judge.

text:
    Linton FONTENOT, et al., v. Neal LARTIGUE.
    No. 14-1327.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 30, 2014.
    Walter Flanders Clawson, Attorney at Law, Shreveport, LA, for Plaintiffs/Appellants, Linton Fontenot, Glenn Leleux.
    Christopher Brent Cored, Ville Platte, LA, for Defendant/Appellee, Neal La-rtigue.
    Stephen D. Hawkland, Lani B. Durio, Baton Rouge, LA, for Intervenor/Appellee, Tom Schedler, in his official capacity as Secretary of State, State of Louisiana.
    Linton Fontenot, In Proper Person, Ville Platte, LA, for Plaintiff/Appellant.
    Glen Leleux, In Proper Person, Ville Platte, LA, for Plaintiff/Appellant.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

bThe plaintiffs-appellants, Linton Fonte-not and Glenn Leleux, who were both candidates in an election for the position of Chief of Police for the City of Ville Platte, Louisiana, appeal the judgment of the trial court granting the exceptions of prescription, peremption, and no cause of action which were filed on behalf of the defendants-appellees, Neal Lartigue and Tom Schedler, in his official capacity as Louisiana Secretary of State. Fontenot and Le-leux contend that the trial court erred in failing to find that they could challenge the election which was held on December 6, 2014, based on Mr. Lartigue allegedly not qualifying as an elector in that city at the time of the election. Finding that the trial court correctly applied the law in dismissing Fontenot’s and Leleux’s case as an untimely challenge to Mr. Lartigue’s qualifications to be a candidate for this office, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Fontenot and Leleux are electors from Ville Platte and are former candidates for the position of Ville Platte’s police chief. The qualifying period for the candidates in this race was August 20-22, 2014. Pursuant to La.R.S. 18:493, the time period for challenging the failure of a candidate to possess the necessary qualifications for this race expired at 4:30 p.m. on the seventh day after the close of the qualifications period, i.e., August 29, 2014. No challenge was made against Mr. Lartigue during this time period.

The initial election for Ville Platte’s police chief resulted in a runoff on December 6, 2014, between Mr. Fontenot and Mr. Lartigue; Mr. Lartigue was the successful candidate, having received 1,688 votes against Mr. Fontenot’s total votes of 1,246. On December 15, 2014, Fontenot and Le-leux filed their suit 12captioned as “Petition to Contest Election.” In this pleading and the two amending and supplemental petitions, Fontenot and Leleux averred that Mr. Lartigue did not live at the address which he gave at the time that he filed his qualifying papers for this election. In fact, Fontenot and Leleux contend that Mr. La-rtigue continues to reside outside the city limits of Ville Platte. Citing La.R.S. 33:385.1(A), which requires candidates for an elected chief of police not only to live in the municipality at the time of qualifying for this position, but also for the immediate preceding year, excluding two municipalities not involved in the instant case, Fontenot and Leleux prayed for the trial court to enter judgment invalidating the election held on December 6, 2014, and directing the Clerk of Court to remove Mr. Lartigue from the office of police chief for Ville Platte.

Mr. Lartigue responded to this suit with the filing of the peremptory exceptions of prescription, peremption, and no cause of action. Although Mr. Lartigue was the only defendant named in Fontenot’s and Leleux’s initial petition, Tom Schedler, in his official capacity as Secretary of State for Louisiana, successfully intervened and also filed exceptions of peremption and no cause of action.

Following arguments by all parties in this action, the trial court entered judgment sustaining the exceptions of prescription, peremption, and no cause of action. The trial court denied Fontenot’s and Le-leux’s “Motion for New Trial” and “Motion to Amend Judgment Due to Manifest Error.” They then filed a suspensive appeal from the trial court’s ruling.

LAW AND DISCUSSION

Fontenot and Leleux argue in this appeal that the trial court has incorrectly characterized their suit as a challenge to Mr. Lartigue’s qualifications to |shold the office of police chief rather than as an election contest. Thus, they contend that the trial court’s error was applying the law barring any action to challenge a candidate’s qualifications, which must be filed within seven days of the end of the qualifying period, rather than applying the law permitting an election contest to be filed within nine days following the election pursuant to La.R.S. 18:1405(B). Moreover, Fontenot and Leleux interpret the first sentence of La.R.S. 3S:385.1(A) to provide them with this cause of action for an election contest because Mr. Lartigue was not an elector of Ville Platte at the time the election was held on December 6, 2014.

Louisiana Revised Statutes 33:385.1(A), entitled qualifications of elected chief of police, provides:

Except as otherwise provided in this Section, an elected chief of police of a municipality shall be an elector of the municipality. At the time of qualification as a candidate for the office of chief of police, he shall have been domiciled for at least the immediately preceding year in the municipality except that a person who resides outside of the corporate limits of the village of Maurice may be elected chief of police. The provisions of this Section shall not apply to the village of Napoleonville.

The entirety of Fontenot’s and Leleux’s case hinges on their argument arising from the first sentence of the above-quoted statute. They contend that since this statute uses the term “elected chief of police,” the statute is requiring that the person who wins the election for police chief be an elector on the day of the election. Since their petition avers that Mr. Lartigue was not an elector on the day of the election, Fontenot and Leleux deduce that the election is subject to contest and should be declared invalid. We disagree.

As pointed out by Mr. Lartigue in brief to this court, La.R.S. 33:381(B) states, “The mayor and chief of police in all municipalities shall be elected at |4large.... Municipalities where the chief of police is appointed rather than elected as of August 1, 1970, may continue to operate with an appointive chief.” Furthermore, this statute proceeds to list several Louisiana communities in which the chief of police is appointed rather than elected. Finally, Mr. Lartigue refers to provisions allowing the mayor and board of alderman to set the qualifications for an appointed police chief, as opposed to an elected one which is set by such provisions as the La.R.S. 33:385.1. See, e.g., La.R.S. 33:381(C)(13)(b).

While Mr. Schedler points out that Fon-tenot and Leleux can pursue having the district attorney take the appropriate steps to have the position of police chief declared vacant due to Mr. Lartigue’s purported failure to meet the necessary domiciliary qualifications to hold that position pursuant to La.R.S. 18:671, et seq., Fonte-not and Leleux have deliberately denied that their claim is seeking such relief. Both Mr. Schedler and Mr. Lartigue contend that Fontenot’s and Leleux’s suit is merely a challenge to Mr. Lartigue’s qualifications for the position.

Mr. Lartigue and Mr. Schedler rely on La.R.S. 18:493, which states:

An action objecting to candidacy shall be commenced in a court of competent jurisdiction within seven days after the close of qualifications for candidates in the primary election. However, if the time interval ends on a Saturday, Sunday, or other legal holiday, then noon of the next day which is not a Saturday, Sunday, or legal holiday shall be deemed to be the end of the time interval. After the expiration of the time period set forth in this Section, no action shall be commenced objecting to candidacy based on the grounds for objections to candidacy contained in R.S. 18:492 above.

Louisiana Revised Statutes 18:492 reads in pertinent part:

A. An action objecting to the' candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:
(3) The defendant does not meet the qualifications for the office he seeks in the primary election.

|BWe find, as did the trial court, that despite Fontenot’s and Leleux’s assertions, the essence of their claim is to challenge Mr. Lartigue’s qualifications to be a candidate for the office of police chief for Ville Platte. The facts of this case closely follow the facts and arguments set forth in Evans v.- West, 357 So.2d 916 (La.App. 2 Cir.1978), wherein the plaintiff also tried to fit the domicile argument into the irregularities or fraud provision of La.R.S. 18:1401 as a basis for an election contest. Furthermore, as noted by the second circuit in Evans, the time period set forth in La.R.S. 18:493 for challenging a candidate’s qualification to hold the office for which he is running is a peremptive time period, and, thus, the cause of action ceases to exist after the passage of that time period. Since the cause of action for a candidacy challenge ceases to exist after the time period expires, the claim is subject to the exception of no cause of action. La.Civ.Code art. 3458. Jackson v. Myer, 2010-2108 (La.App. 1 Cir. 11/19/10), 52 So.3d 271, and Evans, 357 So.2d 916.

Additionally, we agree with Mr. Sche-dler that there is no amendment to the petition that Fontenot and Leleux can now make to assert a viable cause of action. As discussed above, the challenge based on Mr. Lartigue’s domicile is untimely and cannot be countenanced. As this was the only basis asserted by Fontenot and Le-leux in their petition and amending and supplemental petitions, amendment of this claim would be of no avail. Furthermore, if Fontenot and Leleux now amend their petition to state a wholly new basis for an election contest, this claim would be time barred based on La.R.S. 18:1405(B).

Finally, Mr. Lartigue asks that this court award him damages based on Uniform Rules — Courts of Appeal, Rule 2-19, for taking a frivolous appeal. | (¡While we affirm the trial court’s ruling in this matter, we find that an award of damages for a frivolous appeal is not warranted in this case.

For the reasons discussed above, we affirm the trial court. All costs are assessed against the plaintiffs, Linton Fonte-not and Glenn Leleux.

AFFIRMED.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Mayra ARTIGUE v. WAL-MART STORES, INC., et al.
    No. 13-537.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Charlotte C. McDaniel McGehee, Baton Rouge, LA, for PlaintiffAppellant Mayra Artigue.
    Stephen P. Beiser, Susanne Veters, McGlinchey Stafford, New Orleans, LA, for Defendanl/Appellee Wal-Mart Stores East, LP.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   COOKS, Judge.

| ¡.This is an appeal arising from a judgment granting a motion for summary judgment in favor of Defendant, Wal-Mart Stores East, LP, finding the Plaintiff, Mayra Artigue, cannot establish a prima facie case of sexual harassment or a claim for intentional infliction of emotional distress.

