author: Judge Rosemary Ledet LOVE, J., DYSART, J., BARTHOLOMEW-WOODS., J.,

text:
    STATE of Louisiana IN the INTEREST Z.D.
    NO. 2017-CA-0616
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 6, 2017

      Leon Cannizzaro, DISTRICT ATTORNEY, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, J. Taylor Gray, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLANT/STATE OF LOUISIANA
    (Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Regina Bartholomew Woods)
   Judge Rosemary Ledet

hln this appeal, the State seeks review of the juvenile court’s finding that Z.D. is not a child in need of care as to his father. For the reasons that follow, we find that we lack appellate jurisdiction and therefore dismiss the State’s appeal.

STATEMENT OF THE CASE

On May 2, 2017, the State filed a petition, alleging, inter alia, that Z.D.’s father is incarcerated in Texas and requesting that Z.D. be adjudicated a child in need of care as to his father. The matter was then set for adjudication. At the adjudication hearing, the juvenile court found that Z.D. was not a child in need of care as to his father. The juvenile court then set the matter for “case review” on July 20, 2017. This appeal followed.

DISCUSSION

Article 330(B) of the Louisiana Code of Criminal Procedure provides that, “[i]n ... child in need of care proceedings pursuant to Title VI ... an appeal may be taken only after a judgment of disposition ... [and] shall include all errors |aassigned concerning the adjudication and disposition.” The record in this case does not contain a judgment of disposition as to Z.D.’s father. Accordingly, we find that we lack appellate jurisdiction over this case.

DECREE

For the foregoing reasons, we dismiss the State’s appeal.

APPEAL DISMISSED

LOVE, J., CONCURS IN THE RESULT WITH REASONS

DYSART, J., DISSENTS, WITH REASONS

BARTHOLOMEW-WOODS, J., DISSENTS WITH REASONS

LOVE, J.,

CONCURS IN THE RESULT WITH REASONS

IH respectfully concur in the result. I write separately because, unlike the majority, I would exercise this Court’s discretion to convert the appeal to an application for supervisory review and deny the. writ.

I find the record contains a ¿judgment of disposition as to Z.D.’s father. The juvenile court’s June 27, 2017 judgment states:

Considering the testimony.of.the witness taken under oath and' the information provided to the Court, the Court finds that the State did not meet its burden regarding the father in this matter for insufficient evidence. . .IT IS ORDERED, ADJUDGED AND DECREED that the child is hereby found NOT to be a Child in Need of Care as to the father, [J.B.],

Absent from the judgment is the'appropriate decretal language, either disposing of or dismissing the State’s, child in need of care petition. See La. C.Cr.P. art. 330(B). When a “judgment does not contain the appropriate decretal language [either] disposing of or dismissing [the State’s] child in need of care petition,, [an appellate court] cannot consider it as a final judgment for purpose of an appeal.” State in Interest of J.C., 16-0138, p. 6-7 (La. App. 1 Cir. 6/3/16), 196 So.3d 102, 107. Nevertheless, when the “litigation would have been terminated had the | ^district court included the proper decretal language dismissing the petition, [an.appellate court can] exercise [its] discretion and convert th[e] appeal to an application for supervisory writ.” Id., 16-0138, p. 7, 196 So.3d at 107.

The record contains a judgment of disposition, however, it simply lacks the necessary decretal language to be considered a final appealable judgment. Considering the seriousness of cases involving a child in need of care, I would exercise our discretion and convert the present appeal to an application for supervisory review. Therefore, I address the trial court’s ruling below.

In determining whether a child is in need of care, the court “is vested with great discretion [,] and such a decision will not be reversed [... ] absent a showing of abuse of that discretion.” State in Interest of S.T., 14-0731, p. 3 (La. App. 4 Cir. 1/28/15), 158 So.3d 944, 946 (quoting State in the Interest of D.S., 04-0327, p. 3 (La. App. 4 Cir. 7/28/04), 881 So.2d 764, 766). The June. 27, 2017 judgment sets forth reasonable measures for the child’s care in contemplation of the cáse plan goal for reunification/adoption upon the court’s approval. Likewise, it put orders in place with respect to Z.D.’s mother, who is required to participate and successfully complete court-mandated counseling and “monthly medication management meetings” as well as “continue to maintain safe and stable housing free of hazards.” The juvenile court judge is in a better position, having heard the testimony presented and being familiar with the case history, to determine what is in the best interests of the child. Thus, I find no abuse of the juvenile court’s discretion.-1 would deny the writ.

Accordingly, I concur in the result but for the reasons addressed hérein.

DYSART, J.,

DISSENTS, WITH REASONS.

| ^though the record does not contain a judgment of disposition, it is clear from the trial court’s ruling that it dismissed the State’s child in need of care petition, setting the matter for a case review hearing, and not a disposition hearing..Thus, I respectfully dissent- as I find that the trial court erred in not finding Z.D. to be a child in need.of care as to his father, J.B.

The purpose of Title 6, Child in Need of Care, of the Louisiana Children’s Code is to protect children whose physical or mental health and welfare is substantially at risk of harm by abuse, neglect, or exploitation. La. Ch.C. art. 601. The health, safety and best interest of the child are of paramount concern. Id.; see also, State in the Interest of D.A., 10-1040, p. 7 (La.App. 5 Cir. 6/14/11), 70 So.3d 960, 963. To reverse a factfinder’s determination of fact, an appellate court must review the record in its entirety and find that a reasonable factual basis does not exist, and further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, through DOTD, 617 So.2d 880 (La. 1993); State in the Interest of D.H., 04-2105, pp. 7-8 (La.App. 1 Cir. 2/11/05), 906 So.2d 554, 560.

After reviewing the record in its entirety and considering the best interests of Z.D., I find that it would not be a prudent use of judicial resources to require a | ¡^disposition hearing prior to our ruling on the-merits of the child in need of care petition. I would reverse the .ruling of the trial court and find Z.D. to be a child in need of care as to his father, J.B.

BARTHOLOMEW-WOODS., J.,

DISSENTS WITH REASONS.

hi respectfully dissent from the result reached by the majority. Whether we were to consider the merits of this matter as an appeal, or were to. convert this matter to be considered on the. merits under our supervisory jurisdiction, I would find that the juvenile court abused its discretion, resulting-in an. adjudication that Z.D. is not a child in need of care. Specifically, the juvenile court held as it did after noting the State relied upon hearsay evidence to which there was no objection. However, the law is clear that an “adjudication hearing shall be conducted according to the rules of evidence applicable to civil proceedings.” La.Ch.C. art.663(A). The failure to object constitutes a waiver of the, right to object to admissibility, and thereafter, the evidence may be considered and given probative effect. Guedon & Assocs., Inc. v. Haik, 533 So.2d 1256, 1260 (La.App. 4 Cir. 1988). I am unaware'of any jurisprudence under the current circumstances wherein a trial court can supply or sustain an objection that was never offered. Accordingly, I would reverse.

      . The petition also alleged a pattern of abuse and neglect by Z.D.'s mother and requested that Z.D. also be adjudicated a child in need of care as to his mother. Z.D.’s status as a child in need of care as to his mother is not an issue before the court in this appeal.

      . See La. Ch.C. art. 782; also Medus v. Medus, 379 So.2d 21, 23 (La. App. 3rd Cir. 1979) (finding the minute entries and court orders constituted judgments of disposition within the meaning of the former version of La. Ch.C. art. 782(C)).

      . La. Ch.C. art. 330(B) provides, ”[i]n., .child in need of care proceedings... an appeal may be taken only after a judgment of disposition ... [and] shall include all errors assigned concerning the adjudication and disposition.”


source: Caselaw Access Project

author: Judge Roland L. Belsome McKAY, C.J.,

license: Public Domain

text:
    HR MILAN, LLC v. MONA’S RESTAURANT, Karim Taha, Representative of Mona’s Restaurant, Nihad Monem, Representative of Mona’s on Elysian Field’s and Mihad Monem
    NO. 2017-CA-0491
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 6, 2017

      Joaquin Shepherd, SHEPHERD LAW FIRM, 1795 W Causeway Approach, Suite 102, Mandeville, LA 70471, COUNSEL FOR PLAINTIFF/APPELLEE
    Joseph B. Landry, THE LAW OFFICES OF JOSEPH B. LANDRY, APLC, 3015 19th Street, Metairie, LA 70002, Michael G. Gaffney, Christopher M. Gaffney, GAFFNEY & GAFFNEY, ALC, 3015 19th Street, Metairie, LA 70002, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Roland L. Belsome)
   Judge Roland L. Belsome

_JjThe Appellants, Mona’s Restaurant, Karim Taha representative of Mona’s Restaurant, Nihad Monem representative of Mona’s on Elysian Fields, and Nihad Mon-em, challenge the trial court’s denial of their Exception of Insufficiency of Service of Process and the granting of a Petition of Eviction in favor of HR Milan, LLC. For the following reasons, we affirm.

Statement of Facts

On May 24, 2005, business partners, Karim Taha and Nihad Monem, executed a lease with HR Milan (Milan) to operate a restaurant at 1120 South Carrollton Avenue in New Orleans. Initially, the partners opened as Mona’s Restaurant. That restaurant was an expansion for Mr. Taha and Mr. Monem’s corporation, Mona’s on Elysian Fields. At the time the lease was executed, Mona’s on Elysian Fields was named as lessee. Mr. Taha executed the lease as a representative of Mona’s Restaurant and Mr. Monem signed as an in solido obligor and guarantor.

| ?The lease contained renewal options for five-year periods. The lease for Mona’s Restaurant was renewed on June 7, 2010, and again on February 27, 2015. Both renewals adopted the terms and conditions of the original lease; and were signed by Mr. Taha as representative of Mona’s Restaurant.

Procedural History

In January of 2017, Mona’s Restaurant failed to pay its monthly-rent. A notice of default was sent by Milan on January 12, 2017. Mona’s Restaurant did not pay February’s rent. Milan sent a notice to vacate the property on February 6, 2017.

