author: WICKER, J.

text:
    Raymond FALCON v. Jeffrey SURCOUF & State Farm Fire and Casualty Company
    NO. 17-CA-212
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, RAYMOND FALCON, John A. Venezia, Julie O'Shesky, Salvador M. Brocato, III
    COUNSEL FOR DEFENDANT/APPELLEE, DR. JEFFREY SURCOUF & STATE FARM FIRE AND CASUALTY COMPANY, Thomas G. Buck
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
   WICKER, J.

Plaintiff, Raymond Falcon, appeals the granting of summary judgment in favor of defendants, Dr. Jeffrey Surcouf and State Farm Fire & Casualty Insurance Company. For the following reasons, we find that genuine issues of material fact exist and that summary judgment is not appropriate in this case. Accordingly, we reverse the trial court judgment and remand this matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This is a suit for personal injuries sustained by plaintiff-plumber, Raymond Falcon, while performing plumbing work during the construction of a new home owned by defendant Dr. Jeffrey Surcouf and insured by State Farm. On September 22, 2014, plaintiff filed suit in the 24th Judicial District Court for the Parish of Jefferson against Dr. Surcouf and State Farm alleging that, on December 4, 2013, while performing plumbing work at the home, he fell from the landing of a staircase leading to the second floor which lacked a temporary stair railing, resulting in serious personal injuries.

In his petition, plaintiff alleged that Dr. Surcouf acted as his own general contractor on the construction project and failed to exercise reasonable care in keeping the premises free from unreasonably dangerous conditions and defects. Plaintiff alleged that Dr. Surcouf, as owner of the home and the individual acting as the general contractor during the home's construction, is liable to plaintiff for his injuries. On June 25, 2015, plaintiff filed a supplemental and amending petition to name as additional defendants, Juan Valladares, Sr., the framing subcontractor, and Rick Golemi, who plaintiff identified as the "on-site manager" for the construction project. In his supplemental petition, plaintiff alleged that Valladares was responsible for the construction of the staircase and should have constructed a temporary railing for the safety of other workers. Plaintiff further alleged that Golemi, in the exercise of reasonable care, should have noticed that the stairs lacked a temporary handrail during the construction and remedied the unsafe condition. Plaintiff contended that all defendants violated Occupational Safety and Health Administration (OSHA) regulations, which requires an "alternative fall protection" plan for residential construction projects.

After the parties conducted sufficient discovery, defendants Dr. Surcouf and State Farm moved for summary judgment. Defendants argued that (1) the lack of a handrail on the stairs at issue was an open and obvious condition for which defendants are not responsible; (2) there is no evidence to show that Dr. Surcouf knew or should have known about the need for a handrail; (3) OSHA regulations concerning handrails only apply between employers and employees and, thus, do not apply in this case; (4) Dr. Surcouf, as the homeowner, is not responsible for any negligence or actions of subcontractor Valladares; (5) Dr. Surcouf, as homeowner, is not responsible under respondeat superior for Golemi's actions because Golemi was not his employee; and (6) a homeowner constructing his own private residence is not held to the same regulatory standards as a licensed general contractor and Dr. Surcouf owed no duty to plaintiff under the facts of this case.

In support of their motion for summary judgment, defendants attached Dr. Surcouf's deposition testimony. Dr. Surcouf testified that he purchased a lot of land in Metairie to construct a home and that he obtained a policy of builder's risk insurance with defendant, State Farm. He did not retain a general contractor for the construction. Dr. Surcouf testified that he is a neonatologist and has never acted as a general contractor prior to this project. He testified that he visited the house very often, nearly every day, to check on the progress of construction. He further testified that his cousin, Rick Golemi, acted as a site supervisor, and his mother, Sue Surcouf, handled administrative work in connection with the project.

Dr. Surcouf contracted individually with multiple companies to act as subcontractors for various work to be completed on the home. He testified that he previously used Continental Plumbing, plaintiff's company, years prior when he built a home in Kenner and, further, that plaintiff performed plumbing work for Dr. Surcouf's family construction business for years. When Dr. Surcouf built his home in Kenner, he used the family business, Golemi Homes, as the general contractor, to build the home.

Dr. Surcouf testified that he also contracted with Valladares, the framing contractor, to frame the entire exterior and interior of the home. Dr. Surcouf did not have a formal contract with Valladares. Rather, Valladares submitted a proposal/bid for the work, which was addressed to Golemi's attention. If Dr. Surcouf had any issue with the framing, he would contact Valladares directly. He does not recall a temporary railing present prior to the accident at issue but testified a temporary railing was installed within approximately one week after the accident. Dr. Surcouf testified that he was unaware of any requirement to have a temporary stair railing during construction and would have relied on Valladares to construct any staircase required by local rules. He testified that he is aware generally that a stair railing must be installed prior to a final Parish inspection to occupy the home.

