author: SUSAN M. CHEHARDY, Chief Judge. JOHNSON, J.,

text:
    STATE of Louisiana v. Rodell ROBINSON.
    No. 14-KA-222.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne M. Wallis, Myles Ranier, Jeffrey Hufft, Assistant District Attorneys, Gretna, Louisiana, for Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, Martin E. Regan, Jr., Nisha Sandhu, Regan & Sandhu, P.L.C., New Orleans, Louisiana, for Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERT M. MURPHY.
   SUSAN M. CHEHARDY, Chief Judge.

| «¿Defendant appeals his conviction of second degree murder. For the reasons that follow, we affirm.

Facts and Procedural History

On Sunday, July 15, 2012, Deputy Miguel Dukes of the Jefferson Parish Sheriffs Office responded to reports of a shooting on Alex Kornman Boulevard in Harvey, Louisiana. Upon the deputy’s arrival, he observed the body of Fred Brown, the victim in this case, lying in a pool of blood with multiple gunshot wounds. Seven 9 mm casings were recovered on the scene and were determined to have been fired from the same weapon. The victim was transported to the hospital and subsequently died. Dr. Susan Garcia, an expert in the field of forensic pathology, performed the autopsy and classified the victim’s manner of death a homicide. The victim had sustained multiple gunshot wounds, of which one to the head was fatal.

In the days immediately following the murder, Detective Travis Eserman of the Jefferson Parish Sheriffs Office spoke with several witnesses. One neighbor, Nicole Henry, refused to give a recorded statement, but informed the detective that she heard gunshots, and looked up to see defendant shoot the victim and run off. 14However, at trial Ms. Henry changed her story, testifying that she did not see anything, but heard only gunshots.

Another neighbor, Chris Henry, testified that the victim came to her residence on July 15, 2012 to sell her “a pill.” Ms. Henry declined to purchase the pill, but accompanied the victim “to the cut where everybody was standing at.” Here, Ms. Henry observed defendant, his brother, and the victim “fussing.” She heard defendant say, “I got a gun, and I’ll kill you.” The victim replied: “You’re not the only one with a gun.” As the three men continued to argue, Ms. Henry asked defendant’s father, who was also present, to stop them from fighting. The victim began to remove his shirt “like he was going to fight” when defendant pulled out a gun and shot the victim several times. Ms. Henry subsequently identified defendant, his brother, and his father from photographic lineups.

Rhonda Honor, defendant’s father’s girlfriend who resided with him at the time on Alex Kornman Blvd., testified that in the evening of July 15, 2012, she stepped outside to find defendant, his brother, and his father standing outside the apartment. She stepped back inside briefly and when she returned, the three men were walking down the street. Within moments, she heard gunshots and saw defendant, his brother, and his father running back towards her. Although she did not see defendant with a gun that night, Ms. Honor testified that she had seen him with one in the past. She also identified defendant, his brother, and his father from photographic lineups.

On July 18, 2012, defendant was placed under arrest at his residence, where a search failed to turn up any evidence linking him to the victim’s murder. At the same time, a search of defendant’s father’s house was conducted, which also failed to turn up any relevant evidence. After being advised of his Miranda rights, defendant executed a rights of arrestee form, in which he agreed to waive his |,.¡rights. Defendant refused to have his statement taped, but spoke with Detective Eserman and Detective Solomon Burke. He explained that he had been with his girlfriend at her house until 11:00 p.m. on July 15, 2012, that he had not seen his brother that day, and that he knew nothing about the murder.

Officers spoke with defendant’s girlfriend, Carrione Girod, and found her story to be inconsistent with defendant’s. She testified that in the early evening of July 15, 2012, her cousin picked her up from her place of work, CiCi’s Pizza on Airline Highway in Metairie, and dropped her off to her sister’s apartment at the Summerfield Apartments on Lapalco Boulevard in Harvey. John Wendelschaefer, the general manager of CiCi’s, authenticated Ms. Girod’s time card for July 15, 2012, which reflected that she clocked in at 12:00 p.m. and clocked out at 3:18 p.m. that day. Ms. Girod explained that defendant picked her up from her sister’s around 9:00 p.m. and they proceeded to his uncle’s house in Harvey where they spent the evening.

On December 13, 2012, a Jefferson Parish Grand Jury indicted defendant with the second degree murder of Fred Brown, a violation of La. R.S. 14:30.1. On August 28, 2013, after a three-day trial, a twelve-person jury found defendant guilty as charged. On September 4, 2013, defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This timely appeal followed.

Discussion

In defendant’s sole assignment of error, he argues the evidence was insufficient to support the guilty verdict because the jury improperly utilized impeachment evidence as substantive evidence of guilt. Nicole Henry, who initially gave a statement to the police inculpating defendant, later recanted at trial. Defendant contends that Ms. Henry’s statement to police, while admissible as | (¡impeachment evidence, was not admissible as substantive evidence of guilt pursuant to La. C.E. art. 607. Defendant further asserts that the trial court erred by not instructing the jury as to the limited scope of this evidence.

We first address the sufficiency of the evidence. See State v. Hearold, 603 So.2d 731, 734 (La.1992) (“When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.”). In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert, denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885.

This directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact’s rational credibility calls, evidence weighing, and inference drawing. State v. Caffrey, 08-717, p. 4 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297. This deference to the fact finder does not permit a reviewing court to decide whether it believes a witness or whether the conviction is contrary to the weight of the evidence. Id. Indeed, a reviewing court errs by substituting its appreciation of the evidence and the credibility of witnesses for that of the fact finder and overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 07-2806, pp. 1-2 (La.1/21/09), 1 So.3d 417, 418. As a result, |7under the Jackson standard, a review of the record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at the trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20, pp. 6-7 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. Caffrey, supra. Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in' whole or in part, the testimony of any witness. See State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert, denied, 546 U.S." 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915, p. 11 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-0987 (La.1/30/09), 999 So.2d 745.

Defendant was convicted of second degree murder, a violation of La. R.S. 14:30.1. Second degree murder is defined, in pertinent part, as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific intent is 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. State v. Seals, 09-1089, pp. 13-14 (La.App. 5 Cir. 12/29/11), 83 So.3d 285, 306, unit denied, 12-0293 (La.10/26/12), 99 So.3d 53, cert. denied, — U.S. —, 133 S.Ct. 2796, 186 L.Ed.2d 863 | s(2013) (citing La. R.S. 14:10(1)). The determination of specific intent is a question of fact. Id., 09-1089 at 14, 83 So.3d at 306. Specific intent may be inferred from the circumstances and frdm the defendant’s actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. Id. Further, a specific intent to kill may be inferred from the intentional use of a deadly weapon such as a knife or gun. State v. Cochran, 09-85 (La.App. 5 Cir. 6/23/09), 19 So.3d 497, 508, writ denied, 09-1742 (La.3/26/10), 29 So.3d 1249; see also State v. Gonzalez, 07-449, p. 8 (La. App. 5 Cir. 12/27/07), 975 So.2d 3, 8, writ denied, 08-0228 (La.9/19/08), 992 So.2d 949 (“The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill.”).

In addition to proving each statutory element of the crime charged, the State must also prove the identity of the perpetrator. State v. Williams, 08-272, p. 4 (La.App. 5 Cir. 12/16/08), 3 So.3d 526, 529, writ denied, 09-0143 (La.10/16/09), 19 So.3d 470. Thus, in order to carry its burden of proof, the State is required to negate any reasonable probability of mis-identification. Id. Positive identification by only one witness is sufficient to support a conviction. Id.

In the instant case, Chris Henry testified that she saw defendant pull out a gun and shoot the victim several times. Ms. Henry subsequently identified defendant in a photographic lineup and in open court. We find this testimony, when viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact beyond a reasonable doubt that defendant acted with the specific intent to kill or inflict great bodily harm.

In addition to this testimony, Detective Eserman testified that Nicole Henry told him days after the murder that she saw defendant shoot the victim. However, at trial, Ms. Henry changed her story, claiming she did not see anything, but heard |flonly gunshots. It is Ms. Henry’s statement to the police that defendant contends on appeal was improperly used as substantive evidence of guilt at trial. Since we have found the testimony of Chris Henry was sufficient to support defendant’s conviction, it follows that Nicole Henry’s testimony is cumulative. Nevertheless, we find it was admissible to be used as substantive evidence of guilt and that a limiting instruction was not warranted.

We addressed a similar argument in State ex rel D.W., 09-855 (La.App. 5 Cir. 9/14/10), 47 So.3d 1048. There, the juvenile defendant, who had been adjudicated delinquent on two counts of attempted first degree murder, challenged on appeal, among other things, the sufficiency of the evidence. Id., 47 So.3d 1048, 1052. The evidence supporting his convictions consisted primarily of eyewitness testimony. See id., 47 So.3d at 1056-57. At trial, detectives testified that they obtained statements from eyewitnesses at the scene who identified the defendant as a shooter. Id., 47 So.3d at 1051. Yet these eyewitnesses later recanted their identifications at trial, claiming they did not see the defendant shoot the victims. Id.