FACTS AND PROCEDURAL HISTORY

Plaintiff was hired as an Unloader at Wal-Mart’s Opelousas Distribution Center on July 28, 2008. Wal-Mart notes she was put through an orientation consisting of classes, tests and videos relating to Wal-Mart’s anti-harassment policies and procedures. Accordingly, Wal-Mart maintains Plaintiff was aware that Wal-Mart had a zero tolerance policy towards sexual harassment and that all incidents of harassment were to be reported to management.

On August 16, 2008, Plaintiff requested and received a transfer at the Distribution Center from the weekday to the weekend shift. One of her three area managers was Titus Joubert. Plaintiff maintained she was repeatedly harassed by Joubert, finally culminating in him touching her private parts on October 4, 2008, while inside a trailer. The incident was unwit-nessed. Immediately following the alleged touching of her private parts, Plaintiff stated that Joubert responded “it’s okay” and continued to speak to her about work before he left the trailer and returned with a bottle of water for her. Plaintiff left work that day before her shift ended.

On October 8, 2008, Plaintiff returned to the Distribution Center for the first time since the October 4, 2008 incident. She reported the alleged incident to Human Resources Manager Vivian Dawson. She was interviewed and asked to prepare a written statement. In the written statement, Plaintiff listed five previous instances where Joubert had made inappropriate comments or had come too close to her. She explained she did not report these previous instances, because she 13“didn’t see much to it” at thé time. Plaintiff also requested a three-week leave of absence due to the incident.-

Upon receipt of Plaintiffs statement, Dawson began an investigation into the allegations. Joubert was suspended without pay pending the outcome of the investigation. Joubert and several co-workers were questioned. Joubert denied the allegations, and there were no witnesses to the alleged incident. Thus, Dawson was unable to substantiate Plaintiffs claims. However, Dawson did discover, as a result of a separate investigation that was being conducted at the Distribution Center, Jou-bert had recently massaged a female worker’s shoulders. Although that worker did not file any complaint and purported to not be offended by the massage, Dawson determined. the massage was inappropriate and Joubert should be disciplined. On October 27, 2008, Joubert was terminated from his position with Wal-Mart.

Plaintiff obtained several extensions of her three-week leave of absence and remained off of work. On November 11, 2009, Dawson informed Plaintiff by certified letter her leave had expired on October 12, 2009. Wal-Mart’s policy provided the maximum length for a personal absence because of a medical condition was twelve months. Despite this, Dawson asked Plaintiff to fill out another extension of leave form in case it was determined she was entitled to another extension due to special circumstances. Dawson also informed Plaintiff if she failed to return the extension request within fifteen days she was subject to possible termination. Plaintiff did not comply with Dawson’s request, and was terminated on December 7, 2009.

Plaintiff filed suit against Wal-Mart and Joubert alleging hostile work environment sexual harassment in violation of La.R.S. 23:301 et set/., and |4intentional infliction of emotional distress under La.Civ.Code art. 2315. After some discovery had occurred, Wal-Mart filed a Motion for Summary Judgment contending, based on the undisputed facts, that there was no basis for liability on the part of Wal-Mart for any of the causes of action asserted by Plaintiff. Plaintiff opposed the motion, contending there were disputed genuine issues of material fact that prevented the granting of summary judgment.

A hearing was held, after which the trial court granted summary judgment in favor of Wal-Mart. The trial court found there was essentially no dispute about the facts (which Plaintiff strongly disagreed with) and found Plaintiffs allegations Of harassment did not constitute the type of severe or pervasive conduct required to establish a hostile work environment sexual harassment claim. The trial court also found Plaintiff did not suffer any tangible employment action as a result of the alleged harassment and could not establish a claim for intentional infliction of emotional distress or vicarious liability on the part of Wal-Mart for any alleged intentional tort. The trial court also found Wal-Mart was entitled to the Ellerth/Faragher affirmative defense based on Wal-Mart’s prompt response to Plaintiffs complaint in accordance with its policies.

Plaintiff has appealed, asserting the trial court erred in granting Wal-Mart’s Motion for Summary Judgment. Plaintiff argues the facts below show Wal-Mart’s harassment policy was not enforced and a hostile work environment did exist at the Wal-Mart in question. It is also asserted Wal-Mart is responsible to Plaintiff under the doctrine of respondeat superior. Plaintiff further contends the trial court erred in finding no tangible employment action occurred as a result of the alleged harassment when Plaintiff was fired after she was put on leave without pay after reporting the harassment.

| .ANALYSIS

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions admitted, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La,Code Civ.P. art. 966(B). Pursuant to a 1996 amendment to the summary judgment article, the summary judgment procedure is now favored under our law. La.Code Civ.P. art. 966(A)(2).

Paragraph C(2) of Article 966 provides:

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 burden of proof does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Martinez v. American Steelway Industries, L.L.C., 09-0339 (La.App. 4 Cir. 9/2/09), 20 So.3d 526. At that point, if the party opposing the motion “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.” La. Code Civ.P. art. 966(C)(2). Summary judgment should then be granted. Hood v. Cotter, 08-215, p. 6 (La.12/2/08), 5 So.3d 819, 823.

In Hardy v. Bowie, 98-2821, p. 6 (La.9/8/99), 744 So.2d 606, 610, the Louisiana Supreme Court stated that “[a] fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Additionally, the Supreme Court stated that “[fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id.

Plaintiff alleges she was forced to work in a hostile environment created by repeated sexual advances toward her by her supervisor. Louisiana Revised Statutes 23:332(A) provides that it shall be unlawful for an employer to:

(1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin.
(2) Intentionally limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee, because of the individual’s race, color, religion, sex, or national origin.

As this statute is similar to Title VII of the Civil Rights Act of 1964, Louisiana courts have availed themselves of decisions found in federal jurisprudence when interpreting claims pursuant to La.R.S. 23:332. Hicks v. Cent. La. Elec. Co., Inc., 97-1232 (La.App. 1 Cir. 5/15/98), 712 So.2d 656.

In order to prevail on a hostile work environment claim, the claimant must prove five elements: 1) she belonged to a protected group; 2) she was subjected to harassment; 3) the harassment was motivated by discriminatory animus; 4) the harassment affected a term, condition, or privilege of employment; and 5) that the employer knew or should have known of the harassment and failed to take proper remedial action. Edmond v. Pathfinder Energy Servs., Inc., 11-151, pp. 9-10 (La. App. 3 Cir. 9/21/11), 73 So.3d 424, 429-30 (citing Chaney v. Home Depot, USA, Inc., 05-1484 (La.App. 4 Cir. 8/16/06), 940 So.2d 18, writ denied, 06-2286 (La.11/22/06), 942 So.2d 559), unit denied, 11-2234 (La.12/16/11), 76 So.3d 1204. “[W]here the harassment is allegedly committed by a supervisor with immediate (or successively higher) authority over the harassment victim, the plaintiff need only satisfy the first four elements listed above.” Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir.2001).

The United States Supreme Court recognized two categories of hostile work environment sexual harassment claims: (1) harassment that “culminates in a tangible employment action[;]” and (2) harassment that takes place in the absence of a tangible employment action. Penn. State Police v. Suders, 542 U.S. 129, 143, 124 S.Ct. 2342, 2352, 159 L.Ed.2d 204 (2004), quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). If a claimant establishes she suffered a tangible employment action which resulted from the alleged sexual harassment, the employer is vicariously hable per se. Casiano v. AT&T Corp., 213 F.3d 278 (5th Cir.2000). If the claimant did not suffer a tangible employment action as a result of the harassment, the employer may assert the affirmative defense set forth by the Supreme Court in Faragher, 524 U.S. at 777-78, 118 S.Ct. at 2278 (citation omitted):

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any ... harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Plaintiff asserts she suffered a tangible employment action in this case, and thus Wal-Mart should not be entitled to the affirmative defense set forth in Faragher.

|«/. Tangible Employment Action.

A tangible employment action is defined as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761, 118 S.Ct. at 2268. After a review of the record, we cannot say the trial court erred in finding no tangible employment action resulted from the alleged sexual harassment. Joubert did not take any adverse employment action against Plaintiff, nor did his conduct result or culminate in any adverse employment action. Plaintiff was in a position to return to her same job immediately after she made her complaint and was not required to work again with Joubert, who was terminated from his position with Wal-Mart. The record established Plaintiff was not placed on leave, but requested leave and repeatedly extended her leave.

Plaintiff was clearly informed on November 11, 2009, that her leave had expired, and if she did not return the paperwork to extend her leave within fifteen days she would be terminated in accordance with Wal-Mart’s policies. Plaintiff argued she was given the “wrong paperwork” by Wal-Mart. However, Plaintiff acknowledged she received a letter expressly advising her that once the one-year leave period expired, she would have to fill out a different leave package. Plaintiff stated she ignored the letter because she believed she should not have to complete any additional forms or have to return to her doctor. Thus, the trial court did not err in finding Plaintiffs termination was not a result of the alleged harassment. It is not enough to show merely that a tangible employment action eventually followed the harassment. Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052 (10th Cir.2009). A claimant must demonstrate a causal nexus between the supervisor’s harassment and the tangible employment action. Id.

| gll. Hostile Work Environment Sexual Harassment Claim.