In his deposition, Dr. Surcouf recalled an issue where plaintiff wanted to begin the interior plumbing work before Valladares finished the interior framing. Dr. Surcouf testified to his belief that plaintiff discussed the issue with either Golemi or his mother Sue Surcouf and that plaintiff was allowed to enter the residence sooner than anticipated in light of plaintiff's upcoming scheduled knee surgery.

In further support of their motion for summary judgment, defendants attached the deposition of Golemi, who testified that he has a general contractor's license under his company name Rick Golemi Construction, LLC. Golemi testified that at some point Dr. Surcouf asked him if he would be the general contractor on the home construction project. Golemi told Dr. Surcouf that, as general contractor, he charges a 20% fee, which would have been significant given the size of Dr. Surcouf's home. He explained to Dr. Surcouf that, if he served as the general contractor for the project, he would be responsible to warranty certain component parts of the house, such as the foundation, for five to ten years by law. Golemi testified that he felt obligated, essentially, to help Dr. Surcouf build the home and stated, "you're my cousin. Your dad and your grandpa and your uncle taught me how to do this." He testified that he and Dr. Surcouf agreed on a rate of $35.00 per hour for his time to supervise the construction. Golemi testified that he attempted to stop at the house every day, but was most certainly at the site four days per week. Typically, he worked between six and fifteen hours per week on the job, and would verbally relay his hours to Sue Surcouf or Dr. Surcouf to get paid.

Golemi described Sue Surcouf as a "superintendent" of the project, who had more decision making authority than he did. He testified that Sue Surcouf visited the construction project approximately three to four times per week to observe the progress. Golemi testified that all subcontractors, including plaintiff, had their own construction keys to the house because the family's construction business, Golemi Homes, had known most of the subcontractors for years and the same construction key lock was used on many construction projects.

Golemi testified to the order in which home construction typically progresses. He stated that in all jobs on which he is the general contractor, the framing contractor finishes first, then places the temporary stair railing to the second floor, and thereafter the other subcontractors begin work. Although Golemi testified that Sue Surcouf was responsible for the scheduling of subcontractors, he also indicated that he was involved in the scheduling, stating "I had Ray [plaintiff] scheduled" after Valladares. Golemi explained that plaintiff began work eight days sooner than scheduled and that "we were not ready for him." Golemi recalled a phone call from Valladares asking why plaintiff was at the house prior to the framing completion. Golemi stated that he told Sue Surcouf that she could tell plaintiff to enter the home to begin "roughing in" the kitchen downstairs because the framing was complete in that area.

Concerning his relationship with Dr. Surcouf, Golemi testified that Dr. Surcouf did not provide him any tools for his job; he did not control what hours Golemi worked or went to the house; he did not hire any of the subs; he did not pay the sub; or material suppliers; and the checks he received from Dr. Surcouf were personal checks paid to him directly out of a personal checking account tied to the construction account.

Plaintiff filed an opposition to defendants' motion for summary judgment, arguing that genuine issues of material fact exist as to whether Golemi was Dr. Surcouf's employee and whether Dr. Surcouf would be responsible under a theory of respondeat superior for Golemi's negligence in failing to notice and remedy the lack of a temporary stair railing when, from his experience as a general contractor, he knew that a temporary stair railing should be present prior to other subcontractors beginning work. Plaintiff further argued that the question of whether the condition of the staircase at issue is an open and obvious risk of harm is fact-intensive and not proper on summary judgment.

In support of his opposition to defendants' motion for summary judgment, plaintiff attached Valladares' deposition testimony, wherein he stated that he understood that Golemi was the general contractor on the job at issue because he primarily dealt with Golemi on the project. Valladares testified that at the time of plaintiff's fall, he had completed approximately 95% of the interior framing work in the home and, further, that he had in fact installed a temporary safety railing at some point prior to the accident at issue. He testified that he typically installs the temporary rail before any other subcontractors begin work. He testified that, to his knowledge, there was never a time where the temporary handrail was not present during the construction.

Plaintiff also attached the deposition of Sue Surcouf, who testified that she is Dr. Surcouf's mother and that she handled mostly secretarial work during the home's construction, such as answering phone calls and ordering materials. She testified that a handrail was never placed on the stairs between the first and second floor prior to plaintiff's fall. She testified that, approximately one week before the accident, she asked Valladares to construct a temporary balcony railing on the second floor, which overlooked the first floor, because her grandchildren planned to come visit to see the progress of the home and she felt it was unsafe to not have a balcony railing on the second floor. She testified that she went up and down the stairs on many occasions without a handrail from the first to second floors, as did Dr. Surcouf, his wife, and their children "in hand," and did not request a handrail for those stairs.