On February 13, 2013, a Petition for Concursus was filed by Mr. Taha in Civil District Court for the Parish of Orleans seeking leave of court to deposit rent payments into the registry of the court. The petition asserted that the* monies deposited may be owed in all or in part to Milan, Mr. Monem, and/or the City of New Orleans. Thereafter, Milan filed its Petition for Eviction on February 24, 2017. Mona’s Restaurant and Mr. Taha filed an Exception of Insufficiency of Service of Process and an Answer to the Petition for Eviction. In response to the Petition for Con-sursus, Milan filed an Exception of No Cause of Action and an Answer.

laThe Court held a hearing on April 2, 2017 to hear the Exception of Insufficiency of Service of Process and the Petition for Eviction. After hearing the testimony of Mr. Monem, the trial court denied the exception. After hearing additional testimony, the trial court granted the eviction. This appeal followed.

Assignments of Error

On appeal, the Appellants maintain that the trial court erred in finding that service of the Petition for Eviction was proper. The Appellants also argue that, for various reasons, the trial .court erred in granting a Judgment of Eviction against them.

Exception of Insufficiency of Service

The returns on citation that are in the record indicate that personal service of the Petition for Eviction was made on Mr. Monem. Mr. Taha claims that he was never properly served. He asserts that since he signed the lease as the representative of Mona’s Restaurant and he was “doing business as” (“DBA”) Mona’s Restaurant, the service had to be made on him not‘Mr. Monem. The trial court disagreed and found service to be proper and denied the exception.

Prior to denying the'exception, the trial court heard the testimony of Mr. Monem. Mr. Monem testified that he and Mr. Taha were equal members of Mona’s on Elysian Fields, LLC.- That corporation originally opened the Carrollton Street location of Mona’s Restaurant. He further testified that sometime after the execution of the original lease, Mona’s on Elysian Fields, LLC ceased to exist. His testimony is clear, that after the corporation was dissolved he and Mr. Taha operated Mona’s Restaurant as 50/50 partners/owners. The partnership was not | ¿registered with the Louisiana Secretary of State. Mr. Monem claimed that the restaurant was a “DBA” for the two men. After hearing the testimony, the trial court denied the exception.

In determining whether the trial court erroneously denied the exception we 'first look to La. C.C.P. art. 4701. Article 4701 provides in pertinent part:

When a lessee’s right of occupancy has ceased because of the termination of the lease by expiration of its term, action1 by the lessor, nonpayment of rent, or for any other .reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee..

We find that the record clearly shows that the lease was signed by Karim Taha as a representative of Mona’s Restaurant. Each signed extension of the original lease agreement is titled “Lease Agreement for Mona’s Restaurant.” Mona’s Restaurant was the lessee.

Furthermore, regardless of whether Mr. Taha and- Mr. Monem’s business structure is considered a partnership or an unincorporated association, service of process would be proper on Mr. Monem. La. C.C.P. art. 1263 provides-that “Service of citation or other process on a partnership is made by personal service on a partnerand La. C.C.P. art. 1264 provides . that service on an unincorporated association is properly made by personal service on “a managing official, at any place where the business of the association is regularly conducted.”

Mr. Monem’s testimony established he was a 50% owner of Mona’s Restaurant. Service of the Petition for Eviction on Mr. Monem was proper. Therefore, we find no error on the part of the trial court in denying the exception.

Petition for Eviction

Again, the Petition for Eviction was predicated on the failure to pay rent for the months of January 2017 and February 2017. Prior to granting the judgment of ^eviction, the trial court heard the testimony of Laura Russell,* representative' for Milan and Mr; Monem, co-owner of Mona’s Restaurant. •

Ms. Russell’s testimony was that in 2016 it was brought to her attention that Mona’s Restaurant was experiencing some eléctrical problems; She claimed it was a matter that was resolved with a new electrical panel being installed on the building at a cost of $5,000.00. Ms. Russell also acknowledged some complaints about an unusual smell that possibly related -to a plumbing problem. She testified that a plumber was sent out to trouble shoot and make any necessary repairs on more than one occasion. Other than those two issues, Ms. Russell stated that no other complaints about the building or lease were made to her prior to Mona’s Restaurant failing' to pay rent for January 2017 and February 2017.

Mr. Monem through his testimony suggested that although the electrical panel had been replaced he -still experienced intermittent electrical problems. Additionally, he stated that he thought there was a smell present on the premises, ,a complaint that he previously raised with Milan to be remedied. However, he did not contradict Ms. Russell's testimony that plumbers had been sent to investigate the smell on more than one occasion. Mr. Monem further testified that after approximately twelve years of occupying the premises he read the lease and felt as though he was paying too much for rent. He claims that conclusion was drawn from the fact that he should have been occupying the entire building which included two upstairs residential units. That concern was never presented to Milan. Instead, once Mr. Monem came to that conclusion, he acknowledged that he unilaterally decided to withhold the rent.

I Jn the trial court and on appeal, the Appellants maintain that the deposit of rents into the registry of the court, through the Petition for Concursus, prior to the judgment of eviction was sufficient to vitiate the notice to vacate. In support of this argument the Appellants cite to Kingfish Development, L.L.C. v. Press It No. 1. In Kingfish, this Court acknowledged that Press It was in default of the lease for failure to timely pay electrical utility payments, but found that Kingfish’s subsequent acceptance of the payments by its attorney vitiated that default. On that issue, this Court wrote:

Louisiana law is well-settled that the acceptance of rent vitiates- default. Courts in this state have consistently held that when rental payments have been accepted after the notice to vacate, the notice is vitiated and the tenant’s possession is maintained.

In this case, the Appellants suggest that Milan’s filing of an answer to the Petition for Concursus, asserting a claim to the money deposited in the registry court, equates to “constructive acceptance.” Therefore, the notice to vacate was vitiated. The Appellants have not cited to and this Court was unable to find any case law that supports the theory of “constructive acceptance” of rents' in an eviction proceeding. Also, the Appellants’ Petition for Cbncusus alleges that several parties, including Mr. Monem, may' have. rights to the money deposited. So, even though Milan filed an answer' to assert ’its rights, Milan was not deemed to be the rightful owner of .the funds nor was. Milan put in' possession of the funds any time prior to the judgment of eviction. Therefore, this case is distinguishable from Kingfish. because Milan did not receive or accept any past due rental payments prior to the judgment of eviction.

17Conclusion

For the reasons discussed, the trial court’s rulings are affirmed.

AFFIRMED

McKay, C.J., Dissents with Reasons

McKAY, C.J.,

DISSENTS WITH REASONS

hi respectfully dissent from the majority opinion and would reverse the judgment of the trial court for the reasons that follow.

Karim Taha is the only defendant who signed the lease agreement. However, Karim Taha was never served. The Sheriff s return showing personal service upon Karim Taha through Nihad, is on its face, improper service. There is no evidence in the record that Nihad had authority to represent Karim Taha for purposes of serving this eviction proceeding. There is no evidence that any defendant other than Karim Taha signed the lease agreement or had any right of occupancy or possession of the leased premises.

The evidence adduced at trial also shows that the rent for January 2017 through April 2017 was paid to the court’s registry in a concursus proceeding. The evidence further shows that the monthly rents were deposited into the registry of the court in the amounts of $4,500.00 per month were accepted by the landlord after the filing of the notice to vacate and after the filing of the petition for eviction and pule to show cause. In a summary proceeding, the court must look to see if the rent was paid and/or if the rent was accepted after the notice to vacate was given. If so, the notice is vitiated and the tenant is entitled to possession of the leased |2premises. See Bowling USA, Inc. v. Genco, 536 So.2d 814 (La.App. 4 Cir. 1988); La. C.C.P. Arts. 4701, 4702, and 4731. In this case, the rent was paid and the landlord accepted it after posting the notice to vacate and the filing of petition for eviction.

      . By January 2017, the restaurant was no longer being operated as Mona’s Restaurant. Mr, Taha and Mr. Monem had changed the name to Uptown Pizza and Wings.

      . The Petition for Concursus was captioned Karim Taha v. HR Milan, LLC, Nihad Monem, and City of New Orleans.

      . The petition also sought to hav.e all costs and fees deducted from the deposits.

      . The named defendants in the Petition for Eviction are Mona’s Restaurant, Karim Taha representative of Mona’s Restaurant, Nihad Monem representative of Mona’s on Elysian Fields, and Nihad Monem.

      . Paragraph 5 of the lease provides in pertinent part: "[t]his lease is made for use by Lessee of the premises let as a RESTAURANT...”

      . Kingfish Dev., L.L.C. v. Press It No. 1 New Orleans, LLC, 13-1113 (La. App. 4 Cir. 3/26/14), 135 So.3d 1232.

      . Kingfish, p. 6, 135 So.3d at 1235 (citations omitted) (emphasis added).


author: • CRAIN, J. HOLDRIDGE, J.,

text:
    STATE of Louisiana v. Joseph Michael MOULTRIE
    NO. 2014 KA 1535-R
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 14, 2017

      • Joseph Waitz Jr., District Attorney, Marian M. Hamilton, Assistant District Attorney, Houma, Louisiana, Attorneys for Plaintiff/Appellee, State of .Louisiana
    Margaret S. Sollars, Thibodaux, Louisiana, Attorney for Defendant/Appellant, Joseph Michael Moultrie
    BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
   • CRAIN, J.

|?The defendant, Joseph Michael Moul-trie, was convicted of possession with intent to' distribute cocaine and,, after admitting to his status as a habitual offender, was adjudicated a second-felony habitual offender and sentenced to twenty years imprisonment at hard labor without benefit of probation or suspension of sentence. See La. R.S. 40:967(A)(Z). On original appeal, this court determined the search of the barbeque grill where, the drugs were found violated the defendant’s constitutional rights, granted the defendant’s motion to suppress, and reversed the defendant’s conviction that was dependent upon the drug evidence. The Louisiana Supreme Court reversed, finding the defendant failed to make a threshold showing of any reasonable expectation of privacy in the grill, and remanded the matter to this court for. consideration of the defendant’s argument that the evidence was insufficient to support his conviction of possession with intent to distribute cocaine. State v. Moultrie, 14-1535 (La. App. 1 Cir. 10/23/15), 182 So.3d 1017, rev’d, 15-2144 (La. 6/29/17), 224 So.3d 349 (per curiam). We affirm the conviction, habitual offender adjudication, and sentence.