The absence, however, of a finding that a tangible employment action occurred is not necessarily fatal to Plaintiffs hostile work environment sexual harassment claim. An employer still has to establish as an affirmative defense “(a) that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 787, 118 S.Ct. 2275. The court in Faragher stated “in order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim did in fact perceive to be so.” Id. at 787, 118 S.Ct. 2275, citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 867, 126 L.Ed.2d 295 (1998). The supreme court directed the courts to determine whether a workplace environment is “sufficiently hostile or abusive by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Faragher, 524 U.S. at 787-88, 118 S.Ct. 2275, quoting Harris, 510 U.S. at 17, 114 S.Ct. 367. The court cautioned that Title VII is not intended to become a “general civility code” and should not prohibit “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” Faragher, 524 U.S. at 787-88, 118 S.Ct. 2275, quoting Oncale v. Sundowner Offshore Serv. Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). The court noted that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the “terms and conditions of employment.” Id. As Wal-Mart points out, Faragher states that in the absence of a tangible employment action, to prevail on a hostile work environment claim, a claimant must | ^demonstrate that the alleged harassment was so severe or pervasive as to change the “terms and conditions of employment.” Wal-Mart contends Plaintiff cannot make that demonstration, thus it is entitled to summary judgment in this case.

Plaintiff set forth the following incidents of harassment against her by Joubert:

1. Sometime in August of 2008, Jou-bert handed Plaintiff some paperwork and Joubert’s hand was “moving toward” Plaintiffs stomach. Plaintiff moved away from Joubert.
2. While reviewing paperwork with Plaintiff, Joubert’s finger or pen touched Plaintiffs knee. Plaintiff moved the chair back to avoid any further contact until Joubert left the room.
3. On one occasion in mid-August, 2008, Joubert walked behind Plaintiff in a group of people and stated “that’s okay, walk faster, I love to see you walk.”
4. On September 29, 2008, Joubert told Plaintiff that she was pretty and that he liked to see her walk.
5. On one occasion Joubert asked Plaintiff if she was bothered that he was a married man and during that same conversation then made a sexually explicit comment about Jolly Rancher candy to Plaintiff inferring that pink was the color of his private parts. “He as he pulled out of his pocket a candy ... I asked ‘Do you have a red?’ And he said ‘No it’s not red it’s pink.’ With a smirk on his face.”
6. On October 4, 2008, Plaintiff stated when she and Joubert were alone in a
trailer, Joubert reached around her several times, finally grabbing her buttocks aggressively and then running is finger over Plaintiffs vagina.

Wal-Mart argues “a single one to two second long alleged act of inappropriate touching, two mild comments, a ‘smirk,’ an ‘almost’ touching of the stomach and a ‘kind of touching of the corner of the knee with a finger or pen over a two month period” do not rise to the level of severity or pervasiveness required to support a claim of hostile work environment sexual harassment. The trial court weighed Plaintiffs allegations and agreed with Wal-Mart that it was not severe or pervasive. We find the trial court’s weighing of the allegations and factual | n determinations are inappropriate at the summary judgment stage of the proceedings.

Moreover, we find there is, at a minimum a genuine issue of material fact as to whether the allegations set forth by Plaintiff are sufficient to establish the harassment by Joubert was so severe or pervasive as to change the terms and conditions of Plaintiffs employment.

We find woefully inadequate Wal-Mart’s characterization of the alleged incident on October 4, 2008, as “a single one to two second long alleged act of inappropriate touching.” This alleged incident as described by Plaintiff raises questions regarding the seriousness of the incident and the underlying intent as to whether the incident met the reasonable definition of the word severe. In this sense, genuine issues of material fact remain. Moreover, the court in Faragher clearly set forth that isolated incidents, if extremely serious, can amount to discriminatory changes in the “terms and conditions of employment.” A sexual assault of an employee by her supervisor may reasonably be considered an extremely serious incident. The court in Faragher also directed courts to “determine whether an environment is sufficiently hostile or abusive by ‘looking at all the circumstance,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Faragher, 524 U.S. at 787-88, 118 S.Ct. 2275, quoting Harris, 510 U.S. at 17, 114 S.Ct. 367. The trier of fact could reasonably view the October 4, 2008 incident as severe, physically threatening or humiliating, and conclude it would interfere with the employee’s work performance. Therefore, we find the trial court’s factual determination that Plaintiffs allegations did not rise to the level of severe or pervasive was inappropriate.

“A sexual harassment claim, by its very nature, is very [fact] intensive.” White v. Golden, 43,076, p. 14 (La.App. 2 Cir. 4/30/08), 982 So.2d 234, 244. As is our charge, we have conducted a de novo review of the record, and find it is possible that the trier of fact could find Plaintiffs allegations sufficient to amount to severe or pervasive conduct. Thus, a genuine issue of material fact exists and summary judgment is precluded.

Nevertheless, Wal-Mart argues even if Plaintiff proves the existence of a hostile work environment claim, Wal-Mart may avoid liability by proving that it had an effective harassment policy in place and exercised reasonable care to prevent and correct promptly any sexually harassing behavior toward Plaintiff. Specifically, Wal-Mart argues summary judgment was appropriate here because it was undisputed that it had an effective policy on harassment in place, provided extensive training on that policy, immediately responded to Plaintiffs complaint, and that Plaintiff failed to take advantage of the correctional opportunities provided by Wal-Mart. We find, however, this argument is genuinely disputed by the testimony of several witnesses in this case, including Amanda Williams, an area manager, who testified there were two separate reports of Jou-bert harassing female employees that went uninvestigated. Michelle LeBlanc, a manager, stated that Joubert had a prior improper relationship with a female employee named Dena that was not investigated internally. Plaintiff maintains the affirmative defense Wal-Mart attempts to avail itself of is only applicable if the harassment policy in place is enforced, which she maintains it was not in the instant case. While Wal-Mart’s affirmative defense may ultimately prove to be a bar against Plaintiffs suit in this case, there exist genuine issues of material fact at this stage of the proceedings which prevent summary judgment being granted in Wal-Marfis favor.

J^DECREE

For the foregoing reasons, the judgment of the lower court granting the motion for summary judgment is reversed. The matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to Defendant-Appellee, Wal-Mart Stores East, LP.

REVERSED AND REMANDED.

      . It was established that Joubert had been disciplined for other violations in' the past, which were contributing factors in his terrni-nation: Failure to sign out power equipment; tardiness; and failure to provide timely feedback to employees about their performance.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Sidney John HANDY.
    No. 13-729.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Michael Harson, District Attorney, Allan P. Haney, Assistant District Attorney, Fifteenth Judicial District Court, Lafayette, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Sidney John Handy.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| defendant, Sidney John Handy, approached a security guard from behind at a bus terminal in Lafayette, Louisiana, and tried to forcefully remove her gun from its holster. Unsuccessful, Defendant gave up, lay on the ground, and asked the security guard to handcuff him. The security guard backed away, and Defendant got up and walked away.

Defendant was charged by bill of information with one count of attempted simple robbery, a violation of La.R.S. 14:27, and several other crimes unrelated to this appeal. He pled not guilty. Pursuant to a motion filed by Defendant, the trial court ordered the appointment of a sanity commission to evaluate Defendant’s capacity to proceed to trial and to evaluate his mental condition at the time of the offense. The trial court found Defendant competent to proceed to trial. The trial court ordered the appointment of a second sanity commission. The minutes also indicate that Defendant advised the court that he wished to represent himself. Defendant was, again, found competent to stand trial.

At trial, Defendant informed the trial court that he wanted to terminate his lawyer and represent himself. Defendant proceeded with trial, allowing defense counsel to cross-examine witnesses and give a closing statement. At the conclusion of trial, the jury found Defendant guilty as charged of attempted simple robbery. Subsequently the trial court sentenced Defendant to three and one-half years at hard labor. The State filed a multiple offender bill against Defendant. The record, however, contains no disposition of the multiple offender bill. Defendant now appeals and alleges that the evidence was insufficient to convict him of simple robbery. For the following reasons, we affirm Defendant’s conviction.

TERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there is one possible error patent concerning the right to counsel and another easily remedied error patent concerning the failure to advise Defendant of the time period for filing an application for post-conviction relief.

First, the court minutes of trial indicate that Defendant represented himself with the help of appointed counsel. The minutes indicate that after Defendant expressed his desire to represent himself, the court advised Defendant of his rights and advised against self-representation. Defense counsel was relieved of his obligation to represent the Defendant but chose to remain in court.

In conducting an error patent review of the waiver of the right to counsel, this court would traditionally begin by examining the adequacy of the waiver. This is because before a court can allow a defendant to give up his constitutionally-protected right to counsel, the waiver must be given “knowingly and intelligently.” Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Occasionally, a criminal defendant desires to represent himself but also have an attorney as his “advisor.” In such a circumstance, the law, nevertheless, requires that the defendant “must knowingly abandon his right to be represented by counsel.” State v. Dupre, 500 So.2d 873, 876-78 (La.App. 1 Cir.1986), unit denied, 505 So.2d 55 (La.1987).