In further opposition to defendants' motion for summary judgment, plaintiff attached the affidavit of Mr. Edward Fogarty, an expert in the field of estimation and project management. Mr. Fogarty attested that the general contractor is responsible for maintaining a safe working environment for his employees as well as the subcontractors involved in the construction. He attested that the person acting as the general contractor is generally responsible for scheduling the sequence of subcontractors performing work, and that scheduling is one of the most important jobs on a jobsite because the incomplete task of one subcontractor can create a risk for other tradesmen beginning work. He further stated that OSHA requires a guardrail or safety net for work taking place above six feet in height, and therefore, a stair handrail would have been required during the construction of Dr. Surcouf's home. Mr. Fogarty further attested that, in this case, the general contractor should not have allowed other subcontractors inside the home until the framing was complete, finding that no reasonable contractor would have allowed electrical, HVAC, and plumbing subs to begin work that required them to travel on a rail-less staircase. He further attested that allowing the subcontractors to come and go as they pleased into the home and self-supervise (as testified to in this case) is an "unsafe practice." Mr. Fogarty found that had Dr. Surcouf, Golemi, and Sue Surcouf acted reasonably, plaintiff would not have been allowed to begin work and would have never fallen.

On December 6, 2016, following a hearing, the trial judge granted summary judgment in favor of Dr. Surcouf and State Farm, dismissing all of plaintiff's claims against them with prejudice. On December 15, 2016, the trial judge issued written reasons for judgment. In his reasons for judgment, the trial judge found that, under the facts of this case, Dr. Surcouf did not exercise control over any of the subcontractors and, thus, was not liable for any subcontractor's negligence. Further, the trial judge found first that "Dr. Surcouf did not give express or implied authorization to an unsafe practice," and, second, that "there is no dispute that the absence of the handrail was an open and obvious condition and that plaintiff was aware of it." This timely appeal follows.

LAW AND ANALYSIS

On appeal, plaintiff assigns as error the trial court's granting of summary judgment, contending first that genuine issues of material fact exist as to whether the absence of a handrail under the facts of this case is an open and obvious hazard or risk of harm. Plaintiff also contends that the trial court erred in making a factual determination as to whether Dr. Surcouf, by providing to subcontractors construction keys to come and go freely and by failing to properly schedule the sequence of subcontractors' work, authorized an unsafe practice for which he may be liable.

The legal basis for liability of a homeowner for injuries sustained by an alleged defect in the home is premised on the following Civil Code articles:

La. C.C. art. 2317 :

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

La. C.C. art. 2317.1 :

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

La. C.C. art. 2322 provides:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Under La. C.C. art. 2322, a plaintiff must prove the following elements to hold the owner of the building liable for injuries caused by the building's vice, ruin or defect: "(1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation." Broussard v. State, through Office of State Bldgs., Div. of Admin. , 12-1238 (La. 4/5/13), 113 So.3d 175, 182-83 ; Tramuta v. Lakeside Plaza, L.L.C. , 14-410 (La. App. 5 Cir. 2/25/15), 168 So.3d 775, 779 ; Breaux v. Fresh Start Props. L.L.C. , 11-262 (La. App. 5 Cir. 11/29/11), 78 So.3d 849, 852. Our jurisprudence requires that the ruinous building or its defective component part create an unreasonable risk of harm. Broussard , 113 So.3d at 175 (citing Entrevia v. Hood , 427 So.2d 1146, 1148-49 (La. 1983) ; Olsen v. Shell Oil Co. , 365 So.2d 1285, 1292 (La. 1978) ).

To assist the finder of fact to determine whether a building's vice or defect creates an unreasonable risk of harm, the Supreme Court has adopted a risk-utility balancing test that weighs four factors: "(1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature." Hutchinson v. Knights of Columbus, Council No. 5747 , 03-1533 (La. 2/20/04), 866 So.2d 228, 235.

Concerning the second factor of the risk-utility balancing test-the likelihood and magnitude of harm, including the obviousness and apparentness of the condition-the Louisiana Supreme Court has held that a homeowner may owe no duty to protect against an open and obvious hazard. Hutchinson, supra at 234,. "If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Id. In his reasons for judgment, the trial judge found Dr. Surcouf owed no duty to plaintiff because the absence of the handrail was an "open and obvious" condition. This Court has recently considered the jurisprudential "open and obvious" doctrine and stated:

The latest pronouncements from our Supreme Court regarding the "open and obvious to all" doctrine are found in the case of Broussard, supra . In Broussard , a UPS delivery man was injured while trying to maneuver his loaded dolly into a malfunctioning elevator that had stopped one and one-half to three inches above the lobby floor. After trial, the jury found that the malfunctioning elevator presented an unreasonable risk of harm and apportioned 62% fault to the State, which owned the elevator, and 38% fault to Broussard. The Court of Appeal reversed, holding the jury's determination that the offset created an unreasonable risk of harm was manifestly erroneous. Broussard v. State , 11-0479 (La. App. 1 Cir. 3/30/12), 2012 La. App. Unpub. LEXIS 183[ 2012 WL 1079182]. As part of its application of the "risk-utility balancing test," the Court of Appeal found that the defect was open and obvious and thus did not present a serious risk of harm. Id. The Supreme Court accepted writs and framed its inquiry as follows:
In this personal injury case, we must determine whether a one and one-half to three inch misalignment between the floors of an elevator and a building's lobby created an unreasonable risk of harm as found by the jury, or whether the elevator's defective condition presented an open and obvious hazard as determined by the Court of Appeal.
Broussard , 113 So.3d at 178.
After reviewing the applicable law and the record in its entirety, the Supreme Court found that the jury's unreasonable risk of harm determination was not manifestly erroneous, and therefore reversed the Court of Appeal's decision and reinstated the District Court's judgment rendered in conformity with the jury's verdict. Id. at 193-194.
In discussing the analytical framework for evaluating an unreasonable risk of harm, the Court stated, "...the determination of whether a defect is unreasonably dangerous necessarily involves a myriad of factual considerations, varying from case to case ..." Id. at 185. The inquiry "encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than scientific standard ..." Id. at 186. In order to aid the trier-of-fact in making this "unscientific, factual determination, [the] Court has adopted a risk-utility balancing test, wherein the fact-finder must balance the gravity and risk of harm against individual societal rights and obligations, the social utility of the thing, and the cost and feasibility of repair." Id. at 184.
In specifically referring to the "open and obvious to all" doctrine, the Court noted that its opinion does not contain a bright-line rule because the issue has to be examined on a case-by-case, fact-driven inquiry; however its treatment of the inquiry does offer some guidance to the lower courts in addressing what the Court characterized as "this difficult area." Id. at 181. The Court further noted Judge Whipple's concurrence to the Court of Appeal opinion, expressing her concern that denying a victim's recovery based on whether a defective condition should be obvious to the victim runs "perilously close to resurrecting the doctrine of assumption of the risk." Id. We share Judge Whipple's concerns in this regard, especially when called upon to make this fact-intensive determination in the procedural context of a motion for summary judgment.
Tramuta v. Lakeside Plaza, L.L.C. , 14-410 (La. App. 5 Cir. 02/25/15), 168 So.3d 775, 781-82.

The Louisiana Supreme Court in Broussard , held that "the question of whether a defect presents an unreasonable risk of harm [is] 'a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of facts." Broussard, supra at 183,. The Court went on to state that "whether a defect presents an unreasonable risk of harm is a 'matter wed to the facts' and must be determined in light of facts and circumstances of each particular case." Id. The Supreme Court has since clarified its holding in Broussard to explain that it should not be interpreted to limit or prohibit summary judgment in a case where no genuine issue of material fact exists or where the plaintiff fails to put forth any evidence to counter the motion for summary judgment pursuant to the burden-shifting mechanism provided in La. C.C.P. art. 966. See Allen v. Lockwood , 14-1724 (La. 2/13/15), 156 So.3d 650, 652-53. However, where genuine issues of material fact exist concerning whether a defect is unreasonably dangerous, summary judgment is not appropriate. Broussard, supra .

In this case, plaintiff opposed defendants' motion for summary judgment with ample evidence to show a genuine issue of material fact concerning whether the condition at issue was open and obvious as an unreasonable risk to all. The documentation submitted in connection with the motion for summary judgment reflects that Dr. Surcouf's wife and children frequently visited the home and traversed the stairs without incident. The deposition testimony further reflects that, although Sue Surcouf found it necessary to request a temporary stair railing on the second floor, she never requested a handrail on the stairs between the first and second floors-thereby inferring that she did not find that stairwell to be unreasonably dangerous for her grandchildren.

In support of their motion, defendants argued that plaintiff is solely responsible for his damages because he knew that the stairway at issue lacked a temporary handrail. However, the Louisiana Supreme Court has recently found that under certain circumstances, "to the extent plaintiff was aware of the condition..., the trier of fact may consider such evidence at trial for purposes of determining the percentage of fault, if any, to be assigned to plaintiff." Rodrigue v. Baton Rouge River Ctr , 16-2075 (La. 1/25/17), 209 So.3d 93. Thus, a plaintiff's knowledge of the condition is not a complete bar to recovery and may be a fact taken into consideration by the trier-of-fact at trial.