DISCUSSION

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging sufficiency of evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence, both admissible and inadmissible, viewed in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Oliphant, 13-2973 (La. 2/21/14), 133 So.3d 1255, 1258-59; see also La. Code Crim. Pro. art. 821B; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). When circumstantial evidence forms the basis for conviction, the jsevidence, “assuming' every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438; Oliphant, 133 So.3d at 1258.

The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the. evidence establishes guilt beyond a reasonable doubt. State v. Mire, 14-2295 (La. 1/27/16), — So.3d —, —(2016 WL 314814). Rather, appellate review is limited to determining whether facts established by direct evidence and inferred from the circumstances established-by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty.of every essential element of the crime. State v. Alexander, 14-1619 (La. App. 1 Cir. 9/18/15), 182 So.3d 126, 129-30, writ denied, 15-1912 (La. 1/25/16), 185 So.3d 748. The weight given evidence is not subject to appellate review; therefore, evidence will not be reweighed by an appellate court to overturn a fact finder’s determination of guilt. State v. Wilson, 15-1794 (La. App. 1 Cir. 4/26/17), 220 So.3d 35, 40-41.

It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II, /which includes cocaine. See La. R.S. 40:964, Schedule 11A(4); La. R.S. 40:967C. The defendant does not dispute the amount of cocaine seized or that the substance seized was actually cocaine. Instead, he argues the state’s evidence is insufficient to prove he put the drugs in the grill. In his brief he contends the jury was asked to make the assumption that because he was the only person outside, he was the only one who could have hidden the drugs. According to the defendant, the “very real possibility of someone else putting the [drugs] there was never eliminated.” Although the defendant frames his argument in terms of proof of who put the drugs in the grill, the only relevant inquiry is whether the state proved the defendant possessed the Ldrugs. Accordingly, we consider the sufficiency of the evidence demonstrating the defendant’s actual -or constructive possession of cocaine.

The state is not required to show actual possession of the drugs by a defendant to establish the element of possession. Constructive possession is sufficient. It is well settled, that the mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute constructive possession. State v. Toups, 01-1875 (La. 10/15/02), 833 So.2d 910, 913. Nonetheless, a person in the area of the contraband can be considered in constructive possession if the illegal substance is subject to his dominion and control. See State v. Trahan, 425 So.2d 1222, 1226 (La. 1983). Furthermore,- a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug. State v. Gordon, 93-1922 (La. App. 1 Cir. 11/10/94), 646 So.2d 995, 1002.

A determination of whether there is possession sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include (1) his knowledge that illegal drugs were in the area, (2) his relationship with the person, if any, found to be in actual possession, (3) his access to the area where the drugs were found, (4) evidence of-recent drug use by the defendant, (5) his physical proximity to the drugs, and (6) any evidence that the particular area was frequented by drug users. See Gordon, 646 So.2d at 1002. Guilty knowledge, an essential component of constructive possession of contraband, may be inferred from the circumstances of the case. State v. Pigford, 05-0477 (La. 2/22/06), 922 So.2d 517, 521 (per curiam),

Agents Dallas Bookenberger and Joseph Renfro .of the Terrebonne Parish Sheriffs Office narcotics task force testified at both the motion to suppress hearing and trial that the defendant was the only person on the street when they arrived. |,-Aside from a woman briefly looking out of her trailer door, the defendant was the only person around and the only one seen by the agents. When the defendant saw the agents approach, he moved quickly out of their sight toward the grill, then returned toward the agents at a slower pace. Agent Renfro testified he had seen this behavior many times before, and that it usually meant that the suspect was getting rid of contraband. Further, as the supreme court pointed out in its consideration of the suppression of the evidence issue, one of the agents noticed the grill’s lid was slightly askew with dew that had been disturbed on the handle. See Moultrie, 224 So.3d at 351.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder’s determination of guilt. State v. Taylor, 97-2261 (La. App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 993342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1 Cir. 1985). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury heard all of the testimony and viewed the physical evidence presented to it at trial and found the defendant guilty. The identification of the defendant as the person who placed the drugs inside the grill was established. The defendant did not testify or offer any counter evidence. In finding the defendant guilty, the jury clearly rejected the defense’s theory that someone else could have put the drugs in the grill. See Moten, 510 So.2d at 61.

Viewing the evidence in the light most favorable to the state, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of possession with intent to distribute cocaine. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

Holdridge, J., dissents with reason.

HOLDRIDGE, J.,

dissents.

hi respectfully dissent. I conclude that no rational trier of fact could find that the state proved the element of possession beyond a reasonable doubt.

In reviewing a claim as to the sufficiency of evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). When circumstantial evidence forms the basis for a conviction, the evidence “assuming every fact to be proved that the evidence tends to prove... must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438; State v. Oliphant, 2013-2973 (La. 2/21/14), 133 So.3d 1255, 1258-59. In this case, in order to convict the defendant of possession with intent to distribute, the state first had to prove beyond a reasonable doubt that the defendant possessed the cocaine found in the barbecue grill. The state can meet this element by proving the defendant was in actual physical possession or was in constructive possession of the cocaine. Since the defendant clearly was not in actual physical possession of the cocaine at the time it was uncovered by the agents, the state was required to prove that the defendant had constructive possession of the cocaine. See State v. Trahan, 425 So.2d 1222, 1226 (La. 1983). In order to meet this burden, the state was required to prove beyond a reasonable doubt that the defendant exercised dominion and control over the cocaine. Id.

[git is well settled that the mere presence of a defendant in the area of the contraband or evidence seized does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession. State v. Toups, 2001-1875 (La. 10/15/02), 833 So.2d 910, 913. Thus, the defendant’s presence in the area where the cocaine was found was insufficient to establish constructive possession of the cocaine. Moreover, according the Louisiana Supreme Court in State v. Moultrie, 2015-2144 (La. 6/29/17), 224 So.3d 349 (per curiam), neither thé state nor the defendant proved “the ownership of the grill”. The court observed that the grill was never seized as evidence and was never identified from any photograph as the grill belonging to the defendant’s mother. Based on the Moultrie analysis, the defendant, having no connection to the grill, simply could not exercise dominion and control over the grill in which the drugs were found, let alone the contents of the grill.

The only evidence which in any way connected the defendant to the cocaine was the testimony of Agent Renfro that the defendant moved quickly out of the agents’ sight toward the grill and then returned toward them at a slower pace. Also, one officer noticed the grill “whose lid was slightly askew with dew that had been disturbed on the handle.” These facts do not establish beyond a reasonable doubt that the defendant had constructive possession of the grill’s contents. It is just as plausible to conclude that the defendant became nervous when he saw the police and, knowing he had not. committed a crime, walked slowly back towards the agents. Further, the lid of the grill could have been slightly askew and the dew disturbed on the handle because an animal in the neighborhood jumped on the grill. I find the majority errs in finding from these facts that “the identification of the defendant as the person who placed the drugs inside the grill was established.” A | afact finder could only make a connection between these “facts” and the defendant’s identification as the person who placed the drugs inside of the grill by resorting to sheer speculation. Therefore, I find that the state did not prove that the defendant exercised dominion and control over the grill or its contents.

Because it was relying on circumstantial evidence, in order to convict the defendant of possession of cocaine, the state was required to exclude every reasonable hypothesis of innocence. It did not do so. Any person in this high crime area could have placed the cocaine inside the grill. The evidence showed that the defendant was in the area because his mother lived there and the evidence demonstrated that he often visited his mother. The defendant walked away when he saw the officers, but walked back toward them to speak to them rather than fleeing the area, indicating a lack of guilty knowledge. Also, the dew on the grill could have been disturbed for any number of reasons. Sensing that the state failed to carry its burden of proof, the majority further reasons, “[t]he defendant did not testify or offer any counter evi-’ dence.” Of course, there is no obligation on the part of the defendant to prove his innocence. For all of the foregoing reasons, I find that the state failed to prove the element of possession and therefore failed to prove the defendant guilty of the crime of possession with the intent to distribute cocaine beyond a reasonable doubt.

      . In finding that the state met its burden of proving constructive possession, the majority notes that Agent Renfro testified that he had seen behavior similar to the defendant’s many times before and it usually meant that the suspect was getting rid of contraband. This testimony is not proof; it is merely rank speculation.


author: McCLENDON, J.

text:
    Dempsey PENDARVIS v. Doherty Michael JARREAU and Susan M. Jarreau
    2017 CA 0360
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 18, 2017

      Donnie L. Floyd, Kevon V. Howald, Prairieville, LA, and John-Paul Robert, Gonzales, LA, Counsel for Plaintiff/Appel-lee Dempsey Pendarvis
    Robert Ryland Percy III, Cody M. Martin, and Stephen P. Sheets, Ricky L. Ba-bin, Gonzales, LA, Counsel for Defendants/Appellees Doherty Michael Jarreau and Susan M. Jarreau
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McCLENDON, J.

j2Plaintiff appeals a judgment dismissing his suit as abandoned for failure to take a step in its prosecution for a period of three years. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The instant matter arises from a suit to partition property between the. plaintiff, Dempsey Pendarvis, and the defendants, Doherty Michael Jaireau and Susan M. Jarreau, which was commenced on December 13, 2010. The parties later entered a settlement agreement that partitioned the property, and a stipulated judgment to that effect was read, rendered and signed by the trial court on March 13, 2012. Thereafter, plaintiff placed notices of lis pendens on the property partitioned in the “Stipulated Judgment,” and defendants filed a rule for contempt on August 19, 2013. The rule for contempt was heard on October 3, 2013. Thereafter, the parties entered a stipulation that ordered plaintiff to remove all encumbrances on the property. Following the stipulation,, plaintiff subsequently filed a “Cancellation of Lis Pen-dens” in the record on October 25, 2013.