In the present ease, at the beginning of trial, Defendant indicated that he did not wish to have an attorney representing him. The trial court explained that he did not have the right to choose court-appointed counsel but that he did have a right to hire a lawyer or represent himself. Although the trial court advised against selfjrepre-sentation,3 Defendant indicated that he wanted to represent himself. The trial court told the appointed counsel he would have him “hang around.” Counsel indicated that he would stay and perhaps could help. At Defendant’s request, counsel conducted the voir dire of the prospective jurors. He then informed the court that after discussion with Defendant, he wished to waive opening statement, and Defendant agreed. During the course of trial, defense counsel responded to questions asked by the trial court, raised all defense objections, questioned all witnesses, reviewed the proposed jury charges, requested inclusion of another offense on the verdict form, gave the closing argument, and requested polling of the jurors when the verdict was returned.

In this case, counsel did not serve as a mere “advisor” but as the controlling strategist in the case. Essentially, Defendant stepped aside and allowed counsel to do everything despite his earlier request to represent himself. Under these circumstances, no error patent occurred.

Next, the record does not indicate that the trial court advised Defendant of the prescriptive period for filing an application for post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the provisions of article 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof in the record indicating that Defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

^SUFFICIENCY OF THE EVIDENCE

Defendant alleges that the evidence was insufficient to convict him of attempted simple robbery. Specifically, Defendant argues that there was no evidence that Defendant intended to take the gun away from the security guard. At most, Defendant contends, he is guilty of simple battery. This court has stated the following regarding the standard for reviewing a claim of insufficient evidence:

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La. Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:
However, an appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinder’s role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. 120, [134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).
State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378 (alteration in original).

State v. Francis, 12-1221, p. 6-7 (La.App. 3 Cir. 4/11/13), 111 So.3d 529, 533.

In State v. Young, 00-1437, pp. 7-8 (La.11/28/01), 800 So.2d 847, 851, the supreme court set forth the elements of attempted simple robbery:

La.R.S. 14:65(A) defines simple robbery as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another by use of force or intimidation, but not armed with a dangerous weapon. La.R.S. 14:27(A) further provides that to attempt to commit a crime, an accused must do or omit an act tending directly toward the accomplishment of the crime while “having a specific intent” to commit the crime. La.R.S. 14:10(1) defines specific intent as that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. In order to prove an attempted simple robbery, the State had to prove that the defendant: (1) had a specific intent to commit the crime of simple robbery, and (2) did an act for the purpose of and tending directly toward the commission of the crime of simple robbery.

In the present case, Melinda Boudreaux testified that on June 19, 2008, she was working as a security guard at a bus terminal in Lafayette. While walking around and checking the bus terminal, Ms. Bou-dreaux was approached by Defendant. Defendant told Ms. Boudreaux that he was a supervisor for “LUS.” 16This made Ms. Boudreaux nervous and caused her to start backing up. According to Ms. Boudreaux, Defendant “all of a sudden” came behind her and started “fighting [her] for [her] gun.” Ms. Boudreaux testified that Defendant demanded, “Let go of the gun. Give me your-gun.” Ms. Boudreaux also testified that Defendant threatened to shoot her. When first asked if Defendant tried to remove something from her hip, Ms. Boudreaux replied, “No.” Then, when the State asked her if Defendant tried to remove her gun, Ms. Boudreaux responded, “Yes. He tried to remove my gun.” According to Ms. Boudreaux, Defendant tried to get the gun out of her holster. When asked by the State if Defendant tried to forcefully take the gun from her hip, Ms. Boudreaux replied, ‘Yes.” The State then asked Ms. Boudreaux whether Defendant succeeded in getting the gun. Ms. Bou-dreaux answered, “No. He gave up and he got on the ground and he wanted me to handcuff him.” Ms. Boudreaux did not have any handcuffs, so she just backed up, and Defendant got up and walked away. Ms. Boudreaux identified Defendant as the person who forcefully grabbed her and tried to remove her gun. Finally, during her direct testimony, Ms. Boudreaux identified State’s Exhibit 1 as a video surveillance of the incident. The video was played for the jury. Narrating a particular scene in the video, Ms. Boudreaux testified, “He’s trying to get my gun and I was having to fight for him not to get my gun.” While the video does not show a close-up of the incident, it does show Defendant wrapping his arms around Ms. Boudreaux while Ms. Boudreaux appears to be trying to get away.

On cross-examination, Ms. Boudreaux testified that Defendant did not punch her and did not put her in a choke hold. Ms. Boudreaux also admitted that earlier on the day of trial, she mistakenly identified the wrong person when a detective asked her to point out Defendant. Ms. Bou-dreaux realized that she pointed out the | ./wrong person when she saw Defendant. Ms. Boudreaux also admitted that in her statement to police, she did not use the words “fought” or “steal.” Basically, Ms. Boudreaux admitted that in her statement to police she indicated only that Defendant put his hand on her holster.

On re-direct examination, Ms. Bou-dreaux stated that she was one hundred percent sure that Defendant was the person who attacked her and tried to take her gun. When asked if there was any doubt in her mind, Ms. Boudreaux stated, “No doubt whatsoever.”

■ The only other witness to testify at trial was Alberta Melancon, a bus operator for Lafayette Transit. When asked to describe what she saw on the day in question, Ms. Melancon testified:

I loaded up my passengers and I was getting ready to leave. And the security guard was standing not too far from me, where my bus was parked. And the young man was talking to her and then after that he grabbed her from her waist and was trying to remove her weapon. And then after that, that’s when I called my supervisor to call the police.

On cross-examination, Ms. Melancon stated that all she saw Defendant do is put his hand on Ms. Boudreaux’s holster.

In brief, Defendant argues that nothing in the evidence presented indicates that he intended to take Ms. Boudreaux’s gun:

In the case sub judice, other than Melinda Boudreaux’s statement that [Defendant] said, “Let go of the gun. Give me your gun,” there is no indication that [Defendant] intended to take her gun. There was no testimony presented that [Defendant] removed the gun from the holster or did anything other than touch the holster. Most gun holster’s have a strap which keeps the [g]un in the holster. There was no indication that [Defendant] unsnapped this strap. In addition, [Defendant’s] actions in getting on the ground immediately afterwards, and telling Melinda Boudreaux to handcuff him indicates that [Defendant], does have impaired judgment and suffers from below average intelligence. [Defendant’s] behavior seems to indicate a motive other than robbery for his actions. Thus, the evidence did not | ^preclude every reasonable hypothesis of innocence. At most, [Defendant] is guilty of simple battery.

In support of his argument, Defendant cites two cases where the supreme court and this court found insufficient evidence to convict the defendants of attempted simple robbery. In Young, 800 So.2d 847, the Louisiana Supreme Court found no evidence was presented that Young intended to take something of value from the victim when the evidence showed that Young surprised the victim by jumping onto the store counter, subduing the victim, and stating, “I got you. I got you.” Id. at 851. Although the supreme court found there was sufficient evidence to convict Young of second degree battery, the court found the evidence was insufficient to find Young guilty of attempted simple robbery.

Likewise, in State v. Stone, 615 So.2d 38 (La.App. 3 Cir.), writ denied, 623 So.2d 1302 (La.1993), this court found insufficient evidence to convict Stone of attempted simple robbery. While in a store,, Stone gathered several items and placed them on a counter. Sometime afterward, Stone attacked the store clerk with a knife. After a brief struggle, Stone gave up the attack. Finding Stone committed no overt act tending-to show that she intended to take the items she gathered and placed on the counter and finding no evidence that Stone demanded anything of value from the store clerk, this court found the evidence was insufficient to convict Stone of attempted simple robbery.

In its brief, the State argues that the cases cited by Defendant are distinguishable from the case at hand. Unlike the evidence in Young and Stone, the State argues that the evidence in the present case consisted of two witnesses who testified that Defendant tried to remove Ms. Boudreaux’s weapon and a video surveillance showing that he attempted to take Ms. Boudreaux’s gun from her hip. |9We agree. Considering the video surveillance which showed Defendant wrapping his arms around Ms. Boudreaux while Ms. Boudreaux attempted to get away, the live testimony of Ms. Boudreaux and Ms. Me-lancon that the Defendant placed his hands on Ms. Boudreaux’s holster, Ms. Bou-dreaux’s testimony that Defendant told her to give him her gun, Ms. Boudreaux’s testimony that Defendant struggled with her to take her gun, and Ms. Melancon’s testimony that she saw Defendant grab Ms. Boudreaux’s waist and try to remove her weapon, the evidence sufficiently showed that Defendant specifically intended to take Ms. Boudreaux’s gun and committed an overt act toward that purpose.

DECREE

Defendant’s conviction is affirmed. The trial court is, hereby, directed to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of the opinion and to file written proof in the record that the Defendant received the notice.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The record does not indicate what "LUS" stands for.


text:
    STATE of Louisiana v. Jamaal Cole DIGGS.
    No. 13-766.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Michael Harson, District Attorney, Ted L. Ayo, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward John Marquet, Lafayette, LA, for Defendaní/Appellant, Jamaal Cole Diggs.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

11 Three eyewitnesses, a shop keeper, a man in his carport, and a teenager playing basketball, all testified that Defendant, Jamaal Cole Diggs, shot D’Jacqney W. Mitchell in the face. Immediately thereafter, Defendant killed Mr. Mitchell as he lay on the ground by firing three more shots in his neck and chest. A grand jury indicted Defendant for the second degree murder of Mitchell, a violation of La.R.S. 14:30.1(A)(1).

A jury found Defendant guilty as charged, and the trial court sentenced him to life in prison without benefit of parole, probation, or suspension of sentence. Defendant filed a motion to reconsider his sentence arguing the trial court should have a hearing to determine if his life sentence was unconstitutional. He also filed a motion for new trial arguing that the evidence was insufficient to prove his guilt beyond a reasonable doubt. The trial court denied both motions.