On appeal, the defendant argued that the eyewitnesses’ statements to the police could not be used as substantive evidence of guilt pursuant to La. C.E. art. 607(D)(2). Id., 47 So.3d at 1058. Indeed, La. C.E. art. 607(D)(2) permits the introduction of a prior inconsistent statement, even if it is inadmissible hearsay, but only for the limited purpose of attacking the credibility of a witness. See State v. Cousin, 96-2973 (La.4/14/98), 710 So.2d 1065, 1069. However, an exception to this general rule exists for cases in which a witness’ prior inconsistent statement also constitutes a prior statement of identification for purposes of La. C.E. art._|ji801(D)(l)(c). State v. Johnson, 99-3462 (La.11/3/00), 774 So.2d 79, 80. Such a statement is not hearsay, may be used assertively as substantive evidence of guilt, and may be established through the testimony of one to whom the statement was made. See State v. Stokes, 01-2564 (La.9/20/02), 829 So.2d 1009, 1010. This is so even if the witness denies making an identification or fails or is unable to make an in-court identification. Id.

In D.W., because the witnesses’ prior inconsistent statements were statements of identification, we found them to be admissible as substantive evidence of guilt in accordance with the exception as provided by La. C.E. art. 801(D)(1)(c). See D.W., 47 So.3d at 1058-61. Including the eyewitnesses’ prior statements in our sufficiency analysis, we concluded that the evidence was sufficient to support the defendant’s convictions. Id., 47 So.3d at 1057.

Similarly, in the instant case, we find Nicole Henry’s statement to Detective Es-erman that she saw defendant shoot the victim was a statement of identification and was thus admissible as substantive evidence of guilt. Accordingly, we find no error in the trial court’s omission of a limiting instruction regarding this testimony. Moreover, the record reflects that defendant neither requested a special instruction nor objected to the jury instructions and so failed to preserve this issue for appellate review. See State v. Elliott, 04-986 (La.App. 5 Cir. 2/15/05), 896 So.2d 1110, 1113, writ denied, 05-2182 (La.5/26/06), 930 So.2d 11 (“Under La. C.Cr.P. art. 801(C), a party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error.”). This assignment of error is without merit.

| n Errors Patent

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920, and have found a discrepancy in the State of Louisiana Uniform Commitment Order. The Uniform Commitment Order incorrectly states that the offense date was July 19, 2012 and that the adjudication date was September 4, 2013. The indictment and facts adduced at trial reflect that the offense occurred on July 15, 2012; and the record indicates that the jury returned its verdict on August 28, 2013.

In order to ensure an accurate record, we remand this matter and order the Uniform Commitment Order be corrected to reflect the correct offense and adjudication dates. See State v. Long, 12-184, p. 10 (LaApp. 5 Cir. 12/11/12), 106 So.3d 1136, 1142. Further, the clerk of the district court is ordered to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ legal department. Id. (citing La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam)).

Decree

For the foregoing reasons, defendant’s conviction and sentence are affirmed. The matter is remanded for correction of the Uniform Commitment Order.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF UNIFORM COMMITMENT ORDER.

JOHNSON, J., concurs with reasons.

JOHNSON, J.,

concurs with reasons.

hi concur with the majority opinion in the aspect that Defendant’s conviction and sentence should be affirmed. However, I disagree with the majority opinion’s reliance on State ex rel. D.W., 09-855 (La. App. 5 Cir. 9/14/10); 47 So.3d 1048 (Johnson, J., dissenting), for the issue of whether Nicole Henry’s statement to the police could have been admitted for use as substantive evidence of Defendant’s guilt. Although I agree that Nicole’s prior inconsistent statement was properly admitted for use as substantive evidence, I find that this case is distinguishable from the D.W. case.

At trial, Nicole Henry, as a State witness, testified that she did not observe the shooting and did not see anyone with a gun because she is nearsighted and could not see the scene of the shooting. She stated that she only heard gunshots. Ms. Henry attested that she spoke with Detective Travis Eserman after the shooting; however, she insisted she did not tell Det. Eserman that she saw Defendant shoot the victim or see him flee on foot. Ms. Henry further testified that, even though Det. Eserman harassed her, she did not give a recorded statement to him because she did not see anything. Later during the trial, Det. Eserman testified that Ms. Henry told him she heard gunshots and saw Defendant shoot the victim and run. Det. Eserman also testified that Ms. Henry refused to give a recorded statement, but she did identify Defendant in a lineup.

|gIn D.W., supra, the two eyewitnesses testified at trial that they did not see the defendant shoot the victim. Both of the witnesses were presented with their prior statements given to detectives and were provided with an opportunity to admit to those statements, which one witness denied making the prior statement. In my dissent, I cited the law stating, “before prior inconsistent statements can be accepted as nonhearsay, and therefore probative, additional evidence must also corroborate the ‘matter asserted’ or the ‘facts sought to be proved’ ” by the prior inconsistent statements. (Citations omitted). Id. at 1074. There was no corroborating evidence presented that linked the defendant to the shooting of the victim. Because there was no additional corroborating evidence, I opined the prior inconsistent statements should have only been allowed for impeachment purposes, not as substantive evidence.

I find that the distinguishing factor between this matter and D.W. is that Nicole’s prior inconsistent statement was corroborated by the testimony of her sister, Chris Henry. Chris’s testimony was consistent in her prior statement and at trial that she saw Defendant shoot Fred Brown. Chris’s testimony corroborated Nicole’s prior statement to Det. Eserman. Therefore, Nicole’s prior inconsistent statement was admissible as substantive evidence.

For the above stated reasons, I concur with the majority opinion.

      . La. C.E. art. 801(D)(1)(c) provides that a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge.

license: Public Domain

text:
    Richard RALSER v. Winn DIXIE.
    No. 14-CA-91.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.
    William K. Hawkins, Attorney At Law, Ponchatoula, Louisiana, for Plaintiff/Appellant.
    Jack E. Truitt, Pamela S. Chehardy, Alaina Brandhurst, Attorneys At Law, Covington, Louisiana, for Defendant/Ap-pellee.
    Panel composed of Judges STEPHEN J. WINDHORST, HANS J. LILJEBERG and ELLEN SHIRER KOVACH, Pro Tempore.
   STEPHEN J. WINDHORST, Judge.

1 gAppellant, Richard Raiser, appeals from the workers’ compensation court’s judgment denying his motion to set aside settlement. For the reason discussed below, this appeal is dismissed.

On August 22, 2012, Mr. Raiser filed a disputed claim for compensation against Winn Dixie Montgomery, L.L.C. and Sedgwick CMS (“Winn Dixie”). Mr. Raiser claimed that he sustained injuries when he slipped and fell in a puddle on the floor of one of the store’s shopping aisles. Winn Dixie denied that Mr. Raiser sustained a work related accident and injuries.

On May 14, 2013, the parties filed a joint petition for compromise. The parties stated that a bona fide dispute existed concerning all aspects of Mr. Raiser’s claim and therefore, the parties agreed to settle the claim for $15,000.00. The workers’ compensation court signed the order approving the settlement on May 14, 2013.

laOn June 14, 2013, Mr. Raiser’s counsel filed a motion to set aside the settlement arguing that Winn Dixie’s knowledge of Mr. Raiser’s federal claim pursuant to the Family Medical Leave Act (“FMLA”) and its inclusion of language in the release and receipt dismissing all claims under state and federal law constituted misrepresentation or fraud. The motion further claimed that Winn Dixie’s failure to notify Mr. Raiser’s counsel and the workers’ compensation court of Mr. Raiser’s federal claim prior to the approval of the settlement constituted misrepresentation or fraud. On November 6, 2013, the motion to set aside settlement was denied. This appeal followed.

Subsequent to this appeal being submitted to this Court, the parties filed a Joint Motion to Dismiss contending that they jointly seek to dismiss this appeal because the federal court proceeding moots the instant appeal. Pursuant to La. C.C.P. art. 2162, an appeal can be dismissed by consent of all parties. Therefore, we grant the Joint Motion to Dismiss and dismiss this appeal.

APPEAL DISMISSED.


author: HANS J. LILJEBERG, Judge.

text:
    Kim Wheat WELLS, v. Jesse James WELLS, Jr.
    No. 14-CA-198.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Michael C. Darnell, Edwin R. Murray, Attorneys at Law, New Orleans, Louisiana, For Plaintiff/Appellee.
    Robert R.. Faucheux, Jr., Andrea 0. Nathan, Attorneys at Law, Laplace, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2This is the second appeal in the present proceedings. The facts and issues are discussed in full in our opinion on the first appeal. See Wells v. Wells, 12-315 (La.App. 5 Cir. 1/16/13), 109 So.3d 45. By this second appeal, Jesse Wells, Jr. attacks the trial court’s amended judgment reimbursing his former wife, Kim Wheat Wells, for one-half of the amount she paid on the mortgage while living in the marital residence after her separation from Mr. Wells. For the following reasons, we vacate the trial court’s amended judgment and reinstate the original judgment.