The record shows that no further action was taken in the underlying suit until May 26, 2016, when a motion to enroll as counsel of record on behalf of plaintiff was filed by attorney Jean-Paul Robert. Plaintiffs counsel then fax filed a “Witness List” into the record on October 17, 2016, and the original was received and filed on October 21, 2016.

On October 26, 2016, defendants filed an “Ex Parte Motion and Order to Dismiss for Abandonment.” Defendants’ motion was subsequently granted by an order signed on October 28, 2016. Plaintiff then filed a “Motion for New Trial” on November 7, 2016, which was denied by the trial court on November 14, 2016. Plaintiff subsequently filed a “Motion to Set Aside Dismissal Pursuant to La. C.C.P. Art. 561(4),” which motion was denied on December 13, 2016.

Plaintiff has appealed, assigning the following errors:

I. The district court erred in dismissing the claims of plaintiff/appellant Dempsey Pendarvis for abandonment because there were filings made by plaintiff/appellant Pendarvis prosecuting the case within three years.
| all. The district court erred in refusing to hear and grant plaintiff/appellant Dempsey Pendarvis’ La.C.C.P. Art. 561(4) Motion to Set Aside Dismissal.

DISCUSSION

Louisiana Code of Civil Procedure article 561 addresses abandonment and provides, in pertinent part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years[.]
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
(4) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriffs service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).

Louisiana Code of Civil Procedure article 561 imposes three legal requirements on plaintiffs: (1) a party must take some “step” in the prosecution or defense of the action; (2) the step must be taken in the proceedings and appear in the record of the suit, unless the action is formal discovery; and (3) the step must be taken within the legislatively-prescribed time period from the last step taken by either the plaintiff or the defendant. Louisiana Dept. of Transp. and Development v. Oilfield Heavy Haulers, L.L.C., 11-0912 (La. 12/6/11), 79 So.3d 978, 981.

Abandonment is not a punitive concept; rather, it is a balancing concept. Clark v. State Farm Mutual Automobile Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779, 787. Abandonment balances two equally sound, competing policy considerations: “on the one hand, the desire to see every litigant have his day in court, and not to lose same by some technical carelessness or unavoidable delay; on the other hand, the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription.” Id. Citing, Sanders v. Luke, 92 So.2d 156, 159 (La.App. 1 Cir. 1957).

Article 561 is to be liberally construed in favor of maintaining a lawsuit. Because dismissal is the harshest of remedies, any reasonable doubt regarding abandonment should be resolved in favor of allowing the litigation to continue. Louisiana Dep’t of Transp. & Dev., 79 So.3d at 981-82. The intention of Article 561 is not to dismiss suits as abandoned based on technicalities, but only those cases where plaintiffs inaction during the three-year period has “clearly demonstrated his abandonment of the ease.” Clark, 785 So.2d at 785-86 citing, Kanuk v. Pohlmann, 338 So.2d 757, 758 (La.App. 4 Cir. 1976), writ denied, 341 So.2d 420 (La. 1977).

Whether a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. Hinds v. Global Intern. Marine, Inc., 10-1452 (La.App. 1 Cir. 2/11/11), 57 So.3d 1181, 1183. On the other hand, whether a particular act, if proven, precludes abandonment is a question of law that we review by simply determining whether the trial court’s interpretative decision is correct. Id.

On appeal, plaintiff avers that the filing of the cancellation of lis pendens on October 25, 2013, began the tolling of the three-year abandonment period. The only filings in the record after that date are the May 26, 2016 motion to enroll and the October 17, 2016 witness list.

The parties do not dispute that the motion to enroll filed on May 26, 2016 was not a step in the prosecution or defense. As such, it could not interrupt the three-year abandonment period. See Paternostro v. Falgoust, 03-2214 (La.App. 1 Cir. 9/17/04), 897 So.2d 19, 22. Plaintiff contends, however, that the witness list fax filed on October 17, 2016, and received and filed on October 21, 2016, was a sufficient step |fiin the prosecution to interrupt the three-year abandonment period. In opposition, the defendants maintain that the mere filing of a witness list when there is no hearing or trial date pending is not a sufficient step in the prosecution of the case intended to hasten the matter towards judgment.

This court has not specifically addressed whether filing a witness list into the record is a sufficient step to interrupt the tolling of the three-year abandonment period. However, this court has previously found the following steps to be sufficient: motions for summary judgment that sought resolution of a suit (State ex rel. Div. of Admin., Office of Community Development v. Tujague, 15-1457 (La.App. 1 Cir. 4/15/16), 193 So.3d 223, 228); plaintiffs request for a conference to set timelines in a consolidated action (Dendy v. City Nat. Bank, 06-2436 (La.App. 1 Cir. 10/17/07), 977 So.2d 8, 13); and plaintiffs’ filing of requests for scheduling conferences to select deadlines for the parties to conclude all pretrial matters (Hidalgo v. Catfish Queen Partnership in Commendam, 06-1531 (La.App. 1 Cir. 5/4/07), 961 So.2d 434, 437-39). By contrast, this court has found the following steps insufficient to interrupt the tolling of the abandonment period: ongoing settlement negotiations outside of the record (Porter v. Progressive Specialty Ins. Co., 99-2542 (La.App. 1 Cir. 11/8/00), 771 So.2d 293, 294-95); correspondence outside of the record (R. L. Hall and Associates, Inc. v. Brunt Const., Inc., 15-0192 (La.App. 1 Cir. 11/9/15), 2015 WL 6951252 (unpublished)); and a motion to set a matter for trial that was submitted to the clerk but was returned unfiled for failing to comply with court rules (Parson v. Daigle, 96-2569 (La. App. 1 Cir. 12/29/97), 708 So.2d 746, 748).

While not controlling, our brethren of the Fifth Circuit have recently addressed whether filing a witness list is a sufficient step. In Lewis v. Jones, 16-48 (La.App. 5 Cir. 5/26/16), 193 So.3d 546, 550, the trial court had determined the action had been abandoned. The trial court noted that no motion to set trial or motion for a scheduling order had been filed by either party, and the plaintiffs’ witness list alone was- a “passive and gratuitous filing, just to try to interrupt the abandonment.” Id. On appeal, the Fifth Circuit noted that its review of- the jurisprudence revealed that there was no case directly on point addressing whether the filing of a witness list is' a “step” in the | ^prosecution. Id. at 549. After reviewing what courts have and have not deemed sufficient steps, the Fifth Circuit agreed with the trial court. Specifically, the Fifth Circuit concluded that under the facts presented .“the act of filing a witness list was the preparation to take a step toward the prosecution of a case, but did not hasten the matter to judgment.” Id. at 550. As such, the appellate court found no error in the trial court’s “finding that the filing of a witness list was not a step in the prosecution of [the] case.” Id.

In the instant case, -there was no motion to set the matter for trial or motion for a scheduling order filed, either prior to or along with the filing of the witness list. Moreover, the witness list filed by plaintiff only named the parties to the suit and an unnamed “[e]xpert as to valuation of property.” Considering the foregoing, we conclude that the filing of the instant witness list did not hasten the matter towards judgment. Therefore, it was • not a step sufficient to interrupt the three-year, abandonment period.

We recognize a plaintiff-oriented jurisprudential exception based on contra non valentem that applies when the failure to prosecute is caused by circumstances beyond the plaintiffs control. Clark, 785 So.2d at 784-85. Plaintiff notes the flooding that occurred around the Baton Rouge area in August of 2016. Counsel admits, however, that neither his office nor his home flooded. Also, the motion to enroll was filed on May 26, 2012, over two months prior to the August flood. Additionally, plaintiff filed the witness list almost five months after the motion to enroll. Under these circumstances, we cannot conclude that the jurisprudential exception would apply.

Considering the foregoing, we conclude that the trial court did not err in granting the defendants’ motion to dismiss for abandonment and did not err in denying the ^plaintiffs motion to set aside the dismissal. Plaintiffs assignments of error are without merit.

CONCLUSION

For the,' foregoing reasons,, the trial court’s October 28, 2016, judgment dismissing the underlying suit as abandoned is affirmed. Costs of this appeal are assessed to plaintiff, Dempsey Pendarvis.

AFFIRMED.

      . We need not decide whether the filing of the cancellation of lis pendens is a step in the prosecution or defense sufficient to prevent abandonment because, as noted below, there have been no additional steps taken by either party in prosecution or defense that hastens the matter toward judgment within three years of that filing.

      . In Paternostro, this court addressed motions involving counsel in the context of abandonment as follows:
      The jurisprudence clearly establishes that motions to withdraw or enroll as counsel or to substitute counsel are not considered formal steps before the court in the prosecution of the suit. Such motions grant to counsel the right to take steps, or to prepare to take steps, toward the prosecution or defense of a case, but are not considered steps because they do not hasten the matter to judgment.
      Id., 897 So.2d at 22.