Defendant now appeals his conviction and sentence. He argues that the evidence was insufficient to convict him, and that his automatic life sentence is unconstitutional. For the following reasons, Defendant’s conviction and sentence are affirmed.

FACTS

Stan Suire, lead detective of the Abbe-ville Police Department, was walking to his vehicle on December 10, 2009, when he heard a radio report of shots being fired on Dutel Street. He went to the location and found “a lot of chaos, a lot of people running around.” He spoke to Morris “Poop” Wright, the closest witness at the time, who was visibly upset because he witnessed the incident and knew the victim very well. Mr. Wright described the shooter “as a thin male with — with the haircut, hairdo, and he did mention that it was the driver of a purple car, which is a 12car that is one of a kind in Abbeville, and it was one of Mary Lou’s kids, Mary Lou Diggs.”

Mr. Wright told Detective Suire that the suspect wore a red “skin cap.” He described the suspect in his first statement as a short black male, thin build, with dreadlocks. Booking information showed that Defendant is six feet tall. His brother, Jerion “Booby” Diggs, is about five feet, six inches tall; and on April 11, 2011, the date of the photograph submitted into evidence, Jerion weighed 190 pounds. Mr. Wright’s first statement indicated that he later learned the shooter was “Cooby,” Defendant’s street name. Other witnesses told Mr. Wright that Defendant was the shooter.

Detective Suire testified that driver’s licenses of individuals other than Defendant were found inside the purple vehicle in which the shooter fled the scene. Defendant was the owner of the purple car. Detective Suire found four nine-millimeter casings near the body. No weapon was ever found.

Keyshawn Henderson was an eyewitness to the shooting death of the victim, his cousin. He was fourteen years old at the time of trial. He and his brother were playing basketball at their grandmother’s house on Dutel Street when they saw Defendant in a purple-blue car. Mr. Henderson saw Defendant approach the victim when he got out of the car, then the victim “was on the ground,” and Defendant was standing beside him. Mr. Henderson identified Defendant at trial.

Mr. Wright testified that he was a part-time barber at the time of this incident. The victim was in the neighborhood and asked Mr. Wright for a haircut. Mr. Wright’s “shop” was an extra room in his mobile home with a window looking out onto the street that allowed him to see people coming and going.

| aThe victim returned in a vehicle and “walked across to [Defendant’s] automobile, and he stood up, put his arm — by him being tall, he put his left arm up on top the car.” Mr. Wright identified Defendant as the shooter at trial. Mr. Wright turned away, then looked back. He heard a shot, looked out the window, and saw the victim fall to the ground. That first shot hit the victim in the face. Defendant “swung his door open, he come [sic] around, and he stood over [the victim] and shot him three more times.” Of these three shots, one hit the victim in the neck, and two hit him in the chest. Mr. Wright told his wife to call 911 and went outside. He explained Defendant “was standing in front of — on the side of his car with the door open. When I come — came to the front part of my trailer, he looked at me, he looked at his gun, through [sic] the gun in the car, jumped in his car, and took off.” The car was purple. The victim had a weak pulse; he did not respond when Mr. Wright tried to raise him so he could try to breathe.

On cross-examination, Mr. Wright testified that he did not know who was behind the wheel of the purple car at the time it arrived. He had previously seen the car in the neighborhood. When asked if he had seen anyone other than Defendant drive the vehicle in the past, Mr. Wright responded, “I guess so.” He stated that he “didn’t know [Defendant] by face and by name, but [he] knew [Defendant] was driving that car.” He could not see the person behind the wheel when the victim approached the vehicle and rested his arm on top of it. Mr. Wright knew Defendant’s mother, and he knew she had at least two sons, whom he knew as “Jeremy” and “Boogie.”

However, when Mr. Wright observed the firing of the gun, he had a-front view of the shooter; the victim’s back was to him. He gave two statements to police, one right after the shooting and another at the police station. The same day |4as the shooting, someone told him the shooter was “Cooby.” He recognized Defendant from a picture on television. Mr. Wright described the shooter in his first statement as a short black male and estimated his height at trial to be five foot nine. When Mr. Wright went to the police station, Detective Suire presented Mr. Wright with three photos from which Mr. Wright identified Defendant. At trial, he had no doubt Defendant was the individual who shot the victim.

Calvin Boudreaux was on the carport of his home, looking down Dutel Street, across the railroad track from Mr. Wright’s home when he saw a purple car stop in front of Mr. Wright’s trailer. He saw the driver get out, and he saw the victim go talk to him. The victim made some hand gestures, and the driver shot him. The driver then shot the victim three or four times while he was on the ground before he got in the car and left. Mr. Boudreaux knew “it was the little Diggs boy,” and he believed he was called “Booby.” However, he was sure the shooter was Defendant because “[he] was looking at him.” Mr! Boudreaux then identified Defendant as the shooter. Mr. Boudreaux gave two statements to police. He did not notice the shooter wearing a red “skin cap,” but he said the shooter was taller than Mr. Wright, who was five feet, nine inches tall. Mr. Boudreaux had no doubt Defendant was the shooter and that it was not Defendant’s brother, Jerion Diggs.

Lieutenant Jason Hebert of the Abbe-ville Police Department testified that he became aware that Mr. Wright knew the identity of the shooter when he first spoke to him. Mr. Wright knew the individual, but he did not know his name. Others told Mr. Wright the name later. Lieutenant Hebert testified that nothing was found in the purple car to tie it directly to the shooting. When Lieutenant Hebert saw the purple car, he knew it belonged to Defendant.

|fiDr. Joel Carney performed the autopsy of the victim on December 14, 2009. The cause of death was multiple gunshot wounds, and the manner of death was a homicide. The first entrance wound was at the front of the base of the neck on the right side; the shot had been fired at close range. The second wound was on the back of the left neck, slightly behind the left ear. This was a distant-range gunshot wound. The projectile was recovered from tissue surrounding the right eye. The third wound was to the left anterior chest. The fourth wound was to the posterior left hip. Both the third and fourth wounds were distant-range wounds. Two of the wounds were immediately life-threatening; one bullet passed through the heart, and another disrupted blood vessels in the base of the neck.

Christopher Henderson of the Acadiana Criminalistics Laboratory qualified as a firearm expert at trial. Abbeville Police submitted four nine-millimeter caliber cartridge cases and six nine-millimeter caliber bullets for analysis. All of the cases and bullets were fired from a single firearm, but no firearm was recovered in this case.

SUFFICIENCY OF THE EVIDENCE

Defendant alleges that the evidence at trial was contradictory, inconsistent, and tainted. Therefore, it was legally insufficient to establish his guilt beyond a reasonable doubt. We disagree.

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational . trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27).

In this instance, “[s]econd degree murder is the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]” La. R.S. 14:30.1. Defendant contends that the evidence was insufficient to prove the elements of second degree murder because Mr. Wright’s description of the shooter in his first statement as a “short black male” did not match the description of the six-feet-tall Defendant. He complains that Mr. Wright never identified him as the shooter until others told him the shooter was' “Cooby.” Further, Defendant argues that Mr. Boudreaux, likewise, did not identify Defendant by name as the shooter until a few days later.

| .^Defendant’s arguments lack merit. Mr. Wright did not initially identify Defendant by name, and he incorrectly believed the names of Ms. Diggs’s sons were “Jeremy” and “Boogie.” He thought the shooter was about his height, which he testified was five feet, nine inches. However, he looked at Defendant in the courtroom at trial and said he was the man he saw shoot the victim. When he saw Defendant’s picture on television, he recognized him. He had no doubt in his mind that Defendant was Mitchell’s murderer.

Mr. Boudreaux knew the shooter simply as “one of the Diggs boys.” He did not describe the shooter as “short,” as Mr. Wright did; he testified the shooter was taller than Mr. Wright. Mr. Boudreaux, like Mr. Wright, had no doubt Defendant was the shooter. A third eyewitness, Mr. Henderson, also identified Defendant as the shooter at trial.

The jury obviously found the testimony of three eyewitnesses to be credible. We agree with the jury’s findings.

LIFE IMPRISONMENT

Defendant contends that he should not be automatically imprisoned for life without the chance or opportunity to ever be released without a meaningful and particularized evaluation of an appropriate sentence in view of State v. Dorthey, 623 So.2d 1276 (La.1993), which dealt with the mandatory sentencing required by our habitual offender laws.

A conviction for second degree murder leads to a mandatory life sentence at hard labor without benefit of parole, probation, or suspension of benefits. La.R.S. 14:30.1(B).

|sTo justify a court’s downward departure from a legislatively mandated sentence, a defendant must show he “is exceptional ... because of unusual circumstances [he] is a victim of the 'legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the' offense, and the circumstances of the case.” State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676 (quoting Judge Plotkin’s concurring opinion in State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 531, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223).

Here, there is nothing “exceptional” about Defendant other than the brutality and intentionality with which he took a human life. He is not a “victim.” D’Jacq-ney W. Mitchell is a “victim.” Whether Defendant’s sentence was “tailored” for him, this court finds every reason to conclude that the punishment fits the crime.

DECREE

Defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: COLEMAN, Justice,

text:
    The HOTBOXXX, LLC v. CITY OF GULFPORT, Mississippi.
    No. 2013-CA-00939-SCT.
    Supreme Court of Mississippi.
    Jan. 8, 2015.