Procedural History

In the first appeal, we affirmed the trial court’s June 14, 2011 award reimbursing Ms. Wells a sum of $3,918.12, which the trial court determined was one-half the amount by which the mortgage payments she made on the marital |sresidence from March 16, 2007, to January 11, 2011, reduced the principal debt on the mortgage, plus interest. Thereafter, Ms. Wells, citing an error in calculation, moved to amend the judgment in the trial court pursuant to La. C.C.P. art. 1951. After a hearing on the motion, the trial court rendered an amended judgment awarding Ms. Wells $19,918.00 for reimbursement of one-half the amount she paid on the mortgage. Mr. Wells appeals the April 29, 2013 amended judgment.

Assignment ofEiror

On appeal, Mr. Wells asserts that the trial court erroneously amended its original judgment under La. C.C.P. art. 1951.

Discussion

The Louisiana Code of Civil Procedure provides three methods of seeking modification of a judgment in the trial court: a motion to amend judgment, a motion for a new trial, and an action for nullity of judgment. See La. C.C.P. arts. 1951, 1971, and 2001-2006 respectively. Terry v. Terry, 612 So.2d 808, 809 (La.App. 1st Cir.1992). La. C.C.P. art. 1951 provides that a final judgment may be amended by the trial court at any time on motion of the court or any party “to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation.” Id. The law is quite clear that a final judgment may not be amended to effect a substantive change. Scruggs v. .Minton Equip. Co., 98-987 (La.App. 3 Cir. 12/9/98), 722 So.2d 130, 132; Hebert v. Hebert, 351 So.2d 1199, 1200 (La.1977); Starnes v. Asplundh Tree Expert Co., 94-1647 (La.App. 1 Cir. 10/6/95), 670 So.2d 1242, 1246, rehearing denied. Even an amendment of a final judgment to conform to the trial court’s intent or reasons for judgment is not permitted where the amendment would make substantive changes to the original judgment. Rebco Marine, Inc. v. Homestead Ins. Co., 96-1975 (La.App. 1 Cir. 12/29/97), 706 So.2d 508, 511; Scruggs, supra; Hebert, supra. The proper vehicle for a substantive 14change in a judgment is a timely motion for a new trial or a timely appeal. Rebco, supra; Scruggs, supra; Starnes, supra.

Mr. Wells asserts that the trial court’s amended judgment does not correct an error in calculation, but rather effects a substantive change to the original judgment. Accordingly, he argues that the trial court was without authority to amend the original judgment under La. C.C.P. art. 1951. We agree.

The trial court’s June 14, 2011 judgment awarded Ms. Wells $3,918.72, which the trial court calculated in the judgment as one-half the amount by which Ms. Wells’ mortgage payments reduced the principal debt.

The trial court’s April 29, 2013 amended judgment awarded Ms. Wells $19,918.00 or “half of the amounts that she paid out of her separate funds on the mortgage for the house that she jointly owns with her ex-husband.” Although the trial court stated in the judgment that the amendment was ordered solely to correct mathematical calculations in the June 14, 2011 judgment, we disagree.

A judgment may be amended under La. C.C.P. art. 1951 only where the amendment takes nothing from or adds nothing to the original judgment. Terry, supra, citing Villaume v. Villaume, 363 So.2d 448, 450 (La.1978). When an amendment to a judgment adds to, subtracts from, or in any way affects the substance of the judgment, such judgment may not be amended under La. C.C.P. art. 1951. Id.

The amendment to the June 14, 2011 judgment in the instant case is clearly substantive not only awarding Ms. Wells a larger sum than the original judgment, but also changing the manner by which relief was granted. See Terry v. Terry, 612 So.2d 808, 809 (La.App. 1st Cir.1992); Jones v. Gillen, 564 So.2d 1274, 1280 (La.App. 5th Cir.1990) (where the courts found that an amendment to a judgment that altered the amount of relief a party was entitled to receive was a substantive | change). Because we do not find that the amended judgment corrected an error of calculation, but substantively altered the original judgment, we find the trial court erred in amending the original judgment under La. C.C.P. art. 1951.

Further, because the substantive amendment was not made pursuant to the parties’ consent, a timely motion for a new trial, or appeal, the amended judgment is an absolute nullity and must be vacated. Starnes, supra at 1246. See also Bourgeois v. Kost, 02-2785 (La.5/20/03), 846 So.2d 692, 696. Thus, the April 29, 2013 judgment is an absolute nullity.

Decree

For the reasons assigned, we vacate the April 29, 2013 amended judgment and order that the June 14, 2011 judgment be reinstated as the final judgment of the trial court in this matter.

AMENDED JUDGMENT VACATED; ORIGINAL JUDGMENT REINSTATED.


author: ROBERT M. MURPHY, Judge.

text:
    Rebecca POUNCY v. WINN-DIXIE LOUISIANA, INC.
    No. 14-CA-496.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Thomas C. Cerullo, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant. Michael R. Sistrunk, Trevor C. Davies, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

| 2PIaintiff-appellant, Rebecca Pouncy, appeals a judgment granting summary judgment in favor of defendant-appellee, Winn Dixie Louisiana, Inc. (“Winn Dixie”) and denying her motion to compel more complete discovery responses. Based upon a jurisdictional defect set forth herein, we dismiss the appeal and remand the matter to the trial court for a ruling on plaintiff-appellant’s motion for reconsideration.

PROCEDURAL BACKGROUND

| .¡Plaintiff filed a petition for damages against Winn Dixie arising out injuries she allegedly sustained in a slip and fall accident that occurred on March 20, 2013 in Winn Dixie’s Metairie, Louisiana location. After filing its answer, Winn Dixie filed a motion for summary judgment on December 18, 2013, seeking a dismissal of plaintiff’s claims with prejudice. Plaintiff filed an opposition to Winn Dixie’s motion on January 23,, 2014, and filed a motion to compel more complete discovery responses on January 31, 2014. The trial court conducted a hearing on Winn Dixie’s motion for summary judgment and on plaintiffs motion to compel on April 1, 2014.

On April 2, 2014, the trial court signed a judgment granting Winn Dixie’s motion for summary judgment, and denying plaintiffs motion to compel. The notice of judgment was mailed to the parties by the Clerk of Court on April 14, 2014. On April 18, 2014, plaintiff filed a “Motion and Memorandum for Reconsideration of the Summary Judgment and Motion to Compel,” which the trial court set for hearing on July 1, 2014. Prior to the hearing on her motion for reconsideration, and to any ruling thereon, plaintiff filed a motion for appeal of the trial court’s April 2, 2014 judgment on May 7, 2014. The trial court granted plaintiffs motion for appeal on May 13, 2014, giving plaintiff thirty days to file her appeal with this Court. The minute entry from the July 1, 2014 hearing date of plaintiffs motion for reconsideration shows that the motion was continued without date. Accordingly, the record reflects that at the time the trial court granted plaintiffs motion for appeal of the judgment granting Winn Dixie’s motion for summary judgment and denying her motion to compel, the trial court had not yet ruled on plaintiffs motion for reconsideration of that judgment, nor has it ruled on her motion for reconsideration as of this date.

LAW AND DISCUSSION

14As an initial matter, we note that the Louisiana Code of Civil Procedure does not provide for a motion to reconsider. However, the jurisprudence provides that a motion to reconsider is treated like a motion for new trial. See Atchley v. Atchley, 01-67 (La.App. 5 Cir. 5/30/01), 788 So.2d 690, 693, writ denied, 01-1915 (La.2/8/02), 808 So.2d 349; Jennings v. J. Ray McDermott Holdings, Inc., 99-3161 (La.App. 4 Cir. 4/5/00), 760 So.2d 462, 463. It has long been recognized that a court will look to the import of a pleading and not be bound by the title. Atchley, 788 So.2d at 693. Every pleading is to be construed so as to do substantial justice. La. C.C.P. art. 865. The caption of the pleading does not control. Atchley, 788 So.2d at 693. Rather, the court is obligated to determine the substance of the pleading. Id. (citing Smith v. Cajun Insu lotion, Inc., 392 So.2d 398 (La.1980); Thompson v. Harrington, 99-571 (La.App. 3 Cir.1999)), 746 So.2d 652.

In this case, plaintiff filed a pleading, the substance of which was a request for a new trial on the motion for summary judgment and the motion to compel, although it was titled as a motion for reconsideration. Therefore, we find that plaintiffs motion for reconsideration (hereinafter “motion for reconsideration/new trial”) should be treated as a motion for new trial. See Atchley, 788 So.2d at 693.

Under La. C.C.P. art. 1974, the delay for applying for a new trial shall be seven days, exclusive of legal holidays, which commences to run on the day after the clerk has mailed the notice of judg-mént. Here, the clerk of court mailed the notice of judgment on April 14, 2014, ánd plaintiff filed her motion for reconsideration/new trial as to that judgment on April 18, 2014. Therefore, plaintiff timely filed her motion for reconsideration/new trial within seven days after the mailing of the notice of judgment, as set forth in La. C.C.P. art. 1974.