      . The court noted that the following actions had been sufficient to prevent abandonment: filing of interrogatories; filing of answers to interrogatories; supplemental answers to interrogatories; filing of motions to compel answers to interrogatories; filing of requests for production of documents to a named party; filing of motions to take depositions; filing of transcripts of depositions; filing of motions to proceed in forma pauperis, filing of motions to set for trial; filing of joint stipulations dismissing certain parties; and payment of costs where payment was in response to a formal rule before the court by the clerk of court for the payment of a fee required in order to preserve the plaintiffs right to a jury trial. Lewis, 193 So.3d at 550 (Internal citations omitted). By contrast, the court noted that the following actions were not “steps’ in the prosecution or defense because they merely grant to counsel the right to take steps, or to prepare to take stakes toward the prosecution or defense of a case, but do not hasten the matter to judgment; a motion to terminate counsel of record; a request for production of documents from a non-party that was not served on all parties; and payment of court costs or the request for notice of hearings. Id. (Internal citations omitted.)


author: McClendon, j. WELCH, J.,

text:
    Russell Joseph PERRONE v. Shawn W. ROGERS Russell J. Perrone, individually, and as Provisional Administrator of the Succession of Randall William Perrone, Russell J. Perrone, John J. Perrone and Deborah H. Perrone v. Shawn W. Rogers Deborah H. Perrone and John J. Perrone, Jr. v. Shawn W. Rogers
    2017 CA 0509
    c/w 2017 CA 0510
    c/w 2017 CA 0511
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 18, 2017

      Frank W. Lagarde, Jr., Melanie M. Lic-ciardi, Jerald R. Madere, Metairie, Louisiana And Lee A. Archer, Lake Charles, Louisiana, Counsel for Plaintiff/Appellant Russell Joseph Perrone, Individually and as Provisional Administrator of the Succession of Randall William Perrone '
    James H. Gibson, Stacy N. Kennedy, Lafayette, Louisiana, Counsel for Defendant/Appellee Shawn W. Rogers
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McClendon, j.

I sIn this consolidated lawsuit asserting the tort of the intentional infliction of emotional distress, the plaintiff appeals a judgment of the trial court granting a motion for summary judgment in favor of the defendant and dismissing plaintiffs claim with prejudice. For the reasons that follow, we affirm. '

FACTUAL AND PROCEDURAL HISTORY

The plaintiff, Russell Joseph Perrone, was the identical twin brother of Randall Perrone, who died in February 2013, following surgery for a brain tumor. At the time of his death, Randall was engaged to be married to Logan Shaw. Following his diagnosis, but prior to surgery, Randall asked his close friend and attorney, Shawn W. Rogers, the defendant herein, to draft a will for him. Although Rogers initially declined to draft the will,- Randall sent him a document with his desired bequests that Rogers subsequently agreed to put in “a legal format” for Randall. On February 21, 2013, Randall executed his Last Will and Testament before another attorney. Randall died on February 27, 2013.

In the days following Randall’s death, the will became a primary source of tension between the Perrone family and Rogers. Russell avers that after Randall’s death, he retained an attorney who specialized in Louisiana succession law, who advised him of legal defects in the testament that Rogers prepared for Randall. According to Russell, when Rogers learned that Russell was going to be the executor of Randall’s succession and had retained an estate, attorney who was going to request the court to declare the will invalid, Rogers sent the following text message to Russell on April 3, 2013:

Thanks for putting my law license in jeopardy! Real f-ckin friend. I think you are a piece of sh-t your every breath is an embarrassment to your brothers memory it should have been you and not him. Don’t ever contact me again and when it is proven the Will is written correctly I will spend the rest of my life suing you for professional defamation until you don’t have a pot to p-ss in, I am also going to let Logan know that per the will she is entitled to 50% of Randy’s interest in the business. I hope you rot in h-11 while your brother you never cared about flourishes in heaven.

| ¿Thereafter, the Perrone family filed three, .separate lawsuits against Rogers. The basis of the lawsuits, as alleged by the Perrone family, is as follows. The Perrones own a fourth-generation family business, Perrone and Sons, Inc. Russell and Randall had 'an interest in the business, along with their parents', Deborah H. Per-rone and John J. Perrone, Jr., and brother, John J. Perrone, III. According to the allegations in the petitions, the testament that Rogers drafted was negligently drawn as it failed to provide that Randall’s shares of and equity interest in the Perrone family business remain in the family. Particularly, the Perrone family averred that Rogers failed to mention the shares in the will in any manner, and therefore, ■ the “Residuary Clause” of the will provided that the unmentioned assets of Randy were bequeathed in equal portions to Russell and to Logan. The family further asserted that this was entirely unintended by Randall.

After the lawsuits were filed, Russell filed a Partial Motion for Summary Judgment in this suit for the intentional infliction of emotional distress, which was denied by the trial court. Thereafter, on February 29, 2016, Rogers filed the motion for summary judgment that is the subject of this appeal. Therein, Rogers averred that Russell could not establish the elements of the intentional infliction of emotional distress, particularly that the text message was extreme and outrageous.

On November 3, 2016, the trial court held a hearing on Rogers’ motion for summary judgment and took the matter under advisement. On November 22, 2016, the trial court issued lengthy Reasons for Judgment and, on December 13, 2016, signers its judgment, granting the motion and dismissing the claim for intentional infliction of emotional distress in Suit No. 2014-10688.

Russell appealed and asserts that the trial court erred in granting the summary judgment.

DISCUSSION

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966A(3). The summary judgment procedure is favored and shall be' construed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966A(2). The burden of proof rests with the mover. Nevertheless^ if the mover will not bear the burden of proof at trial on the issue before the court on the motion for summary judgment, the mover’s burden does not require that he negate all essential elements ,of the adverse party’s claim, action, or defense, but rather ’to point to the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966D(1).

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the, trial court’s determination of - the issues. Mabile’s Trucking, Inc. v. Stallion Oilfield Services, Ltd., 15-0740 (La. App. 1 Cir. 1/8/16), 185 So.3d 98, 101, writ denied, 16-0251 (La. 4/4/16), 190 So.3d 1207. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the'party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is. material can be determined only in light of the substantive law; applicable to the case. Mabile’s Trucking, Inc., 185 So.3d at 102.

IfiThe tort of the intentional infliction of emotional distress was adopted as a viable cause of action in the supreme court case of White v. Monsanto Company, 585 So.2d 1205 (La. 1991). One who by extreme and outrageous conduct intentionally causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. White, 585 So.2d at 1209. Louisiana courts, like courts in other states, have set a very high threshold on conduct sufficient to sustain an emotional distress claim, and the Louisiana Supreme Court has noted that courts require truly outrageous conduct before allowing a claim even to be presented to a jury. Nicholas v. Allstate Ins. Co., 99-2522 (La. 8/31/00), 765 So.2d 1017, 1024-25; Sullivan v. Malta Park, 14-0478. (La.App. 4 Cir. 12/10/14), 156 So.3d 751, 757. In order to recover for intentional infliction of emotional distress, a plaintiff must establish (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. White, 585 So.2d at 1209.

Outrageous conduct is a nebulous concept, as it does not refer to any specific type of conduct and it may even refer to a pattern of conduct. Bustamento v. Tucker, 607 So.2d 532, 538 n.6 (La. 1992). The supreme court in White pointed out that the conduct must be so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. White, 585 So.2d at 1209. See also Nicholas, 765 So.2d at 1022. Mere insults, indignities, threats, annoyances, petty oppressions, orjjother trivialities are not enough to trigger liability; rather, persons must necessarily be expected to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. White, 585 So.2d at 1209. Not every verbal encounter may be converted into a tort; on the contrary, “some safety valve must be left through which irascible tempers may blow off relatively harmless steam.” White, 585 So.2d at 1209.

The distress suffered must be such that no reasonable person could be expected to endure it. Liability arises only where the mental suffering or anguish is extreme. Further, the defendant’s knowledge that plaintiff is particularly susceptible to emotional distress is a factor to be considered. But the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough. White, 585 So.2d at 1210. The actor’s conduct must be intended or calculated to cause severe emotional distress and not just some lesser degree of fright, humiliation, embarrassment, worry or the like. White, 585 So.2d at 1210. Moreover, summary judgment is a proper procedural method to consider a plaintiffs allegation that a defendant is liable for the intentional infliction of emotional distress, especially in light of the additional burden that such a plaintiff has of showing that the conduct was extreme and outrageous. Barrino v. East Baton Rouge Parish School Bd., 96-1824 (La. App. 1 Cir. 6/20/97), 697 So.2d 27, 32.

In his appeal, Russell contends that the April 3, 2013 text message was so extreme and outrageous that, immediately after receipt of the message, he suffered severe and debilitating depression and emotional trauma that required him to undergo counseling for eight months. To the contrary, Rogers asserts that the text message was not extreme and outrageous and maintains that none of the evidence presented by|s Russell created an issue of material fact as to whether the text message was extreme and outrageous under the circumstances.

The evidence presented in support of and in opposition to the motion for summary judgment established that Rogers was a close and personal friend of both Russell and Randall. Rogers was close enough with Russell and Randall that he was at the hospital with the Perrone family when Randall passed away. They had been friends for more than ten years. Text messages between Russell and Rogers beginning on March 5, 2013, showed the close relationship, referring to each other as “brother” and expressing brotherly love to one another. However, on March 25, 2013, Rogers stated in a text message: “I was upset that there was an attorney already involved and you didn’t even let me know that’s all I was upset about! Maybe I’m just being hyper sensitive and for that I apologize I certainly don’t want to make this harder for you.” He then texted: “By giving you unnecessary grief.” This was followed by the text message of April 3, 2013, that is at issue herein.

Several weeks later, on May 25, 2013, Rogers sent another text to Russell that stated: “FYI I never started this sh-t between us I just ended with a horrible message to you after I felt betrayed and lied to. I’m glad ya’ll are working things out. Good luck and best wishes.” Russell did not respond. On June 16, 2013, Rogers sent another text message telling Russell: “Happy Father’s Day! I hope you have a great day with your family.” Russell responded: “You too.”

We find that there are no material facts in dispute with respect to the text message of which Russell complains. The only issue to be determined is whether this outburst under the attendant circumstances was truly extreme and outrageous conduct. Upon our careful de novo review, the text message, although crude and offensive, did not meet the high threshold for an intentional infliction of emotional distress claim as it was not of such an extreme and outrageous nature as is necessary to prove entitlefnent to damages. It was not so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.

|nThe parties were all grieving as to the loss of Randall. Thus, while considering that Russell had just lost his identical twin brother, the one text message, sent by a good friend who obviously lost his temper, was not such that no reasonable person could endure it. The text messages before and after the one of April 3, 2013, show that Rogers was extremely upset at the time the text was sent, and Rogers apologized for the text message admitting it was “horrible.” The text message, while clearly insulting and distasteful, is not sufficient to trigger liability.