      Blewett W. Thomas, Gulfport, attorney for appellant.
    Jeffrey S. Bruni, Gulfport, attorney for appellee.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. At issue in the instant dispute is whether The Hotboxxx, LLC, has standing, to bring suit challenging the constitutionality of a zoning ordinance passed by the City of Gulfport. Hotboxxx claims that the chancery court erred by finding it had submitted an invalid privilege license application and that, regardless of the invalid license application, it has standing to sue. The City of Gulfport maintains that the application was incomplete and invalid; therefore, Hotboxxx does not have standing. Because Hotboxxx did not properly file an application and because Hotboxxx’s commercial property lease was therefore void, we hold that Hotboxxx indeed lacks standing. Thus, we affirm the judgment of the Harrison County Chancery Court that Hotboxxx’s application was incomplete and invalid and that it had no standing.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 17, 2009, Barry Artz, co-owner of The Hotboxxx, LLC (previously A & P Enterprises, LLC) filed a business privilege license application with the City of Gulfport for the operation of an adult entertainment retailer. At the time, Artz already had signed a lease for commercial office space located at 1820 Pass Road in Gulfport, Mississippi, and Hot-boxxx had generated a business plan. On October 7, 2009, Artz was informed that the Hotboxxx application had been forwarded to the city attorney. On December 1, 2009, Artz received a letter from the city attorney stating that, in preparation for new regulations concerning adult businesses, the city counsel would consider a moratorium on issuing privilege license applications. Subsequently, in January 2010, without accepting or rejecting the Hot-boxxx application, the city placed a six-month moratorium on issuing privilege licenses. On June 22, 2010, the city passed Ordinance Case # 1006PC088 (hereinafter the Ordinance), which contained zoning regulations restricting the areas of town in which adult businesses could be located. The new zoning regulations prevented Hotboxxx from opening its adult business at the location where it had obtained a lease.

¶ 8. On August 16, 2010, Hotboxxx filed a complaint in Harrison County Chancery Court claiming that the ordinance was unconstitutional. The City of Gulfport removed the case to the Federal District Court for the Southern District of Mississippi and filed a motion for dismissal under Federal Rule of Civil Procedure 56, claiming that Hotboxxx had failed to submit a completed application and therefore lacked standing to sue. Hotboxxx then filed an amended complaint, contending it had standing to sue because, under the Mississippi standard for standing, it had a color-able interest. On January 26, 2011, the district court dismissed the case for lack of standing. The district court dismissed the case without prejudice, finding that, under the federal ■ standing requirements, Hot-boxxx’s claim was “speculative and hypothetical” because it was undisputed that the application was not complete.

¶ 4. On February 1, 2011, Hotboxxx filed a new complaint in Harrison County Chancery Court, citing the same issues presented in the first suit. Gulfport then filed a Motion to Dismiss, noting that the case previously had been dismissed by the district court for lack of standing, precluding Hotboxxx from bringing the claims again under the principle of res judicata. Hot-boxxx responded to the Motion to Dismiss, claiming that dismissal without prejudice did not preclude a second suit and that standing requirements are different for Mississippi. Additionally, Hotboxxx claimed that Gulfport has a ministerial duty to advise the applicant of any omissions in its application.

¶ 5. Without a formal hearing on the matter, on July 9, 2012, the chancery court issued Findings of Fact and Conclusions of Law. First, it stated that the application was incomplete, as determined by the district court. Second, under res judicata, it determined the instant case was different from the one originally filed, “but all the material issues that this Court must address have already been addressed by the Federal District Court.” Hotboxxx filed a Motion to Vacate the Findings of Fact, advancing four issues. Hotboxxx claimed the following: the issue of a valid application was contested and not subject to summary judgment, res judicata did not apply, Hotboxxx has standing, and even despite res judicata, Hotboxxx is not barred from pleading a new federal civil rights claim. Finding merit in Hotboxxx’s motion, the chancery court then bifurcated the trial, stating that there was a need to hear first the issue of whether Hotboxxx had submitted a valid privilege license application.

¶ 6. At the hearing from February 25, 2018, to February 26, 2013, Artz claimed that, when he submitted his application, he knew of a flow chart that indicated his license would be processed within a ten-day period. Artz also claimed that, when he submitted his application, he submitted the whole, complete application. Gulfport claimed that the application was not signed or notarized as required. Both parties disputed which version of the application— three versions existed — was actually submitted to the city. At the close of the hearing, the chancellor made a bench rub ing that Exhibit 4 was the privilege application submitted to the city, and it was incomplete. Subsequently, on March 28, 2013, in his Final Judgment and Order of Dismissal with Prejudice under Rule 12 or Rule 56, the chancellor stated that an incomplete application had been submitted and that Hotboxxx had no standing to sue. He then re-adopted and incorporated his July 9, 2012, Findings of Fact and Conclusions of Law for any remaining issues. Hotboxxx appealed.

STANDARD OF REVIEW

¶ 7. Findings of a chancellor will not be disturbed on review unless the chancellor was “manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Bluewater Logistics, LLC v. Williford, 55 So.3d 148, 166 (Miss.2011) (quoting Powell v. Campbell, 912 So.2d 978, 981 (Miss.2005)). The Court will apply abuse of discretion when reviewing a chancellor’s decision. Mississippi Power Co. v. Hanson, 905 So.2d 547, 549 (Miss.2005) (citing McNeil v. Hester, 753 So.2d 1057, 1063 (Miss.2000)). For questions of law, the Court will apply the de novo standard of review. Id.

DISCUSSION

¶ 8. On appeal, Hotboxxx raises four issues:

(1) Whether the Harrison County Chancery Court committed reversible error when it adjudicated the issue of the Appellant’s standing to challenge a Gulfport city ordinance solely on the basis of whether the Appellant had submitted a “valid license application” to the City of Gulfport.
(2) Whether the Harrison County Chancery Court committed reversible error when it adjudicated that the Federal District Court’s dismissal without prejudice of the Appellant’s initial state court lawsuit was res ju-dicata on the Appellant’s second chancery court lawsuit.
(3) Whether the Harrison County Chancery Court committed reversible error when it failed to adjudicate the City of Gulfport’s Motion for Summary Judgment under the standards governing dismissal under Mississippi Civil Procedure Rule 56.
(4) Assuming it was proper for the Harrison County Chancery Court to adjudicate that the Appellant’s original claims were barred by res judica-ta, the chancery court committed reversible error when it failed to allow the Appellant to proceed on its subsequently discovered federal civil rights claims that were neither known nor asserted in the appellant’s initial complaint.

The first two issues brought by Hotboxxx on appeal are dispositive. The Court considers the second issue first because, if res judicata applies, the parties had no right to appeal the holding of the federal district court. Concluding res judicata does not apply, the Court then considers the issue of whether Hotboxxx submitted a valid application and whether, regardless of the validity of the application, Hotboxxx has standing. The Court holds that Hot-boxxx’s application is invalid, and, accordingly, Hotboxxx lacks standing.

(2) Whether the Harrison County Chancery Court committed reversible error when it adjudicated that the Federal District Court’s dismissal without prejudice of the Appellant’s initial state court lawsuit was res ju-dicata on the Appellant’s second chancery court lawsuit.

¶ 9. The City of Gulfport contends that the doctrine of res judicata prevents Hotboxxx from relitigating the issues because the same issues were litigated and adjudicated previously before the district court. Hotboxxx argues that res jttdicata does not apply because there exists neither an adjudication by a court of competent jurisdiction nor a decision on the merits.

¶ 10. Res judicata applies when there is a final judgment on the merits. The Court employs four identities to determine whether res judicata applies: “(1) identity of the subject matter of the action, (2) identity of the cause of action, (3) identity of the parties to the cause of action, and (4) identity of the quality or character of a person against whom the claim is made.” Dunaway v. W.H. Hopper & Assocs., Inc., 422 So.2d 749, 751 (Miss.1982). If all four of the identities are present, res judicata applies. The Court consistently has held that dismissal without prejudice is not an adjudication on the merits, and therefore, res judicata does not apply. Boston v. Hartford Accident & Indem. Co., 822 So.2d 239, 248-49 (Miss.2002), overruled on other grounds by Capital City Ins. Co. v. G.B. ‘Boots’’ Smith Corp., 889 So.2d 505 (Miss.2004); Members of Democratic Executive Comm., Lauderdale County v. Hatcher, 250 Miss. 871, 168 So.2d 533, 535 (1964) (“The effect of the words ‘without prejudice’ is to prevent the decree of dismissal from operating as a bar to a subsequent suit.”).

¶ 11. The district court dismissed the case between Hotboxxx and Gulfport, stating: “[T]he Court finds that [Hotboxxx] does not have standing to pursue a facial challenge of the ordinance. Thus, the Court lacks jurisdiction.... As a result, the Court will dismiss [Hotboxxx’s] claims without prejudice.” (Emphasis added.) Thus, the federal court’s dismissal does not bar Hotboxxx from refiling the case.

¶ 12. Further, the chancery court erred in its Findings of Fact and Conclusions of Law when it stated, “[A]ll material issues that this Court must address have already been addressed by the Federal District Court.” Mississippi employs a different standard for standing than federal courts; therefore, the issue of standing must be determined under Mississippi’s standard.

(1) Whether the Harrison County Chancery Court committed reversible error when it adjudicated the issue of the Appellant’s standing to challenge a Gulfport city ordinance solely on the basis of whether the Appellant had submitted a “valid license application” to the City of Gulfport.