It is well settled in Louisiana law that an appeal taken while a timely motion for a new trial or request for rehearing is pending is premature and subject to [iidismissal because the motion suspends the operation of the final judgment being appealed. State Through Dep’t of Transp. & Dev. v. Scramuzza, 594 So.2d 517, 521 (La.App. 5 Cir.1992); Crescent Real Estate Equities/1100 Poydras v. Louisiana Tax Comm’n, 01-1434 (La.App. 1 Cir. 9/28/01), 809 So.2d 394, 396. When a timely motion for a new trial has been filed, the delay for taking an appeal does not commence to run until the motion for a new trial has been denied. Scramuzza, 594 So.2d at 521. La. C.C.P. art. 2087(D) provides that “[a]n order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict.”

Accordingly, where the trial court does not rule on the motion for new trial, the trial court is never divested of original jurisdiction, and the appellate court lacks jurisdiction to hear the appeal. Merritt v. Dixon, 97-0781 (La.App. 4 Cir. 5/28/97), 695 So.2d 1095, 1096. Failure to raise the issue is not sufficient to confer jurisdiction on this Court. Id. The appellate court can dismiss an appeal at any time for lack of jurisdiction. La. C.C.P. art. 2162.

In the present case, the motion for reconsideration/new trial was taken on the trial court’s April 2, 2014 judgment granting Winn Dixie’s motion for summary judgment and denying plaintiffs motion to compel. Approximately two weeks later, plaintiff filed a motion for appeal of that same judgment. The trial court then signed an order granting plaintiffs motion for appeal, prior to ruling on plaintiffs timely filed motion for reconsideration/new trial. Because the record shows that the trial court has failed to rule on plaintiffs timely motion for reconsideration/new trial, the order granting her appeal is premature as set forth in La. C.C.P. arts.2087 and 2123. Where a motion for new trial is still pending, the trial court is never divested of original jurisdiction because the delay for taking an appeal has not yet commenced to run. See Merritt, 695 So.2d at 1096; Scramuzza, | fi594 So.2d at 521. Accordingly, we find that this Court has no appellate jurisdiction to hear this appeal because the trial court has not been properly divested of its original jurisdiction.

DECREE

For the foregoing reasons, we dismiss plaintiff-appellant’s appeal and remand the matter to the trial court for a ruling on her motion for reconsideration/new trial. Costs of this appeal are assessed against plaintiff-appellant.

APPEAL DISMISSED; CASE REMANDED


author: Judge JOY COSSICH LOBRANO.

text:
    STATE of Louisiana v. Hyran T. BROOKS.
    No. 2014-KA-0309.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA Counsel for Appellee/State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   Judge JOY COSSICH LOBRANO.

b Hyran Brooks appeals his convictions and sentences for one count each of battery of a correctional officer and obscenity, asking only for a review of the record for errors patent. Because the error as to one of Mr. Brooks’ sentences requires no action by this court, and there are no other patent errors, we affirm his convictions and sentences.

The State of Louisiana filed a bill of information on January 10, 2012, charging Mr. Brooks with the two aforementioned charges. Mr. Brooks pled not guilty to both charges. Although retained counsel filed several pretrial motions, counsel withdrew in July 2012. New counsel obtained several continuances of trial. Mr. Brooks eventually waived his right to a jury, and the court conducted a bench trial on October 4, 2013 and took the matter under advisement. On October 8th, the court found Mr. Brooks guilty as charged in both counts. The court sentenced Mr. Brooks on November 19, 2013, to serve two years at hard labor on both counts, to run consecutively. The court also granted Mr. Brooks’ motion for appeal. The State filed a multiple bill, charging Mr. Brooks as a second felony offender as to the battery count only. On March 11, 2014, Mr. Brooks pled guilty to the multiple bill. The court vacated the original sentence and sentenced Mr. |2Brooks to serve two and a half years at hard labor. Mr. Brooks now appeals these convictions and sentences.

The charges in this case arose from an incident that occurred on July 4, 2011, on Tier B-l at the Orleans Parish Prison where Mr. Brooks was incarcerated. On that date, Mr. Brooks, who had been injured in a shooting sometime prior to his incarceration, asked Deputy Gene Law, III, to call for a nurse to see Mr. Brooks because of back pain. Deputy Law testified that he called for medical help, but no medical personnel responded, and at some point in the early afternoon, Mr. Brooks expressed his frustration and accused the deputy of not calling for medical help. Deputy Law testified that he and Mr. Brooks were in a hallway near the day room and cells on Tier B-l, and he told Mr. Brooks that he would call the watch commander, but Mr. Brooks could not remain in the hallway; he would have to return to his cell or go into the day room. Deputy Law testified that he made the call but was told that the nurses were busy. Deputy Law testified that when he related this information to Mr. Brooks, Mr. Brooks became enraged, pulled down his pants, grabbed his penis and masturbated, while telling Deputy Law to “suck it.” Deputy Law testified that he called the watch commander, who sent another deputy to escort Mr. Brooks to his office. By that time, Mr. Brooks had pulled up his pants. Deputy Law stated that he locked the remaining doors to the tier and then went to the watch commander’s office.

Deputy Law testified that once in the watch commander’s office, Mr. Brooks denied any of the actions detailed above. He stated that Mr. Brooks became irate when he saw the deputy, lunged at him, and hit him in the right cheek. He testified that the other deputies in the office separated the men, and then Sergeant Tyrone Cau-sey, the watch commander, told him to leave.

|sOn cross-examination, Deputy Law admitted that he had had problems with Mr. Brooks and he believed that Mr. Brooks’ grandmother had filed a complaint against him with Sheriff Gusman.

Sergeant Tyrone Causey, the watch commander on the day of the incident, testified that, after being advised of the incident on Tier B-l, he had another deputy escort Mr. Brooks to his office for questioning. Mr. Brooks denied the incident happened. He testified that he also told Mr. Brooks that Deputy Law had notified medical personnel about his back pain. He stated that Mr. Brooks became aggravated when Deputy Law told Sergeant Causey that Mr. Brooks had lied about the incident, and Mr. Brooks hit Deputy Law. Sergeant Causey then had other deputies separate the men, and he told Deputy Law to leave. He stated that Mr. Brooks was not in handcuffs at the time of either incident, and after he hit Deputy Law, Mr. Brooks was escorted to the medical unit, where he refused treatment. He also stated that Deputy Law was acting in the normal course of his duties when Mr. Brooks hit him.

Linda Polk, a registered nurse at O.P.P., testified that she examined Deputy Law after the incident and found that he had redness and swelling to his right cheek. Although she completed a medical advice form and gave it to him, she did not take any photographs of his face. She stated that his injuries did not include any cuts.

Mr. Brooks called Ardell Dixon, who was incarcerated on Tier B-l on July 4, 2011. Mr. Dixon testified that he was in the day room and saw Mr. Brooks and Deputy Law arguing, but did not see Mr. Brooks pull down his pants or grab his penis. Soon thereafter, he saw Mr. Brooks being escorted off the tier. He denied speaking with Mr. Brooks about the incident.

|4Mr. Brooks denied pulling down his pants, grabbing his penis, telling Deputy Law to “suck it,” or hitting him. He testified that early in the morning of the day of the incident, he asked Deputy Law to call for medical help because a bullet in his back had moved and was straining against his skin. A few hours later, when medical help did not arrive, he asked Deputy Law to call again, and the deputy refused to do so, stating instead that Mr. Brooks was lying about his injury. He asked for help from Deputy Law again right before lunch, and Deputy Law told him he was not going to call for help. Mr. Brooks testified that he went into the day room and called his grandmother, who then called Sergeant Causey, and he told her that he had not received a medical call from' Tier B-l and would get someone to examine Mr. Brooks.

Mr. Brooks testified that when he returned from lunch, he again asked Deputy Law to call for medical help. When Dep. Law refused to do so, Mr. Brooks refused to return to his cell or go into the day room. The two men argued, and then Deputy Law taunted him to call his grandmother for help. Mr. Brooks testified that the deputy walked off the tier and then returned, standing behind the wire gate and nodding at him. Another deputy came and escorted him to Sergeant Cau-sey’s office. Mr. Brooks testified that he showed Sergeant Causey his back, and the sergeant told him that he needed medical attention. Sergeant Causey then asked him why he had pulled down his pants and showed his penis to Deputy Law, and Mr. Brooks denied doing so. Mr. Brooks testified that Deputy Law.then stated that Mr. • Brooks was lying and hit him in the neck. Mr. Brooks testified that he fell to the floor-, and another deputy grabbed Deputy Law. Sergeant Causey then told Deputy Law to leave. Mr. Brooks testified that Sergeant Causey then warned him that if he touched Deputy Law, he would be booked on another charge. Mr. | ¡¡Brooks denied hitting Deputy Law. He also pointed out that Deputy Law claimed that he was hit on his right cheek, but Mr. Brooks is right handed.

On cross-examination, Mr. Brooks reiterated that he and Deputy Law merely exchanged words while on the tier. He testified that there are no cameras in the watch commander’s office, and that is where deputies take inmates to beat them. He stated that his grandmother and Deputy Law earlier got into an altercation, after which Deputy Law was demoted after she filed a complaint against him. Mr. Brooks insisted that both Deputy Law and Sergeant Causey’s testimony was false. Mr. Brooks admitted having prior convictions for distribution of marijuana and attempted possession of a firearm by a convicted felon.