• As a matter of law, this single texbmes-sage does not support Russell’s conclusion that Rogers’ conduct under the circumstances presented was extremo and outrageous as set forth in White, Thus, under the undisputed facts of this case, summary judgment was properly granted, dismissing Russell’s, claim for the intentional infliction of emotional distress.

CONCLUSION

For the foregoing reasons, we affirm the December 13, 2016 summary judgment in favor of the defendant, Shawn W. Rogers. Additionally, all costs of this appeal are assessed against the plaintiff, Russell Joseph Perrone.

AFFIRMED.

Welch J. dissents with -reasons.

WELCH, J.,

dissents.

hi respectfully disagree with the majority opinion in this matter. The text message from Mr. Rogers, an attorney, that contained an overt threat of abuse of process, ie., “I will.spend the rest of my life suing you for professional defamation until you don’t have a pot to p-ss in,” could be construed by a trier of fact as “extreme and outrageous.” As such, this issue should be presented to a jury (or trier of fact) and is inappropriate for summary judgment, and I would reverse the judgment of the trial court.

Thus, I respectfully dissent.

      . The suits were all filed'on February 6, 2014: ‘The first, Suit No. 2014-10588, involves Russell’s claim in this matter for the intentional infliction of emotional distress. Suit No. 2014-10589 is a claim for legal malpractice against Rogers filed by Russell and his parents, Deborah and John. Suit No. 2014-10590, filed by Russell's parents, asserted a claim for defamation, public humiliation, and loss of consortium, The matters were consolidated in March 2014, and Suit No. 2014-10590 was voluntarily dismissed on November 7, 2016.

      . However, in his affidavit in support of the m'otion for summary judgment, Rogers attested that he told Randall that the information he wanted in his will did not reference his ownership -in the family business, that Randall responded that his family had the business ownership worked out, that Randall wanted any assets not mentioned in his will to be split between Russell and Logan and to please just put the information given to.him into a legal format, and that he did as Randall requested.

      .Rogers also asserted that Russell could not establish his claim for legal malpractice. In the December 13, 2016 judgment that granted the summary judgment and dismissed Russell's claim for the intentional infliction of emotional distress, the trial court also denied the motion for summary judgment as to the legal malpractice claim in Suit No. 2014-10589.

      . The Sullivan case is an example of one that stated a cause of action for the intentional infliction of emotional distress. Therein, the plaintiff, a 70-year-old terminally ill woman, living in an assisted living facility, who was legally blind and had been confined to a wheelchair for twelve years, was questioned in a deposition about her attorney husband’s affair with his associate. The defendant’s attorney knew his assertions, posed as affirmative statements, were false. The court found that based on the allegations, the plaintiff stated a cause of action for the intentional infliction of emotional distress. Sullivan, 156 So.3d at 752. In Ratcliff v. Boydell, 93-0362 (La.App. 4 Cir. 4/3/96), 674 So.2d 272, 280, the defendant represented the plaintiff and her minor child in a wrongful death action following the death of her husband. What began as a fee dispute between client and attorney degenerated into events that constituted, inter alia, intentional infliction of emotional distress. The behavior over six years included the filing of more than sixty exceptions and motions, six devolutive appeals, a baseless seven million dollar defamation suit, the use of a private process server to serve the plaintiff at home and at work, the filing of a defamation suit against the plaintiff's new attorney and that attorney’s spouse, and the admission that the attorney intended his conduct to cause her distress because he was angry that she filed suit against him.

      . However, we note that the counselor’s treatment summary, dated March 25, 2014, submitted in support of Rogers' motion, showed office visits beginning on April 9, 2013, and ending on December 17, 2013, and makes no mention of the April 3, 2013 text message. The summary indicated that Russell sought counseling for grief issues surrounding the death of his identical twin brother. The summary also pointed out that a “significant portion of [Russell's] treatment was devoted to the topic of his brother's fiancé. Her relationship with [Russell] and his family precipitated an intensification of stressors throughout his treatment. She represents the triggering factor in the breakdown of [Russell’s] social support system.” Nor is the text message mentioned in any treatment notes. Nevertheless, in an October 17, 2016 affidavit, submitted by Russell in opposition, the counselor attested that the text message was the "principal cause of [Russell's] deep depression and severe emotional and mental symptoms and the reason he required psychological counseling.”

      . As to RusselUs argument regarding the exclusion of expert testimony, we are not bound by the conclusory opinions of experts on a legal question. See Bowman v. City of Baton Rouge/Parish, of East Baton Rouge, 02-1376 (La.App. 1 Cir. 5/9/03), 849 So.2d 622, 629, writ denied, 03-1579 (La. 10/3/03), 855 So.2d 315, Because the question of whether the text message was extreme and outrageous is ultimately a legal question for the court, we find that the trial court did not err in finding that the experts’ opinions -were not necessary in the determination of this issue. Further, because we find that, upon our de novo review, Rogers' conduct under the circumstances was not extreme and outrageous as - a matter of law, we need not specifically address Russell’s other arguments.


author: PENZATO, J.

text:
    EXCELTH, INC. v. STATE of Louisiana, THROUGH the DEPARTMENT OF HEALTH AND HOSPITALS
    2017 CA 0363
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 19, 2017

      Douglas L. Cade, Baton Rouge, Louisiana, Attorney for Appellant, State of Louisiana, through the Department of Health and Hospitals
    Carroll Devillier, Jr., Emily Black Grey, Baton Rouge, Louisiana, Attorneys for Ap-pellee, EXCELth, Inc.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

| ¿This is an appeal by Appellant, the State of Louisiana, through the Department of Health and Hospitals (LDH), of a judgment reversing LDH’s decision to recoup funds from Appellee, EXCELth, Inc. (EXCELth). For the reasons set forth below, we affirm the district court.

FACTS

EXCELth is a non-profit, federally qualified health provider located in New Orleans, Louisiana, which has been in operation since 1991 providing health and behavioral services to indigent patients in the area. Following Hurricane Katrina, the Centers for Medicare and Medicaid Services (CMS) established the Greater New Orleans Community Health Connection (GNOCHC), a Medicaid Demonstration Waiver Program under Section 1115(A) of the Social Security Act, for the purpose of providing health care services to the uninsured population that was not otherwise eligible for Medicaid programs. 42 USCA § 1315(a). The CMS distributed grant money to provide those health care services, and LDH implemented the program. The GNOCHC Waiver was set up as a 39 month program spanning four fiscal years, October 1, 2010, through December 31, 2013. Demonstration Years One, Two, and Three were limited to $30 million per year, and Demonstration Year Four was limited to $7.5 million.

EXCELth was a participant in the GNOCHC program and had two different facilities, one located in Gentilly and one in Algiers. In Demonstration Year One, October 1, 2010 through September 30, 2011, EXCELth received a total of $815,157.00 in advance payments. Advanced payments were made for Demonstration Year One with the understanding that there would be a ^reconciliation in the first year based on the actual clients served by the provider and the actual services provided. CMS required participating providers to submit all Demonstration Year One claims on an electronic claims system, referred to as the Electronic Data Interchange (EDI), by November 14, 2011. November 2011 was the first year that the GNOCHC program began using electronic submission of claims. The electronic claims system required the provider to submit claims to a billing agent, which communicated with one of several clearinghouses approved by LDH. The clearinghouse then transmitted information to Molina Medicaid Solutions (Molina), LDH’s fiscal intermediary, who handled claims processing. LDH was responsible for processing the GNOCHC claims via Molina and then provided the funds for paying the claims.

On October 14, 2011, all GNOCHC providers were notified that Molina would begin accepting “encounter claims” on October 17, 2011, for dates of service from October 1, 2010 through September 30, 2011. When EXCELth began preparing for electronic submission, it encountered problems with the electronic claims system and contacted Michael Magee, an LDH employee who was the program monitor for the GNOCHC program, for assistance.

EXCELth timely submitted claims for Demonstration Year One, but 1,190 of those claims were never processed by Molina. Instead, Molina put those claims in a “9999999” file (interchangeably referred to as a “999 file” or as “dropped claims”), and neither approved nor denied them. If information was missing or invalid, the GNOCHC program required Molina to return the unprocessed claims to the provider with a rejection letter listing the reasons for the return or denial of the claim. It is undisputed that Molina did not return the claims to EXCELth with a rejection letter nor did it deny the claims through the system.

14All claims were required to be submitted with a National Provider Identifier (NPI) number, a unique identifier assigned to each provider by a separate and distinct entity operated by the federal government, and a Medicaid provider number (provider number). Marisa Naquin, a former LDH employee who was the program manager for GNOCHC; testified that Molina had the incorrect NPI number for EXCELth and Molina had the responsibility to update its provider files. As a result of this error, 1,190 of EXCELth’s claims were placed in the 999 file and never processed.

Molina determined there was a problem and notified LDH that it would reprocess the dropped claims. However, Molina never reprocessed those claims of EXCELth. Therefore, Molina approved encounter claims of EXCELth for Demonstration Year One. in the amount of $164,036.96. Since LDH had paid EXCELth an advance payment of $816,517.00, it determined that EXCELth was overpaid by $661,120.04. LDH emailed a copy of the final reconciliation for Demonstration Year One to each GNOCHC provider on March 14, 2012. EXCELth did not contact LDH after receiving the reconciliation prior to March 31, 2012, the date the reconciliation was to be submitted to CMS. On April 13, 2012, EXCELth sent LDH a detailed listing of its claims that were never processed by Molina.