¶ 13. Hotboxxx raises the issue of whether it lacks standing to challenge an ordinance solely on the basis of an invalid license application. Although Hotboxxx argues in its brief that the license application was valid, it does not directly bring the validity issue on appeal. For the sake of thoroughness, we first address the issue of whether the license application is invalid. Then we address the issue as stated in Hotboxxx’s brief: whether Hotboxxx has standing even if the license application is invalid. We conclude that the license application was incomplete and therefore invalid and that Hotboxxx accordingly lacks standing.

A. Whether the license application is invalid.

¶ 14. The Court will not interfere with the findings of a chancellor unless the findings were “manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Bluewater Logistics, LLC v. Williford, 55 So.3d 148,166 (Miss.2011) (quoting Powell v. Campbell, 912 So.2d 978, 981 (Miss.2005)). The Chancery Court of Harrison County stated in its Final Judgment that it had “considered [the] testimony of parties and other witnesses as well as documentary proof and evidence and argument of counsel” and, further, that it had “judged and weighed the credibility and veracity of the witnesses [and] documentary evidence submitted” to conclude that Hotboxxx had not submitted a valid and proper application. The Court upholds the chancery court’s finding that the privilege license application was incomplete and invalid.

¶ 15. On February 25 and 26, 2013, the chancery court held a hearing on the issue of whether the privilege license application was valid. At the hearing, testimony went back and forth concerning which version of the three versions presented was actually the privilege license application submitted to the city. Artz claimed that the application introduced as Exhibit 11 was a photocopy of the application introduced as Exhibit 4, and Exhibit 11 contained the additional pages missing from Exhibit 4. In his bench ruling, the chancellor ultimately concluded, based on the testimony and evidence, that the privilege license application marked as Exhibit 4 was the actual application submitted to the city on September 17, 2009, and Exhibit 4 was incomplete and thus invalid. We can discern no reversible error in the chancellor’s finding.

¶ 16. The record contains instructions for completing a privilege application. The instructions read, in pertinent part: Application must be signed by owner or authorized agent.

Print name under signature.
Enter title of applicant.
Application must be signed in the presence of a notary, who will complete the affidavit section or signed in the presence of an authorized person in the General Finance Department. If signed in office, the staff person will complete the affidavit portion.

(Emphasis added.) Exhibit 4 is missing the required signature by the applicant and is not notarized or completed by a member of the General Finance Department. The instructions clearly require the application to be signed in the presence of the General Finance Department or otherwise notarized. Artz testified he did not sign the application in the presence of the department, and it was not notarized. Thus, regardless of any discrepancies about which exhibit was the submitted application, the application was not complete.

B. Whether, regardless of the invalid application, Hotboxxx has standing.

¶ 17. Hotboxxx argues that the determination of standing should not be based solely on the whether it submitted a business license application to the City of Gulfport. Hotboxxx cites Fordice v. Bryan, 651 So.2d 998 (Miss.1995), for the rule that standing should be based on whether Hotboxxx “assert[s] a colorable interest in the subject matter of the litigation or experience[s] an adverse effect from the conduct of the defendant....” Id. at 1003. Hotboxxx argues that its lease of the commercial building constitutes a colorable interest, giving it standing to challenge the zoning ordinance restriction. Hotboxxx states that its chosen location for the business is in violation of the ordinance, and therefore, it experienced an adverse effect from the enactment of the ordinance.

¶ 18. The City of Gulfport argues that standing requires a party to point to specific evidence illustrating an injury in fact. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 563, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Gulfport states that Hotboxxx did not have an injury because Hotboxxx submitted an improper application; therefore, regardless of the Ordinance, Hotboxxx was not able to engage in the business. Gulfport then argues that the colorable interest claims by Hotboxxx do not prove an injury because they must be supported either with evidence found in the record or presented at trial, and Hot-boxxx’s lease states it is void if it is unable to obtain a license.

¶ 19. Standing is a jurisdictional issue. City of Madison v. Bryan, 763 So.2d 162, 166 (Miss.2000); In re City of Biloxi, 113 So.Sd 565, 570 (Miss.2013). Thus, it may be raised by the Court sua sponte or by any party at any time, and the standard of review is de novo. Bryan, 763 So.2d at 166; In re City of Biloxi, 113 So.3d at 570. The district court found a lack of standing for Hotboxxx to challenge the constitutionality of the ordinance because Hotboxxx had not submitted a valid license application. Subsequently, in its Final Judgment after the February 25-26, 2013, hearing, the chancery court found that Hotboxxx had failed to submit a proper license application, and therefore, it had no standing.

¶ 20. The Supreme Court of the United States has held that “the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law, as when they are called upon to interpret the Constitution or ... a federal statute.” ASARCO Inc. v. Radish, 490 U.S. 605, 617, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989). In Mississippi, standing depends on whether the plaintiff asserts a “colorable interest in the subject-matter of the litigation or experience[s] an adverse effect from the conduct of the defendant, or as otherwise provided by law.” Kinney v. Catholic Diocese of Biloxi, Inc., 142 So.3d 407, 412-13 (Miss. 2014) (quoting Schmidt v. Catholic Diocese of Biloxi, 18 So.3d 814, 826-27 (Miss. 2009)). Thus, while standing in federal court requires an “injury in fact,” standing in Mississippi courts is more liberal and requires a “colorable interest in the subject matter.” See Kinney, 142 So.3d at 412.

¶21. The Court has further defined a colorable interest as “whether the particular plaintiff had a right to judicial enforcement of a legal duty of the defendant or ... whether a party plaintiff ... can show in himself a present, existent actionable title or interest, and demonstrate that this right was complete at the time of the institution of the action.” City of Picayune v. S. Reg’l Corp., 916 So.2d 510, 526 (Miss.2005) (internal citation omitted) (emphasis added); see also In re City of Biloxi, 113 So.3d at 570. An inchoate or not fully developed right is not sufficient. Cumbest v. Commissioners of Election of Jackson County, 416 So.2d 683, 687 (Miss. 1982) (citing American Book Co. v. Vandiver, 181 Miss. 518, 178 So. 598, 599 (1938)).

¶ 22. As discussed above, Hot-boxxx did not submit a valid license application, but Hotboxxx maintains that it had signed a lease and claims it was fully registered as a business entity with a business plan. Although Hotboxxx may have been registered as a business with a business plan, the signed lease is .the only evidence in the record linking Hotboxxx to the zone of the city affected by the ordinance.

¶ 23. The Court also has held that “[A]ny property owner or person having an interest in property which is or may be affected by a permit or variance illegally issued or denied is an aggrieved party and may apply to the court for relief.” Belhaven Improvement Ass’n, Inc. v. City of Jackson, 507 So.2d 41, 46 (Miss.1987) (quoting Mayor, etc., City of Pontotoc v. White, 230 Miss. 698, 93 So.2d 852, 856 (1957)). The lease dated July 14, 2009, for 1820 Pass Road, Gulfport, Mississippi, at first glance appears to present an interest in property affected by the ordinance. However, the lease provides, “In the event that the Lessor cannot obtain the necessary business licenses and or approvals from the City of Gulfport to operate their business, this contract shall become void.” Although Hotboxxx had an interest in land affected by the ordinance, when Hotboxxx failed to submit a valid application and failed to obtain a license, the lease became void, and Hotboxxx no longer had an interest in the land.

¶ 24. The Court has stated: “[Standing must exist when litigation is commenced and must continue through all subsequent stages of litigation, or the case will become moot.” In re City of Biloxi, 113 So.3d at 572 (emphasis added). Similarly, the Court in Bryan determined that Bryan did not have standing to appeal the city’s veto of his site plan because his option to purchase the land had expired, and he did not have “any other encumbrance upon the property.” Bryan, 763 So.2d at 166. In the instant case, Hotboxxx’s lease was pendent on obtaining the appropriate licenses. The chancery court held the application for the privilege license to be invalid, and we upheld that finding. Thus, the lease is void, and Hotboxxx has no interest in the land, and therefore, under Mississippi case law, no standing.

¶ 25. Alternatively, Hotboxxx cites to the dissent in Board of Trustees of State Institutions of Higher Learning v. Van Slyke, 510 So.2d 490, 496 (Miss.1987), to claim that “Mississippi courts are able to grant standing to parties who seek review of governmental actions.” Although parts of the argument made by Justice Prather were later adopted by the Court, Hotboxxx takes Justice Prather’s argument out of context. The Van Slyke I dissent and the later majority in Van Slyke v. Board of Trustees of State Institutions of Higher Learning, 613 So.2d 872 (Miss.1993), further stated:

The argument persists that citizens should have the authority to challenge the constitutionality and/or review of governmental action, and if individuals do not have such authority, how else may constitutional conflicts be raised. This is particularly true when a public official charged with such a duty fails to act. Constitutional litigation by private citizens may be maintained in cases where there is no probability [of the validity] of the statute being challenged by one of the class discriminated against; or, when a decision on validity would not be necessary, one not within the class may question the validity of the state.

Van Slyke II, 613 So.2d at 875; see also Van Slyke I, 510 So.2d at 497 (Prather, J. dissenting) (quoting Miller v. Lamar Life Ins. Co., 158 Miss. 753, 131 So. 282 (1930)).

¶ 26. Here, a public official has not failed to act; the question is the constitutionality of a city ordinance. Moreover, here, a party with an interest in land affected by the ordinance’s zoning regulations would have standing to sue. The Court in Board of Trustees of State Institutions of Higher Learning v. Ray, 809 So.2d 627 (Miss.2002), similarly limited the general standing rule, finding no colorable interest for standing. Ray, 809 So.2d at 632 (“Here, a public official has not refused to act; in fact, in this particular case there has been much activity on the part of those political bodies involved. This certainly lessens support for allowing action by uninvolved citizens.”). Thus, under the instant facts, Van Slyke II’s general rule that uninvolved citizens should have the authority to challenge the constitutionality of governmental action does not hold much strength, and it does not generate a color-able interest for Hotboxxx to assert standing.