On rebuttal, the State called Deputy Law and Sergeant Causey, both of whom denied that deputies took inmates to Sgt. Causey’s office to beat them. They also denied that Deputy Law hit Mr. Brooks while in Sergeant Causey’s office.

Counsel for Mr. Brooks has requested only a review of the record for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). Counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate thorough reviews of the record. Counsel moved to withdraw because he believes, after a conscientious review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed the record and found no trial court ruling that arguably supports the appeal. A copy of counsel’s brief was forwarded to Mr. Brooks, and lathis Court informed him of his right to file a brief in his own behalf. As he failed to so do, this Court’s review is limited to a review of patent errors.

As per State v. Benjamin, this Court performed an independent, thorough review of the pleadings, minute entries, and the bill of information in the appeal record. Mr. Brooks was properly charged by bill of information with one count each of battery of a correctional officer and obscenity, violations of La. R.S. 14:34.5 and La. R.S. 14:106. The bill of information was signed by an assistant district attorney. Mr. Brooks was present and represented by counsel during arraignment, trial, and at sentencing. The court’s verdicts of guilty as charged of both counts are legal in all respects. Furthermore, a review of the trial transcript shows that the State provided sufficient evidence to prove beyond a reasonable doubt that Mr. Brooks was guilty of both charges.

While there is no error as to Mr. Brooks’ obscenity sentence, there is error as to his battery sentence. La. R.S.14:35B(2), the pertinent sentencing provision, requires that his sentence be imposed without benefit of parole, probation, or suspension of sentence. Neither when the court imposed the original sentence nor when it imposed the multiple bill sentence as to this count did the court include these prohibitions in the sentence. However, as per La. R.S. 15:301.1A and State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, these prohibitions are deemed to have been imposed. Thus, there is no action this court must take with respect to this sentence.

17Our independent review reveals no non-frivolous issue and no trial court ruling that arguably supports the appeal. Therefore, we affirm Hyran Brooks’ convictions and sentences. We also grant appellate counsel’s motion to withdraw.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . In addition, the court properly did not impose a fine because the appellant was sentenced as a multiple offender. See State v. Dickerson, 584 So.2d 1140 (La. 1991); State v. Nora, 2013-0892 (La.App. 4 Cir. 6/18/14),T43 So.3d 1237.


author: DENNIS R. BAGNERIS, SR., Judge. LOB RANO J.,

text:
    NEW ORLEANS FIRE FIGHTERS PENSION AND RELIEF FUND, et al. v. The CITY OF NEW ORLEANS, et al.
    No. 2013-CA-1684.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2014.

      Louis L. Robein, Jr., Christina L. Carroll, Robein Urann Spencer Picard & Can-gemi, APLC, Metairie, LA, for Defendant-in-Reconvention/Appellees.
    James M. Garner Debra J. Fischman Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, Sharonda R. Williams, City Attorney, Churita H. Hansell, Acting Chief Deputy City Attorney, Cashauna M. Hill, Assistant City Attorney, Kimlin S. Lee, Deputy City Attorney, New Orleans, LA, for Defendants/Plaintiffs-in-Reconvention/Appel-lants, The City of New Orleans, et al.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   DENNIS R. BAGNERIS, SR., Judge.

11 This matter derives from a mandamus action filed by Trustees of the New Orleans Firefighters’ Pension and Relief Fund to compel the City of New Orleans to make certain statutory contributions owed to the Fund. As part of its response, the City filed a reconventional demand, seeking injunctive relief and damages based on alleged mismanagement of the Fund by its Trustees. In the present appeal, the City argues that the trial court erred in granting the Fund’s exceptions of no right of action and no cause of action to the reconventional demand. Based on our finding that the City has no right of action, we affirm the trial court’s judgment.

FACTUAX, AND PROCEDURAL BACKGROUND

La. R.S. 11:3361 et seq. (collectively, the pension statute) provides for the creation of the Firefighters’ Pension and Relief Fund and outlines contributions that the City shall make to the Fund. On July 19, 2012, the Trustees of the Fund filed a Petition for Writ of Mandamus, requesting that the City be ordered to pay sums owed to the Fund as mandated by La. R.S. 11:3384. The City’s response 12included a reconventional demand against the Trustees, alleging that they mismanaged the investments and assets of the Fund. The City requested injunctive relief to prohibit the Trustees from using certain financial consultants and sought damages for the amounts the City has been or will be called to pay into the Fund due to the Trustees’ alleged mismanagement. The City also requested the right to take over management of the Fund. The Fund’s answer to the City’s reconventional demand raised peremptory exceptions of no right of action and no cause of action, challenging the City’s standing to sue. Before considering the merits of the mandamus action, the trial court severed the City’s reconventional demand from the petition for mandamus.

After a hearing on the exceptions, the trial court granted the Fund’s exceptions of no right of action and no cause of action based on the City’s lack of standing. Thereafter, the City filed a Motion for New Trial To Clarify Judgment, seeking clarification as to whether the City would be permitted to amend its reconventional demand to add New Orleans Fire Department Superintendent, Timothy McConnell, who is also a Fund trustee and member, as a plaintiff-in-reconvention. The trial court denied the motion without a hearing.

This appeal followed.

[■¡DISCUSSION

The City raises three assignments of ■ error. They include that 1) the district court erred in granting the Fund’s exception of no right of action; 2) the district court erred in granting the Fund’s exception of no cause of action; and 3) the district court erred in denying the City’s request for leave to amend and the City’s Motion for New Trial to Clarify Judgment.

Our jurisprudence has long established that the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit; whereas, the focus on an exception of no cause of action is on whether the law provides a remedy against the particular defendant. Badeaux v. Southwest Computer Bureau, Inc., 05-0612, pp. 6-7 (La.3/17/06), 929 So.2d 1211, 1216-1217. The function of an exception of no right of action is a determination as to whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. Id. It addresses itself to the standing of the plaintiff to bring the suit. Perez v. Perez, 353 So.2d 1360, 1363 (La.App. 4 Cir.1978). Accordingly, in the present matter, we shall first decide whether the City has a right of action or standing to bring the reconventional demand. In the event it does not, then, the City cannot avail itself of any remedy asserted in a cause of action; and this Court need not consider any claims that the trial court erred in granting the Fund’s exception of no cause of action.

Exception of No Right Of Action

UThe Court of Appeal reviews de novo a trial court judgment sustaining an exception of no right of action as a question of law and determines whether the trial court’s ruling was correct or incorrect as a matter of law. First Bank and Trust v. Duwell, 11-0104, p. 4 (La.App. 4 Cir. 5/18/11), 70 So.3d 15,18.

In the present matter, the City argues that as an obligatory payor of substantial monies to the Fund, the City has a right of action to recover damages for the inflated contributions that the City has been called upon to pay into the Fund due to the Trustees’ alleged mismanagement. The City suggests that its standing to sue is buttressed by this Court’s recent decision to affirm the trial court’s judgment that granted mandamus relief which compelled the City to pay into the Fund amounts owed pursuant to La. R.S. 11:3384(F). The City asserts this decision makes the City a “guarantor” or surety of the Fund and entitles the City to recoup the sums paid caused by the Trustees’ mismanagement. It concludes that the Trustees’ mismanagement directly impacts the City treasury; therefore, the City has standing to assert its right to set off against any contributions the City is required to pay into the Fund that result from the Trustees’ mismanagement and breaches of their fiduciary duties. The City maintains that any financial injury sustained by the City falls within the scope of the Trustees’ fiduciary duties to manage the Fund in accordance with prudent practice. In support, the City cites City of Louisville v. Stock Yards Bank & Trust Co., a Kentucky decision that held where its city government was required to indemnify against the insufficiency of fund assets, the city had a cause of action for damages |fiand injunctive relief against the trustees of a police retirement fund for its bad investment practices.

We disagree with the arguments advanced by the City. First of all, the City’s reliance on City of Louisville is misplaced. Although that decision allowed the City of Louisville to bring an action against the police officers’ pension trustees for breaches of fiduciary duty based on bad investment decisions, the State of Louisiana, unlike the Kentucky legislature, has a pension statute that describes the fiduciary duties of the Fund’s Trustees and limits the parties who may bring a cause of action against the Fund. Based upon our review of the provisions of the pension statute, the City does not fall within that category of persons to whom the Trustees owe any fiduciary duty.

The Louisiana legislature has delineated the fiduciary and investment responsibilities of the Fund’s Trustees in La. R.S. 11:8363.1. In particular, La. R.S. 11:3363.1E provides that a fiduciary must discharge his duties solely in the interest of system members and beneficiaries for the exclusive purpose of providing benefits to participants and beneficiaries, and paying the expenses of administering the plan. La. R.S. 11:3363.1H(1) states in part that a “member, beneficiary, or survivor who can demonstrate a personal interest in this retirement system may bring civil action to enforce the proceedings of this Section.” (emphasis added). By statute, the Fund’s Trustees owe a fiduciary duty only towards members and beneficiaries. Therefore, as the City is not a member, beneficiary, or survivor, the express terms of the, statute exclude the City as a party to whom the statute affords a right of action to bring a civil suit in the event the Trustees breach their fiduciary duties.