On April 18, 2012, LDH notified Michael Andry, the chief executive officer of EX-CELth, that the overpayment to EX-CELth identified in the final reconciliation report would be offset against EXCELth’s supplemental payment in accordance with GNOCHC guidelines.. Accordingly, LDH retained $651,120.04 against EXCELth’s original grant of $815,157.00 based on the approved encounter claims of $164,036.96. As a result, EXCELth received a net payment of $255,587.51 for Demonstration Year One because LDH determined.that EXCELth | ¿was entitled to a supplemental payment of $906,707.55 less the offset of $651,120.04.

PROCEDURAL HISTORY

After an informal hearing, LDH reaffirmed its decision to recoup.' the $651,120,04. EXCELth appealed the re-coupment to the Division of Administrative Law (DAL) and the matter was assigned to Administrative Law Judge (ALJ) Gregory Toney. LDH filed a motion for summary judgment, which ALJ Toney denied and issued a recommended order.

Pursuant to La. R.S. 49:992(D)(2)(b)(iii)(aa), which allows the head of the agency to approve, reject, or modify the recommended decision, the recommended order was sent to the LDH Administrative Review Unit to prepare the final administrative decision on behalf of the Office of the Secretary of LDH. On November 6, 2013, the LDH Administrative Review-Unit issued the final administrative .decision and reversed the recommended order of ALJ Toney.

On December 5, 2013, EXCELth filed a Petition for Judicial Review in the Nineteenth Judicial District Court. The district court held a hearing and reversed the LDH Administrative Review Unit’s grant of summary judgment and remanded the case to- the DAL for further proceedings.

Following the remand to the DAL, both LDH and EXCELth filed motions for summary judgment. LDH withdrew'its motion before the hearing, and EX-CELth’s' motion was denied. Thereafter, the case proceeded to trial before ALJ Karla Coreil. On December 17, 2015, ALJ Coreil issued a recommended order and decision stating that LDH incorrectly decided to recoup $651,120.04 from EX-CELth and that LDH’s decision be reversed.

The recommended order was sent to the LDH Administrative Review Unit to prepare a final administrative decision on behalf .of the Office of the Secretary of LDH. On February 22, 2016, the LDH Administrative Review Unit issued thermal administrative decision reversing the recommended decision and order of ALJ Coreil and upheld the recovery of $651,120.04 from EXCELth.

On March 22, 2016, EXCELth filed , a Petition for Judicial Review in the Nineteenth Judicial District Court, seeking to reinstate ÁLJ Coreil’s recommended decision and order to reverse the recovery of $651,120.04 from EXCELth and seeking recovery of reasonable litigation' expenses pursuant to La. R.S. 49:965.1. After a hearing on November 21, 2016, the district court ruled that LDH’s decision was not supported by a preponderance of the evidence, reversed LDH’s decision, and reinstated ALJ’s Coreil’s recommended decision and order, which the district court found was based on the evidence. The district court also ordered LDH to pay $7,500.00 in litigation costs and expenses in accordance with La, R.S. 49:965.1, as well as judicial interest from September 6,-2012. A judgment was signed in accordance therewith on December 16, 2016.

LDH appealed the December 16, 2016 judgment, and this court issued a rule to show cause, noting that the trial court’s judgment appeared to lack decretal language -with regards to a money.judgment. In response, the trial court issued an amended judgment signed October 6, 2017, clarifying the original judgment. The October 6, 2017 amended judgment satisfies the requirements for a final judgment. See La. C.C.P. art, 1918. Thus, we find that the amended judgment now contains sufficient decretal language to be a valid, final judgment, we maintain the appeal and address the merits.

ERRORS

LDH claims that the district court erred by (1) ignoring the acts and omissions of EXCELth which led to Molina’s failure to process many .of EXCELth’s claims and erred by holding LDH solely responsible for that, failure; (2) awarding EXCELth judicial interest even though EXCELth did not pray for judicial interest and Such interest was, not-provided by law; and (3) overstating the bamount by which EX-CELth was underpaid because the district court assumed Molina as solely responsible for its failure to process many of EX-CELth’s claims.

STANDARD OF REVIEW

The Louisiana Administrative Procedure Act (APA), La. R.S. 49:964(G), governs the judicial review of a final decision or order in an agency adjudication, providing that:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure; .
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or '
(6) Not supported and sustainable by a preponderance of the evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing , court - does not, due regard shall be given to the agency’s determination of credibility issues.

Any one of the six bases listed in the statute is sufficient to modify or reverse an agency determination. Doc’s Clinic, APMC v. State ex rel. Dept. of Health and Hospitals, 2007-0480 (La. App. 1 Cir. 11/2/07), 984 So.2d 711, 718, writ denied, 2007-2302 (La. 2/15/08), 974 So.2d 665. The APA further specifies that judicial review shall be conducted by the court without a jury and shall be confined to the record. La. R.S. 49:964(F).

When reviewing an administrative final decision, the district court functions as an appellate court. Doc’s Clinic, 984 So.2d at 718. Once a final judgment is rendered by the district court, an aggrieved party may seek review by appeal to the appropriate appellate court. La. R.S. 49:965. On review of the district court’s judgment, no deference is owed by -the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Carpenter v. State, Dept. of Health and Hospitals, 2005-1904 (La. App. 1 Cir: 9/20/06), 944 So.2d 604, 608, writ denied, 2006-2804 (La. 1/26/07), 948 So.2d 174. Thus, an appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency and not the decision of the district court. Our Lady of Lake Roman Catholic Church, Mandeville v. City of Mandeville, Planning & Zoning Comm’n., 2013-0837 (La. App. 1 Cir. 2/3/14), 147 So.3d 186, 189. Accordingly, this court will conduct its own independent review of the administrative record in accordance with the standards provided in La. R.S. 49:964(G).

DISCUSSION

Failure to Process Claims

LDH claims that the central issue on appeal is whether LDH was solely responsible for Molina’s failure to process 1,190 of EXCELth’s claims. LDH argues that even though EXCELth did use the correct GNOCHC NPI and provider numbers to submit its claims in Demonstration Year One, EXCELth failed to correctly update its information with a complete new Provider Enrollment (PE-50) form and also failed “to ensure that all the encounter claims it submitted for Demonstration Year One were either approved or denied.”

The PE-50 form is a lengthy packet that is completed when a provider is enrolled in the GNOCHC program. In October 2010, when the GNOCHC |3program was to begin, approval from the CMS had not yet occurred, so EXCELth used its own NPI number, 1134440977, attached to the already existing Gentilly facility, that it had operated since 1991, to fill out the PE-50 form, as it did not yet have an NPI number associated with the GNOCHC program. Byron Tregre, the chief financial officer of EXCELth, testified that EX-CELth was required to indicate a facility that was in existence for LDH to reference the information of EXCELth. EXCELth initially completed the PE-50 form for each facility it owned. EXCELth had operated the Algiers facility in co-operation with the City of New Orleans from 1992 until May 23, 2011. The City of New Orleans had a different NPI number than did EXCELth, and the Algiers facility operated in the GNOCHC program from October 1, 2010, until May 23, 2011, under the City’s NPI number. Therefore, initially, EXCELth listed its original NPI number as 1134440977 for both the Gentilly and Algiers facilities on the PE-50 forms originally dated October 20, 2010, when the Gentilly facility began in the GNOCHC program, and May 15, 2011, when EX-CELth began operating the Algiers facility without the City.

EXCELth was later asked by Mr. Ma-gee of LDH to obtain new NPI numbers and new provider numbers for each of its facilities that would specifically be for the GNOCHC program to separate the normal Medicaid billing at each facility from the GNOCHC Medicaid billing and each facility was given a different GNOCHC NPI number. Mr. Magee emailed Mr. Andry and Mr. Tregre on July 1, 2011, stating that some providers did not have GNOCHC NPI numbers on file with Molina and requested EXCELth to update its original 1134440977 NPI number linked to its provider numbers for each facility. This same email directs Mr. Andry and Mr. Tregre to “make sure that once you obtain these NPI [numbers] that your EDI contracts are updated with this information for purposes of electronic billing.” On August 17, 2011, Mr. Tregre responded to Mr. Magee and Mr. Andry that the ImGentilly facility had been assigned GNOCHC NPI number .1174802870 and provider number 2129619- and that the Algiers facility had been assigned GNOCHC NPI number 1891074597 and provider number 2147617. Mr. Magee responded to the August 17, 2011 email that he would update his records accordingly. Mr. Andry testified that he believed Mr. Magee now had the information he requested in terms of the GNOCHC NPI numbers and that he would update his records. Mr. Andry also assumed that the Molina records would be updated.

In addition to the GNOCHC NPI numbers and provider numbers, EXCELth was also required to obtain a submitter number. In order to submit the claims electronically to Molina, as required by the GNOCHC program, EXCELth had to identify the clearinghouse selected and obtain a submitter number from Molina. The process required EXCELth to submit , an EDI contract and an EDI power of attorney, which is part of the PE-50 form, to Molina with the GNOCHC NPI number and provider number, and then Molina returned the form and assigned a handwritten submitter number. EXCELth’s vendor for electronic health records initially identified one clearinghouse which was changed to RelayHealth and was later purchased by McKesson. Mr. Tregre testified that to change the clearinghouse, it only had to submit a new EDI form, not an entire new PE-50 form. Following the change of the clearinghouse to McKesson, EXCELth subihitted the EDI power of attorney with the correct GNOCHC NPI number, provider number, and submitter number for both facilities by September 80, 2011. Therefore, EXCELth followed the instructions of Mr. Magee’s August 17, 2011 email and updated the EDI contracts for both facilities by September 30, 2011.

On October 21, 2011, Molina sent a letter to EXCELth verifying that McKesson was an authorized submitter and EX-CELth received the submitter number for McKesson, which was assigned by Molina. Therefore, by October 21, 2011, Molina had verified that it was in possession of the correct GNOCHC NPI numbers and provider numbers for both EXCELth facilities.