On appeal, plaintiff further assigns as error the trial court's failure to find that Dr. Surcouf, as the named general contractor, undertook an obligation or duty to keep the premises in a reasonably safe condition and that he breached that duty by authorizing the unsafe practice of allowing subcontractors to come and go without supervision or proper scheduling.

The owner of a building is not generally liable for the actions of an independent contractor performing work on the building. "[T]he owner of a building under construction or renovation generally does not have custody for purposes of liability." Sasser v. Wintz , 11-2022 (La. App. 1 Cir. 09/04/12), 102 So.3d 842, 846 (citing Young v. City of Plaquemine , 02-0280 (La. App. 1 Cir. 5/10/02), 818 So.2d 898, 899, writ denied , 02-1601 (La. 9/30/02), 825 So.2d 1196.) However, a jurisprudentially created exception to that general rule exists "when the owner exercises operational control over the contractor's methods of operation or gives express or implied authorization to unsafe practices." Id. This Court has further held that:

As a general rule neither the owner nor the general contractor are liable for the negligence of an independent contractor who performed work for them unless, as urged by the plaintiffs here: (1) the work undertaken by the independent contractor is inherently or intrinsically dangerous, or (2) the person for whom the work is performed gives express or implied authorization to an unsafe practice or has the right to or exercises operational control over the method and means of performing the work.

Meaux v. Wendy's Int'l, Inc. , 10-111 (La. App. 5 Cir. 10/26/10), 51 So.3d 778, 785-86 (citing Villaronga v. Gelpi Partnership Number 3 , 536 So.2d 1307, 1310-11 (La. App. 5th Cir. 1988) ).

In opposition to defendants' motion for summary judgment, plaintiff put forth substantial evidence showing conflicting testimony as to who in fact acted as the general contractor for this project. Further, the documentation submitted in connection with the motion for summary judgment creates a genuine issue of material fact as to who was responsible for building and installing a temporary handrail, or scheduling the sequence of subcontractors involved in the construction. Moreover, plaintiff attached the affidavit of expert witness Mr. Fogarty, who attested that Dr. Surcouf, in allowing subcontractors to come and go throughout the property without proper scheduling or supervision, engaged in an "unsafe practice." Therefore, plaintiff has put forth sufficient evidence to create a genuine issue of material fact as to whether Dr. Surcouf authorized an unsafe practice throughout the construction process. The trial court erred in making a factual finding on summary judgment as to this issue.

CONCLUSION

Based upon the documentation submitted in connection with defendants' motion for summary judgment, we find that genuine issues of material fact remain and that summary judgment is inappropriate in this case. Accordingly, we reverse the trial court's judgment and remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED

      Defendants, Dr. Surcouf and State Farm, filed an Answer to plaintiff's petition, and also filed a third-party demand against the framing subcontractor, Valladares.

      Defendants Surcouf and State Farm initially filed a motion for summary judgment on July 24, 2015, which was eventually continued to allow for adequate discovery. Thereafter, the trial judge recused himself and the case was allotted to a new trial judge. On August 18, 2016, defendants re-urged their motion for summary judgment, which was reset. On August 18, 2016, Defendants' filed a supplemental memorandum in support of motion for summary judgment and rule resetting its motion for summary judgment, basically reurging/resetting their motion, contending that, since the reassignment of the case to a new division, the parties had conducted additional discovery.

      Dr. Surcouf testified that his uncle, Tony Golemi, owned Golemi Homes at the time he built his Kenner home. He testified that his uncle died prior to the construction of the Metairie home at issue, and that Golemi Homes was never the general contractor for this project. From the documentation submitted in connection with the motion for summary judgment, it appears that the family business, Golemi Homes, is a separate and distinct entity from Rick Golemi Homes, L.L.C.

      Dr. Surcouf testified that Golemi may have been the first person to contact Valladares to get a bid on the job because Golemi had used Valladares on past projects.

      Dr. Surcouf recalled that, after the accident, he had a conversation with Sue Surcouf and Golemi and potentially other subcontractors involved at the time. He testified that the consensus from that conversation was, whether the temporary railing was required or not, to just "get it up." He testified that Golemi went to home depot and got the lumber to put up the railing and that Golemi installed the railing after plaintiff's fall.

      Plaintiff also testified that he asked Golemi directly if he and his workers could enter the home to begin plumbing work at the house and was advised that he could start.

      When questioned why Valladares' proposal was written to his attention rather than Dr. Surcouf's, Golemi testified that Valladares knew him as a general contractor and Valladares was probably initially confused or mistaken when he provided the proposal to him.