IsNext, we reject the City’s contention that this Court’s decision in New Orleans Fire Fighters Pension, supra, created a suretyship between the City and the Fund so as to give the City a right of action for the relief requested in its reeon-ventional demand. The City argues that as a surety, the City is entitled to recoup from the Trustees any contributions caused by the Trustees’ bad investments under the law of suretyship. This argument lacks merit. A suretyship must be “express and in writing.” However, the New Orleans Fire Fighters Pension decision only addressed narrow issues, namely, whether the trial court properly granted a writ of mandamus to compel the City to pay sums allegedly owed to the Fund pursuant to La. R.S. 11:3384(F) and whether the evidence supported the amounts awarded. The express language of the judgment did not create a legal surety and the City presents no evidence of same. Indeed, the Fund maintains that the City cannot claim status as a surety because it has not paid the Fund the amounts owed. Notwithstanding, even if the City were a surety, its status as a guarantor would not automatically confer standing to sue. See Joe Conte Toyota Inc., v. Toyota Motor Sales, U.S.A., Inc., 95-1630 (La.App. 4 Cir. 2/12/97), 689 So.2d 650. The City would still be prohibited from asserting its recon-ventional demand because it is not a party listed under La. R.S. 11:3363.1H(1) who has a right to bring a civil action against the Trustees for breach of any duty related to its fiduciary and investment responsibilities.

This Court does not dispute that the City has an interest in the Fund’s investment decisions; however, the pension statute referenced herein only establishes mandates that require the City to make contributions to the Fund. [/These mandates align with the State legislature’s acknowledged intent to ensure that the firefighter’s retirement benefit fund is fully funded. We find nothing within these statutes that creates a fiduciary duty between the City and the Trustees of the Fund; nor do we find anything that affords the City the right to recover damages, seek injunctive relief, control the Fund’s investment decisions, or obtain any of the other relief requested in its reeon-ventional demand.

Our jurisprudence has long established that the proper procedure for the enforcement of the obligations set forth in the pension statute is mandamus because payment by the City requires the City as a ministerial function to make an appropriation. Nicolay v. City of New Orleans, 546 So.2d 508, 512 (La.App. 4 Cir.1989). Mandamus lies to compel the performance of prescribed duties that are purely ministerial and in which no element of discretion is left to the public officers, but there must be a clear and specific legal duty which ought to and can be performed. Id. In short, the City’s clear and specific legal duty under the pension statute is to make its required statutory contributions; the statute provides no discretion for the City to manage the Fund’s investment decisions or seek relief from those decisions. In the event the City wishes to have this authority, it must seek relief from the State legislature that enacted the pension statute. However, as a judiciary, our task is to interpret the law as enacted by the legislature; whereas, it is strictly within the legislature’s province to write the laws. New Orleans Fire Fighters Pension and Relief Fund v. City of New Orleans, 13-0878, p. 24 (La.App. 4 Cir. 12/18/13), 131 So.3d 412, 426. Based on our interpretation of the pension statute, the City does not have a right of action to seek the relief requested in its reconventional demand. Hence, the trial court did not err in granting the Fund’s | ^exception of no right of action and thereby finding that the City lacked standing to assert a cause of action.

Motion For New Trial To Clarify Judgment/Request For Leave

The City contends that in the event the trial court properly granted the Fund’s exceptions, that La. C.C.P. art. 934 requires that the City should have been given an opportunity to amend its reconven-tional demand. Accordingly, the City claims the trial court erred in denying its motion for new trial to clarify judgment that sought leave to name Board member and New Orleans Fire Department Superintendent, Timothy McConnell, as a plaintiff-in-reconvention. The City represents that as a Fund trustee and member, Superintendent McConnell has standing to bring the claims asserted in the City’s reconventional demand.

La. C.C.P. art. 934 states in part that “[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” Therefore, the question for this Court to answer is whether the addition of Superintendent McConnell as a plaintiff-in-reconvention would give the City a right of action; we answer “no.”

The exception pleading objection of no right of action, questioning plaintiffs standing or interest to bring suit, relates specifically to person of plaintiff; standing raises issue of whether plaintiff belongs to particular class for which law grants remedy for particular grievance or whether plaintiff has interest in judicially enforcing right asserted. See Mouton v. Department of Wildlife & Fisheries for State of Louisiana, 95-0101 (La.App. 1 Cir. 6/23/95), 657 So.2d 622. In the matter before us, we have already determined that the City does not have a right of action as the pension statute does not place the City in that class of persons |flwho can maintain a right of action against the Fund. Accordingly, notwithstanding whether Superintendent McConnell may have a right of action or cause of action against the Fund, his status does not empower him or grant him the capacity to bring an action on behalf of the City. Therefore, the trial court did not err in denying the City’s motion for new trial because the addition of Superintendent McConnell could not remove the grounds for sustaining the exception of no right of action. Granting the motion for new trial would have been meaningless because the City could not remove the grounds for sustaining the exceptions of no right of action and no cause of action.

Conclusion

The City does not have standing to seek the remedies sought in its reconventional demand. Any amendment to add Superintendent McConnell to its reconventional demand cannot confer upon the City a right of action; hence, the trial court did not err granting the Fund’s exceptions and in denying the City’s motion for new trial.

Wherefore, based on the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

LOB RANO J.,

dissents.

. hi respectfully dissent from the majority opinion affirming the trial court’s sustaining of the exceptions of no right of action and no cause of action raised by the defendants-in-reconvention. In my opinion, La. Rev.Stat. §§ 11:3862, 11:8363 and 11:3363.1 provide the Director of Finance for the City of New |4Orleans with both a right of action and cause of action against his fellow trustees if he is aware of a breach of their fiduciary duties to the Firefighters’ Pension and Relief Fund in the City of New Orleans (“the Fund”).

Mr. Norman S. Foster, in his capacity as Chief Financial Officer and Director of Finance for the City of New Orleans, is one of the named plaintiffs-in-reconvention in this case. As the Director of Finance for the City, he is also a statutorily named, ex-officio member of the Board of Trustees for the Fund. The Board of Trustees has “exclusive control and management of the fund and all money donated, paid, or assessed for the relief or pensioning of disabled, superannuated, and retired members of the fire department, their widows and minor children, or widowed mothers, and for the payment of death benefits.” La.Rev.Stat. § 11:3363(A). It also has exclusive control of the allocation of funds and the payment of funds for operational expenses, and it is required to invest the balance of all funds regularly and promptly. See La.Rev.Stat. § 11:3363(E). The Board of Trustees “may employ personnel, professional advisors, legal and technical assistants, and pay compensation for services rendered and shall employ an actuary who shall annually certify to the board the amount of contributions required from the city and other sources to maintain the system on an actuarial basis.” La.Rev. Stat. § 11:3363(D).

Mr. Foster, as well as the other members of the Fund’s Board of Trustees, is deemed to be in a fiduciary relationship with the Fund, because he exercises discretionary authority and control with respect to the management of the system | Sfunds or assets. See La.Rev.Stat. § 11:3363.1(A)(1). As a fiduciary, he is required to discharge his duties with respect to the system in the exclusive interest of the members and beneficiaries. See La.Rev.Stat. § 11:3363.1(D).

However, if Mr. Foster has any knowledge of a co-fiduciary’s breach of any obligation or statutorily imposed duty, as a fiduciary he has a duty to remedy that breach. See La.Rev.Stat. § 11:3363.1(G)(2). Each fiduciary has a duty of accountability for his own actions, inactions, and decisions, as well as those of his co-fiduciaries. In other words, the statute provides the Director of Finance for the City, as a plaintiff-in-reconvention, with both standing and a cause of action. Thus, it is reasonable to conclude that in order to remedy that breach, Mr. Foster would have to bring a civil action, much like a member, beneficiary, or survivor with a personal interest in the system is permitted to do under La.Rev.Stat. § 11:3363.1(H)(1) or like a member of an “unincorporated association” with a derivative action under La. C.C.P. Art. 611. The fact that Mr. Foster must discharge his fiduciary duties solely in the interest of the system members and beneficiaries, 'see La.Rev.Stat. §§ 11:3363.1(0) and (E), does not necessarily require him to ignore or oppose the eity’s interests.

The reconventional demand in this case alleges that various trustees of the board breached their fiduciary duties to the Fund and'mismanaged the Fund in numerous ways, including making a series of bad investments. Given that the | ^Director of Finance for the City, one of the plaintiffs-in-reconvention, has a statutory duty to remedy any breach by another co-fiduciary if he has knowledge of that breach, I would remand this case to the trial court to allow the Director of Finance, as a statutorily named, ex-officio member of the Board of Trustees for the Fund, to amend the re-conventional demand petition to clearly state his cause of action.