Mr. Magee actually testified that Molina was in possession of these EXCELth numbers by September 30, 2011. He also admitted that by October 21, 2011, Molina had processed the EDI power of attorney for both EXCELth facilities, A November 16, 2011 - Molina intraoffice email states that “[a]ll of the claims dropped because their NPI Provider Numbers are not loaded to Medicaid Provider Numbers.” This email did not indicate that EXCELth failed to provide any information* needed, and the email actually contained all of EXCELth’s correct GNOCHC NPI and provider numbers. On November 18, 2011, Mr. Magee emailed a vendor for' EX-CELth stating that Molina had identified all the dropped claims and no longer needed certain information that he had previously requested. At the administrative hearing,* he agreed that he was explaining that the dropped-claim issue had been resolved. However, although LDH’s plan was to reprocess these claims, the dropped claims did not actually get reprocessed as Mr. Magee had expected they would.

Although LDH asserts that EXCELth’s actions were insufficient to update the GNOCHC NPI numbers with Molina, Mr. Magee admitted* at the administrative' hearing that'the EDI power of attorney form was part of the PE-50 form and did update the PE-50 form. He also testified that an entire new PE-50 form would not have to be filled out in order to update that -form. Furthermore, the evidence submitted at the administrative hearing was that the EDI contract was contained within the PE-50 form at pages 8, 9, and 10.

Other than LDH claiming in argument that an entire new PE-50 form was required to be submitted to update the GNOCHC NPI numbers, there is no 112evidence in the record as to that assertion. Mr. Magee admitted, that he did not know how the PE-50 form was to be updated, as it was not part of his position and he was not involved in the update of those records. However, he believed that, to update a page of it, an entire new PE-50 form did not have to be submitted, only the.EDI forms. He had also previously instructed EXCELth to update the GNOCHC NPI numbers with the EDI forms. Additionally, Mr. Magee testified that by September 30, 2011, LDH. had the correct GNOCHC NPI and provider numbers for EXCELth and .that by November 18, 2011, Molina had informed him that EXCELth’s correct GNOCHC NPI and provider numbers had been updated. He further acknowledged that EXCELth’s claims were erroneously moved into the 999 file, even though those claims did not contain any improper or incorrect information.

Ms., Naquin also testified that the EX-CELth claims in the 999 file had the proper- GNOCHC NPI number and , provider number. It was her understanding that the claims were put in the 999 file because there was a problem with the provider number, but she.could not say if the error was due to the actions of Molina, LDH, or EXCELth. 'Furthermore, Ms. Naquin testified, as did Mr. Magee, that by November 18, 2011, the NPI numbers for EX-CELth were correct so that the claims that had been placed in the 999 file could be reprocessed. An interoffice email between Molina employees also indicated that Molina had informed LDH that the EXCELth claims in the 999 file were going to be reprocessed, Ms. Naquin recognized that Mr. Magee had communicated to an EXCELth vendor that those claims were going to be reprocessed. After discussing the reprocessing, she admitted that LDH had the responsibility to assure that the claims were processed as requested as a joint responsibility with the provider.

LDH also argues that it was the responsibility of EXCELth to notify LDH not all its claims had been processed. With regard to this assertion, Ms. 113Naquin testified that it was the duty of the provider, EXCELth, to review the reconciliation statement and tell LDH if the statement was appropriate. However, she did not believe -this requirement was' in the GNOCHC guidelines and assumed it was in the broader Medicaid package, but was not sure. Ms. Naquin also admitted that because the claims were'being submitted electronically for the first time in November 2011, there were many providers who had trouble getting their claims processed, and LDH even made CMS aware of the situation.

After the administrative hearing, ALJ Coreil made the following findings of fact:

[EXCELth] submitted its correct GNOCHC Medicaid number, NPI number, and submitter number to Molina for both the Gentilly location and the Algiers location. [EXCELth] complied with all GNOCHC standards with regard to claim processing. [EXCELth] timely submitted all information necessary for Molina'to make a "determination on its claims. Molina processed some claims; Molina failed to process other claims that contained the same GNOCHC Medicaid number, NPI number, and submlt- " ter number. All claims should have been processed by Molina. [Footnotes omitted.]

ALJ Coreil also noted that “[a]ll competent evidence supports a finding that [EX-CELth] correctly updated its NPI number with Molina and that it timely submitted all claims with all necessary and correct information to Molina for processing.” Furthermore, Molina failed to comply with the GNOCHC Provider Manual which required that claims submitted with missing or invalid information be returned unprocessed to the provider with a rejection letter listing the reason(s) the claims were being returned or denied through the system. Molina did not process the claims, did not return them as unprocessed, and did not deny them. Instead, it placed these claiiqs of EXCELth in a 999 file and no further action was taken. LDH argued at the district court and in this court that EXCELth should have notified LDH that the dropped claims were not reprocessed. We agree with the district court, which astutely pointed out, that EXCELth was told that the dropped claims would be reprocessed, but was. not notified that the reprocessing 114never. took place. LDH attempts to blame EXCELth for the failure to reprocess Molina’s claims.

EXCELth submitted at the administrative hearing proof by a preponderance of the evidence that Molina had the proper information to process the encounter claims of EXCELth by November 18, 2011, and that Molina improperly placed those claims in a 999 file and did not process them. Based on this court’s independent review of the record, we cannot say that ALJ Coreil’s decision was incorrect in reversing LDH’s recoupment of $651,120.04 from EXCELth. Accordingly, we find that the record amply supports the district court’s judgment. Therefore, based on our independent review of the record and considering the ■ applicable law and rules governing these proceedings, we do not find that ALJ Coreil’s decision, as adopted by the district court, violated constitutional or statutory provisions, were not in excess of the LDH’s Administrative Review Unit’s authority, were not made upon lawful procedure, were not affected by error of law, and were not arbitrary, capricious, or an abuse of LDH’s Administrative Review Unit’s discretion. See La. R.S. 49:964(G).

Judicial Interest

LDH claims that the trial court erred in awarding EXCELth judicial interest when it was not prayed for or provided by.law and relies on La. C.C.P. art. 1921, which' governs the grant of judicial 'interest. Louisiana Code of Civil Procedure article 1921 states that “[tjhe court shall award interest in the judgment as prayed for or as provided by law.” (Emphasis added.) LDH argues that the phrase “as provided by law” refers to legal interest in tort eases, citing La. R. S. 13:4203. However, “as provided by law” is not limited to tort cases. As this court noted in Quality Design and Const., Inc. v. City of Gonzales, 2013-0752 (La. App. 1 Cir. 3/11/14), 146 So.3d 567, 573, “[ujnder Louisiana law, debts bear interest from the. due date.” Louisiana Civil Code article 2000 specifically provides:

hfiWhen the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by [La.] R.S. 9:3500.

Thus legal interest on the sum demanded and awarded in this case is provided by law. The judgment correctly awarded legal interest as provided by law even though EXCELth had not specifically prayed therefor.

Amount EXCELth was Underpaid

LDH’s third assignment of error is that the district court erred in reversing LDH’s decision to “recoup” $651,120.04 from EXCELth and that the correct amount of underpayment was $459,063.08. To support its contention, LDH relies upon an email written by Ms. Naquin that explains to a LDH attorney that based on her evaluation of the claims Molina received from EXCELth on November 14, 2011 and November 15, 2011, only 485 claims would have been approved so that the amount due to LDH from EXCELth would have been $192,396.96 rather than $651,120.04. Therefore, LDH argues that the correct amount of the underpayment was $459,063.08.

At- the administrative hearing, Mr. Tregre testified at length explaining the amount that he believed LDH incorrectly recouped from EXCELth and supported that position with an extensive list of unprocessed claims. Mr. Andry also testified as to the amount of money incorrectly recouped by LDH.

Ms. Naquin was designated as LDH’s La. C.C.P. art. 1442 corporate representative and was deposed on March 23, 2015. At the administrative hearing, LDH did not call her as a witness and ALJ Coreil recognized an adverse presumption. The deposition of Ms. Naquin was then admitted into evidence.

The testimony of Ms. Naquin relied upon by LDH is the following:

Q. Understood. To the best information that you have available, you believe that the recoupment here was $458,793.08 more than it should have been, correct?
A. Yes.

However, this court notes that prior to the above testimony, Ms. Naquin testified:

Q. So in your opinion the total recoupment from EXCELth should have properly been $192,326.96? If I’m reading this correctly.
A. Upon confirmation that the claims that were to be recycled had not been recycled, yes.
Q. And have you confirmed that?
A. I have not.

Ms. Naquin was not sure if Molina had ever confirmed that the denials happened on November 14, 2011, or how the Molina computer system operated.

Louisiana Revised Statutes 49:964(0(6) provides that where the agency has the opportunity to judge the credibility of the witness by first-hand observation of demeanor on the witness stand, due regard shall be given to the agency’s determination of credibility issues. Thus, we will give deference to ALJ Coreil’s determination that Ms. Naquin was a reliable witness. Given the evidence in the record, we cannot say that the decision to reject the equivocal testimony of Ms. Naquin over the other testimony and evidence in the record as to the amount EXCELth is owed from LDH is manifest error.

CONCLUSION

For the above and foregoing reasons, the October 6, 2017 judgment of the district court is affirmed. All costs of this appeal are assessed against the State of Louisiana, through the Department of Health and Hospitals in the amount of $30,391.50.

AFFIRMED.

      . Although the record refers to the Department of Health and Hospitals (DHH), the official name of this agency is now the Louisiana Department of Health ‘ (LDH). See La. R.S. 36:251. Therefore, we shall refer to Appellant as LDH in this report.

      . A demonstration waiver program caps the amount of money that can be spent each year and requires a state match, unlike Medicaid which is an entitlement program.

      . The clearinghouse is also referred to as a “submitter” in the record and is a third party that submitted the claims to Molina Medicaid Solutions.

      . LDH assigned a fourth error, which is now moot in light of the amended judgment.

      . The witnesses at the administrative hearing used the terms "recycle” and "reprocess” interchangeably to refer to the dropped claims of EXCELth submitted prior to the November 14, 2011 deadline,