      The deposition testimony introduced in connection with the motion for summary judgment reflects that the HVAC workers and others had been present in the home prior to the accident at issue.

      Plaintiff also attached Dr. Surcouf's deposition testimony reflecting that he applied for and obtained a Jefferson Parish permit for construction of his home and listed himself as the general contractor on the construction project.

      Broussard v. State , 12-1238 (La. 4/5/13), 113 So.3d 175.

      In his written reasons, the trial judge found this case analogous to Loftus v. Kuyper , 46,961 (La. App. 2 Cir. 3/14/12), 87 So.3d 963, wherein the trial court found that a homeowner was not responsible for a subcontractor's negligence to a third-party resulting from a defect in a loose plywood stair, and granted summary judgment in favor of the homeowner. Loftus , however, addressed a homeowner's liability for a subcontractor's negligence that could not have been discovered by the homeowner. In this case, the negligence alleged is that of the homeowner himself, Dr. Surcouf, for authorizing an unsafe practice by failing to remedy a condition of which he was aware, in addition to the alleged liability for those he contracted with or, possibly, employed. Although there are many factual issues to be determined, including Golemi and Dr. Surcouf's employment relationship, if any, the negligence alleged is also that of Dr. Surcouf directly and, therefore, Loftus is not controlling under the facts of this case.

      The documentation reflects that Golemi installed the railing after plaintiff's fall.


source: Caselaw Access Project

author: JOHNSON, J.

license: Public Domain

text:
    Mark KNOBLES v. Kay G. KNOBLES
    NO. 17-CA-233
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, MARK KNOBLES, R. Lee Eddy, III, Metairie, LA
    COUNSEL FOR DEFENDANT/APPELLEE, KAY CHAUVIN, William H. Cook, Jr., New Orleans, LA
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Hans J. Liljeberg
   JOHNSON, J.

Plaintiff/Appellant, Mark Knobles, appeals a judgment from the 24 th Judicial District Court, Division "A," in favor of Defendant/Appellee, Kay G. Knobles, that classified a portion of his restoration retirement plan as a community asset. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The relevant facts of this appeal are as follows.

The parties, Mark Knobles and Kay G. Knobles, were married on November 25, 1977. On December 12, 1979, Mark began his employment with the Chevron Corporation (hereinafter referred to as "Chevron") and became eligible to participate in the Chevron Retirement Plan (hereinafter referred to as "CRP") on October 29, 1980. Mark filed a petition for separation from room and board on June 15, 1988, and a petition for divorce was subsequently filed on January 13, 1989. A judgment of divorce dissolving the marriage between Mark and Kay was rendered on March 4, 1992.

On August 29, 1996, Mark filed a petition for judicial partition of the community property. While the judicial partition was pending, Mark voluntarily terminated his employment with Chevron on May 14, 1998; however, his CRP remained intact. The parties agreed to a settlement of the community property. The parties decided that the CRP would be divided pursuant to the formula set forth in Sims v. Sims , 358 So.2d 919, 922 (La. 1978), rehearing granted on other grounds , (La. 1978). A Consent Judgment confirming the settlement was rendered on April 26, 1999. The Consent Judgment specifically stated,

IT IS FURTHER ORDERED ADJUDGE AND DECREED, that in the event that any undisclosed assets are discovered by either party, that said asset will be divided in accordance with the Louisiana Community Property laws. Undiscovered asset means anything that is not covered or is not within the description of those things which have already been described and listed in this Consent Judgment. If any other asset is discovered, that is not included within the definition or descriptions of those which have already been recited heretofore today, that asset would be referred to as an undiscovered asset.

The judgment was later considered by Chevron to be a Qualified Domestic Relations Order (hereinafter referred to as "QDRO").

Mark was rehired by Chevron on January 22, 2007. On that date, Mark was placed in the CRP again and began to accrue additional time of credited service. In a petition to modify the QDRO filed on February 2, 2009, Mark argued that the QDRO needed to be amended, partially due to his reemployment with Chevron. In April of 2009, Mark's compensation exceeded the applicable annual compensation limit for his CRP benefits, and he became eligible to participate in Chevron's Retirement Restoration Plan (hereinafter referred to as "Restoration Plan")-an unqualified benefit plan that was separate from the CRP.

In response to Mark's petition, Kay filed a reconventional demand on March 23, 2009 and asserted an entitlement to a newly discovered supplemental benefit (the Restoration Plan) to Mark's CRP as a community property asset. After numerous motions and exceptions, the merits of the classification of Mark's Restoration Plan was tried by the court on August 6, 2015.