      . The actual named plaintiffs-in-reconvention included the City of New Orleans, Honorable Mitchell J. Landrieu, in his official capacity of Mayor of the City of New Orleans, Norman S. Foster, in his official capacity as Chief Financial Officer and Director of Finance of the City of New Orleans, Jacquelyn Brechtel Clarkson, in her official capacity as President of the New Orleans City Council, Stacy Head, in her official capacity as Vice-President of the New Orleans City Council, Susan G. Gui-dry, in her official capacity as Member of the New Orleans City Council, Diana Bajoie, in her official capacity as Member of the New Orleans City Council, Kristin Gisleson Palmer, in her official capacity as Member of the New Orleans City Council, and Cynthia Hedge-Morrell, in her official capacity as Member of the New Orleans City Council, collectively, "the City.”
      The named defendants-in-reconvention included William M. Carouche, Richard J. Hampton, Nicolas G. Felton, Terrell P. Hampton, Darryl P. Klumpp, Dean DiSalvo, and Keith Noya, in their official capacities as Trustees of the New Orleans Fire Fighters Pension and Relief Fund, collectively, “the Fund.”

      . La. R.S. 11:3384 provides in part for the computation of retirement benefits owed to fire fighters employed after December 31, 1967.

      . The City initially filed an Answer, along with Exceptions of No Cause of Action, No Right of Action and Unauthorized Use of Summary Proceedings to the mandamus action. Its exceptions were denied by the trial court; and this Court denied the City’s writ application. The Louisiana Supreme Court also denied the defendant’s writ application. See New Orleans Fire Fighters Pension and Relief Fund v. City of New Orleans, 13-0009 (La. 1/4/13), 106 So.3d 540.

      .As to the merits, the trial court granted the Fund's writ of mandamus. Upon appeal, this Court affirmed, finding that 1) evidence was sufficient to support finding that $17,524,329.00 was amount that city was required to contribute to fund; 2) city’s statutorily directed normal and accrued liability contributions to city firefighter pension fund are mandatory contributions; 3) mandamus was proper procedural vehicle by which to order city’s statutorily-mandated contribution to fund; and 4) evidence of trustees’ alleged mismanagement of fund was irrelevant and thus inadmissible. See New Orleans Fire Fighters Pension and Relief Fund v. City, 13-0873 (La.App. 4 Cir. 12/18/13), 131 So.3d 412.

      . Id.

      . 843 S.W.2d 327 (Ky.1992).

      . See La. C.C. art. 3049-("A surety who pays the creditor is entitled to reimbursement from the principal obligor.'').

      . La. C.C. art. 3038.

      . La.Rev.Stat. § 11:3362 provides, in part:
      A.There is hereby created a Board of Trustees for administration of this fund. This board shall be composed of the following members:
      (1) The superintendent of the fire department.
      (2) The director of finance of the city of New Orleans.
      (3) Two members elected from the active ranks of the department.
      (4) Two members elected from the ranks of retired members of the department.
      (5) One member who is domiciled in and an elector of the city of New Orleans and who is appointed by the mayor subject to confirmation by the New Orleans City Council. A vacancy in this position shall be filled in the same manner as the original appointment.

      . La.Rev.Stat. § 11:3363 provides, in part:
      A. The board of trustees shall have exclusive control and management of the fund and all money donated, paid, or assessed for the relief or pensioning of disabled, superannuated, and retired members of the fire department, their widows and minor children, or widowed mothers, and for the payment of-death benefits. This board is created to administer the funds paid into this system and to invest these funds in accordance with the provisions of this Part.
      B. The board shall assess each member of the fire department not less than ten percent of his salary, to be deducted monthly, the same to be placed by the secretary-treasurer to the credit of the fund subject to the order of the board.
      C. Should the employee who was employed prior to January 1, 1968, leave the employment of the city fire department at any time, eighty percent of his accumulated contributions shall be paid to him in a lump sum if living, otherwise to his named beneficiary unless he is entitled to receive benefits under this Part; and upon such withdrawal he shall forfeit all credits for service in this system. It may acquire, own, administer, alienate, and-otherwise dispose of all kinds of property, movable and immovable, tangible and intangible, contract, adopt, alter or destroy an official seal, sue and be sued, implead and be impleaded.
      D. The board may employ personnel, professional advisors, legal and technical assistants, and pay compensation for services rendered and shall employ an actuary who shall annually certify to the board the amount of contributions required from the city and other sources to maintain the system on an actuarial basis.
      E. The board shall have exclusive control of the allocation of funds and the payment of funds for operational expenses, the balance of all funds shall be regularly and promptly invested in accordance with the provisions of this Part.
      F. The board shall appoint committees of its members as needed, including a finance committee and a relief committee, and make necessary rules and regulations for its government in the discharge of its duties. It shall hear and decide applications for relief, pensions, and death benefits under this Part. Its decisions on such applications shall be final and conclusive, and not subject to review by the courts of this state unless application is made to the board for rehearing. The board shall cause to be kept a record of all its meetings and proceedings.

      . La.Rev.Stat. § 11:3363.1 provides:
      A. The following shall be deemed to be in a fiduciary relationship with the fund:
      (1) Any person who exercises any discretionary authority or discretionary control with respect to the management of system funds or assets.
      (2) Any person who renders investment advice or services for compensation, direct or indirect, with respect to system funds or assets.
      B. Legislators, state officials, system attorneys, accountants, and actuaries shall not be considered fiduciaries unless they exercise discretionary control over the man- . agement or administration of the system or some authority or control over system assets.
      C. Any person who has been convicted of a felony offense shall be restricted from serving as a system fiduciary for a period of five years after the conviction or after the end of imprisonment, whichever is later.
      D. The basic duty of a fiduciary is to discharge his duties with respect to the system in the exclusive interest of the members and beneficiaries.
      E. A fiduciary must discharge his duties solely in the interest of system members and beneficiaries for the exclusive purpose of providing benefits to participants and beneficiaries, and paying the expenses of administering the plan.
      F. (1) Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this Part shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.
      (2) No fiduciary shall be liable with respect to a breach of fiduciary duty under this Part if such breach was committed before he became a fiduciary or after he ceased to be a fiduciary.
      G. (1) Any fiduciary who participates in a breach committed by a cofiduciary, or who tries to conceal a cofiduciaiy's breach, shall be held liable jointly for breach of fiduciary duty. Cofiduciary liability also results from a fiduciary’s failure to use reasonable care to prevent a cofiduciary from committing a breach.
      (2) Any fiduciary who has knowledge of a cofiduciary’s breach has a duty to remedy the breach.
      H. (1) A member, beneficiary, or surviv- or who can demonstrate a personal interest in this retirement system may bring civil action to enforce the proceedings of this Section. In any enforcement proceeding the plaintiff may seek and the court may grant any or all of the following forms of relief:
      (a) A writ of mandamus.
      (b) An injunction.
      (c) A declaratory judgment.
      (d) A judgment rendering certain actions
      of the board of trustees as void.
      (e) A judgment awarding civil damages.
      (2) Exclusive jurisdiction for proceeding under this Section shall be in the Civil District Court for the Parish of Orleans. In any enforcement proceeding the court has jurisdiction and authority to issue all necessary orders to require compliance with, or to prevent noncompliance with, or to declare the rights of parties under the provisions of this Section. Any noncompliance with the orders of the court may be punished as contempt of court.
      (3) If a person who brings an enforcement proceeding prevails, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may award him reasonable attorney fees or an appropriate portion thereof. If the court finds that the proceeding was of a frivolous nature and was brought with no substantial justification, it may award reasonable attorney fees to the prevailing party.
      I. The system may not submit a proposed regulation, or approve any internal policy, to relieve a fiduciary from responsibility for breach of fiduciary duty. However, the system may purchase insurance to cover liability or losses due to acts or omissions of fiduciaries. Any such insurance shall maintain the insurance company's rights of subrogation. A fiduciary may purchase insurance to cover his own liability without condition.
      J. The board of trustees is hereby authorized, in requesting proposals for investment advisory services, to require that fees shall be quoted as a fixed fee, a fee based on market value of assets, a fee based commission recapture arrangement, or a performance fee.

        .See La.Rev.Stat. § 11:3362(A)(2); see also Home Rule Charter of the City of New Orleans, Art. IV, §§ 4-101; 4-102; 4-1301; 4-1303 (1954).

      . See Board of Trustees of Firemen’s Pension and Relief Fund of the City of New Orleans v. City of New Orleans, 207 So.2d 166, 167 (La. App. 4th Cir.l968)(where the court found that implicit in the plaintiff’s statutorily imposed duties is the right to sue because otherwise the plaintiff would lack the power to perform his necessary duties); See also Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, pp. 6-7 (La.3/17/06), 929 So.2d 1211, 1216-17 (where the court noted that the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit and the question is whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation).

      . See Badeaux, at pp. 6-7, 929 So.2d at 1216— 17 (where the court stated that the focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant and the question is whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition).

      . La. C.C.P. Art. 617.


text:
    Jill SCHROEDER v. WALGREENS FAMILY OF COMPANIES d/b/a Walgreens Drug Store # 11496 and XYZ Insurance Company. Jill Schroeder v. Walgreens Family Of Companies d/b/a Walgreens Drug Store # 11496 et al.
    Nos. 2014-CA-0322, 2014-C-0161.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2014.