CONCLUSION

¶ 27. Dismissal without prejudice by the federal district court did not preclude the instant case from being brought in chancery court. The chancellor’s finding that the privilege license application was invalid was not clearly erroneous; therefore, the Court upholds the chancellor’s finding. Even under the colorable interest standard, the invalid license application and subsequent void lease do not give Hot-boxxx a colorable interest to challenge the constitutionality of the ordinance. Thus, we affirm the chancery court’s holding that Hotboxxx does not have standing to challenge the constitutionality of the ordinance.

¶ 28. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. LAMAR, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: LAMAR, Justice,

text:
    TALLAHATCHIE GENERAL HOSPITAL; Tallahatchie General Hospital Extended Care Facility and Barbara Criswell, FNP v. Susan Edwards HOWE and Wayne Edwards, Wrongful Death Beneficiaries of Myrtice Edwards, Deceased.
    No. 2013-IA-01095-SCT.
    Supreme Court of Mississippi.
    Jan. 8, 2015.

      Gaye Nell Currie, Rex M. Shannon, III, Jackson, attorneys for appellants.
    Alan D. Lancaster, Winona, J. Ryan Taylor, William Liston, Winona, attorneys for appellees.
   LAMAR, Justice,

for the Court:

¶ 1. Tallahatchie General Hospital (“TGH”) moved to dismiss a medical malpractice claim because the plaintiffs failed to provide it with proper presuit notice before the expiration of the one-year statute of limitations. The trial court denied the motion, finding that the filing of the complaint tolled the statute-of limitations, despite the plaintiffs’ failure to provide proper presuit notice. We agree with the trial court and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Myrtice Edwards died at TGH on June 9, 2007. On October 17, 2007, Edwards’s wrongful-death beneficiaries (hereinafter “Howe”) provided a Notice of Claim to the Tallahatchie County Chancery Clerk and to the Tallahatchie County attorney. But Howe did not provide notice to TGH’s chief executive officer. (CEO), Bobby Joe Brunson, as required by Mississippi Code, Section 11-4:6 — 11(1)—(2). On June 2, 2008, Howe sued TGH for medical malpractice, and she served Brun-son with a copy of the complaint.

¶ 3. TGH moved to dismiss the complaint, arguing that Howe had failed to provide its CEO with presuit notice, and that her complaint was now barred by the one-year statute of limitations. Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 89 (Miss.2010). The trial court denied the motion, finding that Howe had “substantially complied” with the notice statute. Id. at 89-90. This Court granted TGH’s petition for interlocutory appeal. Id. at 90.

¶ 4. On appeal, this Court reversed the trial court’s order, finding that Howe’s “substantial compliance” was insufficient. Id. at 90-92. But this Court declined to offer an “advisory opinion” on whether the statute of limitations had run, finding that issue was “ ‘premature and not ripe for appellate review.’ ” Id. at 93 (citation omitted). This Court remanded the case to the trial court with orders to enter a judgment “consistent with” its opinion. Id.

¶ 5. On remand, the trial court — relying on Price v. Clark, 21 So.3d 509, 522 (Miss. 2009) — dismissed Howe’s complaint without prejudice, finding that “a properly served complaint, albeit a complaint that is wanting of proper pre-suit notice, should still serve to toll the statute of limitations until there is a ruling from the trial court.” The trial judge entered his order of dismissal on March 4, 2011. On March 5, 2011, Howe served a Notice of Claim on TGH’s CEO, and TGH denied Howe’s claims via letter on March 18, 2011. On March 23, 2011, Howe filed her second complaint, and it was timely served on TGH’s CEO.

¶ 6. TGH moved to dismiss the second complaint with prejudice, arguing that, because “[n]o notice as required by the [Mississippi Tort Claims] Act was provided to Tallahatchie General Hospital within one year after the date of Ms. Edwards’ death” ... “the sovereign immunity of Tallahat-chie General Hospital and its employees has not been waived” and ... the “Plaintiffs have no right of action against these Defendants.” The trial court again denied TGH’s motion, and this Court again granted TGH’s petition for interlocutory appeal.

ANALYSIS

I. Standard of Review

¶ 7. The proper application of the Mississippi Tort Claims Act (“MTCA”) is a question of law which this Court reviews de novo. Howe, 49 So.3d at 90. A de novo standard of review also is employed when reviewing a trial court’s grant or denial of a motion to dismiss. Spencer v. State, 880 So.2d 1044, 1045 (Miss.2004).

II. Howe’s first complaint tolled the statute of limitations until the trial court ruled.

¶ 8. “The basic principle of sovereign immunity is that the ‘king can do no wrong.’” Howe, 49 So.3d at 90 (quoting Mohundro v. Alcorn County, 675 So.2d 848, 852 (Miss.1996)). So the “State is free from any liabilities unless it carves an exception,” and these exceptions are found in tort claims acts. Howe, 49 So.3d at 90. In Mississippi, the State has waived its immunity and the immunity of its political subdivisions “from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment” through the provisions of the MTCA. Miss.Code Ann. § 11-46-5(1) (Rev.2012).

¶ 9. The MTCA provides the exclusive civil cause of action against a governmental entity, and “any claim made or suit filed against a governmental entity or its employee to recover damages for any injury for which immunity has been waived under [the MTCA] shall be brought only under the provisions of [the MTCA].” Miss.Code Ann. § 11-46-7(1). Specifically, a plaintiff suing a governmental entity “must file a notice of claim with the chief executive officer of the governmental entity” at least ninety days before filing his or her complaint. Miss.Code Ann. § 11^16-11(1). Plaintiffs also must file their complaint within one year of the “tortious, wrongful or otherwise actionable conduct.” Miss.Code Ann. § ll-46-ll(3)(a). The one-year statute of limitations is tolled for ninety-five days when a notice of claim is filed with the appropriate party before the expiration of the one-year period. Id.

¶ 10. TGH is a community hospital in Tallahatchie County, Mississippi, and therefore is a “ “political subdivision” of the State.” Howe, 49 So.3d at 91. Accordingly, Howe is “subject to the notice requirements and statutes of limitations provided in Mississippi Code Section 11-46-11.” Id. Here, it is undisputed that:

1. Howe provided a Notice of Claim to the Tallahatchie County Chancery Clerk and to the Tallahatchie County attorney on October 17, 2007. She failed to provide notice to TGH’s CEO;
2. Howe filed and served her first complaint on June 2, 2008;
3. Howe’s first complaint was dismissed because she failed to provide TGH with proper presuit notice;
4. Unless it was tolled, the one-year limitation period for Howe’s claim would have expired on June 9, 2008; and
5. Howe did not give TGH proper pre-suit notice until March 5, 2011.

¶ 11. So the sole issue in this case is whether the one-year statute of limitations was tolled on June 2, 2008, when Howe filed her first complaint, despite not having given TGH proper presuit notice. This Court previously addressed this exact issue in Price v. Clark, 21 So.3d 509 (Miss. 2009). There, the plaintiff sued several medical providers subject to the MTCA for failing to timely diagnose her husband with a pituitary tumor. Id. at 512-13. The plaintiff filed her complaint well before the one-year statute of limitations expired, but also before she provided the MTCA defendants with proper presuit notice. Id. at 514; 521. The trial court ultimately dismissed the complaint for failure to provide proper presuit notice and gave it no legal effect. Id. at 521. The trial court concluded that the complaint had no tolling effect and that the plaintiffs MTCA claims were therefore time-barred, and he dismissed the complaint with prejudice. Id.

¶ 12. On appeal, this Court reversed, holding that “a properly served complaint — albeit a complaint that is wanting of proper pre-suit notice — should still serve to toll the statute of limitations until there is a ruling from the trial court.” Id. at 522. This Court concluded its analysis of the issue by stating: “Because Price failed to comply with the requisite notice requirements, dismissal was the proper remedy; however, the trial court erred in dismissing these defendants with prejudice, given that the complaint served to toll the statute of limitations until the trial court’s July 2006 ruling.” Id.

¶ 13. As in Price, Howe filed a complaint before the expiration of the one-year statute of limitations. So the statute of limitations was tolled until the trial court dismissed her case without prejudice for her failure to provide TGH with proper presuit notice. The day after her case was dismissed, Howe provided TGH with proper presuit notice, thereby tolling the limitation period again. TGH denied Howe’s claims quickly, and she timely and properly filed and served her second complaint. For the foregoing reasons, we affirm the trial court’s order denying TGH’s motion to dismiss.

CONCLUSION

¶ 14. Filing a complaint tolls the one-year statute of limitations under the MTCA. Howe’s second presuit notice was proper, and she filed her second complaint within the time remaining under the statute of limitations. We therefore affirm the Tallahatchie Circuit Court’s decision to deny TGH’s motion to dismiss.

¶ 15. AFFIRMED.

WALLER, C.J., DICKINSON, P.J., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Bobby Joe Brunson did receive a copy of the Notice of Claim served on the Tallahat-chie County Chancery Clerk on or about November 27, 2007.

      . Edwards’s wrongful-death beneficiaries also sued Tallahatchie General Hospital Extended Care Facility and Barbara Criswell.