In a judgment rendered on October 13, 2015, the trial court found that the increase in benefits under the Restoration Plan was a community asset due to its use of Mark's years of service during his marriage to Kay to calculate the benefits. The trial court also found that the increase in Mark's benefits under the Restoration Plan fit into the 1999 Consent Judgment's definition of an undiscovered asset and res judicata did not apply to its findings. The trial court further found that Mark failed to allege any special post-community achievement or training that entitled him to the increase of his benefits due to the inclusion of his years of service during the marriage in Chevron's calculations, and no reduction of the community asset was warranted.

Mark filed a motion for new trial from the October 15th judgment, which was denied through a written judgment on January 5, 2016. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Mark alleges the trial court erred by finding his Chevron Corporation Retirement Restoration Plan was an "undiscovered asset" contemplated in the April 26, 1999 Consent Judgment of Partition and that Kay was entitled to a community property interest in it. In his second assignment of error, Mark alleges the Restoration Plan could not be a community asset because it did not exist until July 1, 2002, and he had no entitlement to any interest in the plan until April of 2009. He further alleges in his second assignment of error that, pursuant to the Consent Judgment, Kay is precluded from asserting any other community property claims.

LAW AND ANALYSIS

Restoration Retirement Plan

Mark alleges the trial court erred in determining that the Restoration Plan was an undiscovered asset contemplated by the Consent Judgment. Mark argues that the trial court's classification of the Restoration Plan was erroneous because the court failed to consider when his interest in the plan was acquired. He contends that his interest in the Restoration Plan was acquired in April of 2009, long after the termination of his community regime with Kay, and was not simply a renewal of or an extension of any previous benefit plan. He further contends that his efforts, skills, and industry during the community had absolutely nothing to do with his acquisition of his financial interest in the Restoration Plan over 20 years after the community regime ended; basically, every dollar credited to him in the Restoration Plan is attributable to his earnings after April 2009. Mark then avers that the right to participate in the Restoration Plan was created solely by virtue of him, as a Chevron employee, exceeding the ERISA income threshold under 26 USCS § 401(a)(17) of the Internal Revenue Code (as an employee who never reaches the income threshold would never be enrolled in the Restoration Plan), and neither his years of employment nor credited service in the basic retirement plan have any significance in his participation in the Restoration Plan.

Kay maintains that the trial court's determination was proper because Mark's Restoration Plan is an allowable excess benefit plan that is a supplement to the CRP. She further maintains that the Restoration Plan used Mark's total number of years of credited service, which included the time during their marriage, to calculate his benefit accrual service time and supplemental benefits. She contends that the benefits paid to Mark pursuant to the terms of the Restoration Plan contain community property and are undiscovered assets subject to division under the community property laws.

Community property is made up of property acquired during the existence of the legal regime through the effort, skill and industry of either spouse, property acquired with community things or with community and separate things, unless classified as separate property under La. C.C. art. 2341. Drennan v. Drennan , 12-503 (La. App. 5 Cir. 7/3/13); 121 So.3d 177, 182, writ denied , 13-2200 (La. 11/22/13); 126 So.3d 493, citing Moise v. Moise , 06-876 (La. App. 5 Cir. 3/13/07); 956 So.2d 9, 11. The classification of property as separate or community is fixed at the time of its acquisition. Id. The trial court's findings regarding the nature of the property as community or separate are factual determinations subject to the manifest error standard of review. Id. , citing Ross v. Ross , 02-2984 (La. 10/21/03); 857 So.2d 384, 395.

Because former spouses continue to own former community property together as co-owners until partition, inadequate partition or no partition at all permits the parties to continue as co-owners as to any undivided property. LeBlanc v. LeBlanc , 05-212 (La. App. 3 Cir. 11/02/05); 915 So.2d 966, 969. Principles of co-ownership apply, and former spouses who are co-owners of unpartitioned property may move to partition at any time because there is no time limit as to when a co-owner may move to partition an interest in property. Id. at 969-70. Relying upon the principles of co-ownership explained in Robinson v. Robinson , 99-3097 (La. 1/17/01); 778 So.2d 1105, 1114-15, the Louisiana Third Circuit further stated,

As a general principle, a court partitioning a community asset is required to classify the property as of the date of the termination of the community. In the case of a pension right earned partly during and partly outside of the community, the process of classification begins at the termination of the community and continues until a partition of that asset is effected....The community and separate fractions of the pension cannot be separated and classified definitively until the partition.

Id. at 970.

Louisiana law has clearly held that the portion of retirement benefits from one spouse's employment accrued during the marriage constitutes a community asset. Id.

Consequently, when the community is terminated, the employee's spouse is entitled to be recognized as the owner of the one-half of the value attributable to the pension or deferred compensation right earned during the existence of the community. When the community is terminated, each spouse becomes a fully vested co-owner in indivision of all property of the former community regime, including pension benefits acquired during the community.