      Mark John Shea, Shea Law Offices, New Orleans, LA, for Plaintiff/Appellee.
    Gregory Carl Weiss, Weiss & Eason, L.L.P., Mandeville, LA, Kathryn M. Caraway, Ann Marie LeBlanc, Caraway Le-Blanc, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge SANDRA CABRINA JENKINS).
   | iThis case arises out of a slip-and-fall accident at Walgreens Drug Store. Defendant appeals the trial court’s ruling denying its motion for summary judgment and granting plaintiffs motion for partial summary judgment on the issue of liability. For the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On August 2, 2011, Ms. Jill Schroeder was walking through the aisles of a Wal-greens Drug Store (“Walgreens”) when she slipped and fell, landing on her back and head. Prior to her fall, Ms. Schroeder noticed a chair in the middle of the aisle but thought nothing of it; upon getting up, she noticed a wet floor sign. After asking to speak with a supervisor, Ms. Laura Doll, the manager, took Ms. Schroeder’s contact information but an incident report was not generated at that time. Ms. Doll recounted the event and her observations by affidavit, which was not executed until almost two years after the incident. Her affidavit included: the floor had recently been mopped after a customer spilled soda, an employee placed a wet floor sign and a chair in the area to warn customers of the potentially hazardous condition, and there was no record or surveillance recording of the area to reflect when the spill occurred and/or was cleaned. Ms. Doll’s affidavit further Instated that she personally observed that the floor was dry, Ms. Schroeder was wearing flip flops on the day of her fall, and Ms. Schroeder did not have any wet clothing.

After filing suit, Ms. Schroeder motioned for partial summary judgment on the issue of liability only. She argued that Walgreens did not exercise the requisite standard of care under La. R.S. 9:2800.6 because Walgreens’ employees had actual knowledge of the previous spill, the floor was still wet at the time she fell, and there was inadequate warning of the dangerous condition. Walgreens filed a cross-motion for summary judgment arguing that Ms. Schroeder could not prove the floor was still wet at the time she fell but could only speculate as to what happened. Wal-greens also argued that it exercised reasonable care by placing the wet floor sign and chair to warn patrons of the potentially hazardous condition.

The trial court denied Walgreens’ motion and granted Ms. Sehroeder’s motion reasoning that “[t]he facts establish that Walgreens’ employees had actual knowledge of a previous spill and the conditions existed at the time of Schroeder’s fall. The store clerk had mopped up soda off the floor, but the floor remained wet. A Walgreens employee did place one caution sign adjacent to the spill, but not on the wet area. A blue plastic chair and step stool were utilized in an attempt to caution off the area. This Court finds that an unacceptable method of notifying customers of a wet floor.”

■Walgreens filed a writ application alleging the trial judge erred in denying its motion for summary judgment. The trial court then certified plaintiffs summary judgment as a final judgment pursuant to La. C.C.P. art. 1915(B)(1) and Walgreens filed an appeal requesting this Court reverse the ruling issued by the trial court and dismiss Walgreens’ lawsuit with prejudice or in the alternative, remand the case tojjbe heard on the merits. In the interest of justice and judicial efficiency, the supervisory writ application was consolidated with defendant’s appeal herein by order of this Court.

LAW AND ANALYSIS

In the two assignments of error, Wal-greens contends the trial court erred in denying its motion for summary judgment and granting plaintiffs motion for partial summary judgment. In granting Ms. Schroeder’s motion, the trial court found plaintiff established the necessary elements to prove Walgreens’ failure to maintain its floors in a reasonably safe condition was the cause of Ms. Schroeder’s fall.

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue of material fact. La. C.C.P. art. 966(B)(2). The burden of proof rests with the moving party and all doubts should be resolved in the non-moving party’s favor. Cenance v. Tassin, 03-1379, p. 3 (La.App. 4 Cir. 3/3/04), 869 So.2d 913, 916 (citing Willis v. Medders, 00-2507, p. 1 (La.12/08/00), 775 So.2d 1049, 1050). Once the mover establishes a prima facie showing that the motion should be granted, the non-moving party shall present evidence to demonstrate material factual issues remain and failure to do so mandates the granting of the motion. Schultz v. Guoth, 10-0343, p. 7 (La. 1/19/11), 57 So.3d 1002,1006 (quoting Wright v. Louisiana Power & Light, 06-1181, p. 16 (La.3/9/07), 951 So.2d 1058, 1069-70); see also, La. C.C.P. art. 966(C)(2).

|4On appeal, our review of summary judgments is de novo using the same standard applied by the trial court in deciding whether summary judgment is appropriate by determining if any genuine issues of material fact exist. Francis v. Union Carbide Corp., 12-1397, p. 2 (La.App. 4 Cir. 5/8/13), 116 So.3d 858, 860, writ denied, 13-1321 (La.9/20/13), 123 So.3d 177 (citing King v. Dialysis Clinic Inc., 04-2116, p. 5 (La.App. 4 Cir. 1/4/06), 923 So.2d 177,180). An issue is genuine if reasonable persons could disagree. Smith v. Treadaway, 13-0131,' p. 4 (La.App. 4 Cir. 11/27/13), 129 So.3d 825, 828 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2312, p. 27 (La.7/5/94), 639 So.2d 730, 751). Facts are material when they “insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” FMC Enterprises, L.L.C. v. Prytania-St. Mary Condominiums Ass’n, Inc., 2012-1634 (La.App. 4 Cir. 5/15/13), 117 So.3d 217, 222 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751).

To maintain a slip-and-fall action against a merchant, a plaintiff must prove the essential elements of a standard negligence claim in addition to the requirements found in La. R.S. 9:2800.6. Lofton v. Hayward, 2000-2019, p. 6 (La.jApp.g 4 Cir. 1/9/02), 806 So.2d 877, 882, writ denied, 2002-0286 (La.4/12/02), 813 So.2d 405 (citing Davenport v. Albertson’s Inc., 2000-00685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied, 2001-0073 (La.3/23/01), 788 So.2d 427). La. R.S. 9:2800.6 states that a merchant owes a duty to exercise reasonable care to protect its customers, to keep the premises safe from hazardous conditions, and to warn patrons of known dangers. Russell v. Morgan’s Bestway of Louisiana, LLC, 47,914, p. 5 (La.App. 2 Cir. 4/10/13), 113 So.3d 448, 452 (citing Jones v. Brookshire Grocery Co., 37,117 (La.App.2d Cir.5/14/03), 847 So.2d 43; Turner v. Brookshire Grocery Co., 34,562 (La.App.2d Cir.4/4/01), 785 So.2d 161; Ward v. ITT Specialty Risk Services, Inc., 31,990 (La.App.2d Cir.6/16/99), 739 So.2d 251, unit denied, 99-2690 (La.11/24/99), 750 So.2d 987). Under La. R.S. 9:2800.6, a plaintiff has the burden of proving that (1) the condition of the floor created an unreasonable risk of harm; (2) the risk of harm was reasonably foreseeable; (3) the merchant created or knew or should have known of said condition; (4) the merchant failed to exercise reasonable care; and (5) the condition was a cause in fact of the accident.

The presence of a hazardous condition, as required by La. R.S. 9:2800.6(B)(1), is satisfied when the fall results from an unreasonably slippery floor. Pena v. Del-champs, Inc., 2006-0364 (La.App. 1 Cir. 3/28/07), 960 So.2d 988, 991, unit denied, 2007-0875 (La.6/22/07), 959 So.2d 498 (citing Stockwell v. Great Atlantic & Pacific Tea Company, 583 So.2d 1186, 1188 (La.App. 1st Cir.1991). Whether measures taken by a merchant were reasonable must be determined in light of the circumstances of each case. Valley v. Specialty Rest. Corp., 98-0438 (La.App. 4 Cir. 1/19/99), 726 So.2d 1028, 1035, writ denied, 99-0478 (La.4/1/99), 742 So.2d 560 (citing Thompson v. Stalnalcer’s Restaurant, Inc., L93-1447, pp. 4-5 (La.App. 3 Cir. 6/1/94), 640 So.2d 733, 736, unit denied, 94-1799 (La.10/14/94), 643 So.2d 165)). Nevertheless, when proper signage is used to warn patrons of the floor’s condition, a wet floor does not create an unreasonable risk of harm. See Rowell v. Hollywood Casino Shreveport, 43,306 (La.App. 2 Cir. 9/24/08), 996 So.2d 476, 479.

In the instant case, it is acknowledged that Ms. Schroeder slipped in an area that had recently been mopped. Thus, we find the condition of the floor, created by a Walgreens’ employee, presented an unreasonable risk of harm and Ms. Schroeder’s fall was reasonably foreseeable. After the floor was mopped from the soda spill, a chair and step stool were used to caution off the area and a warning sign was placed adjacent to the wet area. In light of these facts, we believe this was not an adequate or reasonable way of notifying customers of a wet floor and therefore Walgreens failed to exercise reasonable care. Accordingly, the trial court properly granted plaintiffs motion for partial summary judgment and denied defendant’s motion for summary judgment.

DECREE

For the forgoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . La. C.C.P. art. 966 was amended in 2013 and again in 2014. These amendments are not implicated in the issues presented in this appeal. See 2013 La. Acts No. 391, § 1, effective August 1, 2013, and 2014 La. Acts No. 187, § 1, effective August 1, 2014.

      . La. R.S. 9:2800.6 states in pertinent part:
      A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
      B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
      (1)The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
      (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
      (3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.