Id. , citing Day v. Day , 02-431 (La. App. 1 Cir. 5/28/03); 858 So.2d 483, 491. (Internal citations omitted).

The Louisiana Supreme Court in Sims , supra , expounded:

"When acquired during the existence of a marriage, the right-to-share (in a retirement plan) is a community asset which, at the dissolution of the community, must be so classified even though at the time acquired or at the time of dissolution of a community, the right has no marketable or redeemable cash value, and even though the contractual right to receive money or other benefits is due in the future and is contingent upon the happening of an event at an uncertain time."
A spouse's right to receive an annuity, lump-sum benefit, or other benefits payable by a retirement plan is, to the extent attributable to his employment during the community, therefore an asset of the community....
[O]ur courts have uniformly held that, at the dissolution of the community, the non-employed spouse is entitled to judgment recognizing that spouse's interest in proceeds from a retirement annuity, or profit-sharing plan or contract, if and when they become payable, with the spouse's interest to be recognized as one-half of any payments to be made, insofar as they are attributable to the other spouse's contributions or employment during the existence of the community.

Id. at 922. (Internal citations omitted).

The supreme court further held that when the benefit payments become due, so as to have a determinate value, the non-employed spouse is entitled to receive the proportion of them attributable to the other spouse's employment during the existence of the community. Id. at 924.

In the instant matter, the trial court found that the Restoration Plan was a community asset anticipated by the Consent Judgment under the definition of "undiscovered asset" and should be divided according to Louisiana community property laws because Chevron calculated Mark's Restoration Plan benefits using all of his years spent working at Chevron, which included the time when he was married to Kay. The trial court also found that, to the extent Mark's benefits under the Restoration Plan increased due to his years of service while married to Kay, the increase in benefits is a community asset. We agree.

In lieu of providing live testimony, the trial court allowed Chevron to submit responses to interrogatories concerning Mark's retirement benefits. According to the responses provided by Chevron, Mark's employment with the company began on December 12, 1979, and he was allowed to become a participant in the CRP on October 29, 1980. Mark's benefit accrual service date began on July 8, 1989, and his vesting and eligibility service date was August 20, 1988. Those dates were used to account for his approximate 18.4 years of service for vesting and eligibility purposes before Mark's employment was terminated on May 14, 1998. The benefit under the Restoration Plan is a supplement to the CRP benefit and is partially based on the total number of years of credited service. Chevron stated that the Restoration Plan is a non-qualified plan that became effective on July 1, 2002 and "was formed from a spin-out on July 1, 2002 of the defined benefit portion of the liabilities of the Chevron Corporation Excess Benefit Plan[,] which had been originally established effective January 1, 1976." Mark was not allowed to participate in the Restoration Plan in May of 1998 because his compensation did not exceed the applicable annual compensation limit under 26 USCS § 401(a)(17) ; however, he was allowed to participate in the Restoration Plan in April of 2009 because his compensation then exceeded the applicable annual compensation limit.

A plain reading of Chevron's responses supports the trial court's determination that a portion of the Restoration Plan is a community asset. Although Mark did not qualify for the Restoration Plan until his compensation from Chevron exceeded the applicable annual compensation limit, well after the community ceased to exist, the benefits Mark will receive under the Restoration Plan are calculated based in part on his credited service years accumulated during the existence of the community with Kay. Mark's years of employment during the marriage factored into his right to receive the increased accrued benefits of the Restoration Plan once it became effective and Mark met the requirements; thus, the community has an interest in the whole of the accrued benefit. See generally , DeMontluzin v. Martinez , 94-1805 (La. App. 4 Cir. 2/23/95); 652 So.2d 71, 76-77, rehearing denied , (La. App. 4 Cir. 4/19/95). Because Mark's years during the marriage were used to determine his eligibility for participation in the Restoration Plan, we find that Kay is entitled to a right-to-share in one-half of the portion of the plan that is a community asset, despite the fact that a determinative value came into existence many years after the dissolution of the marriage. See , Sims , supra . Although the Consent Judgment between the parties anticipated the community property portion of the Restoration Plan as an undiscovered asset, Kay would have ultimately been entitled to that community asset through applicable jurisprudence and community property laws.

Therefore, we do not find the trial court was manifestly erroneous in finding Mark's increase in benefits for the Restoration Plan to be a community asset that should be divided according to Louisiana community property laws. Furthermore, we do not find the trial court was manifestly erroneous in finding that the increase in Mark's benefits under the Restoration Plan fits the definition of an undiscovered asset in the Consent Judgment.

DECREE

Accordingly, the October 13, 2015 judgment of the trial court is affirmed. Mark Knobles is assessed the costs of this appeal.

AFFIRMED

      Although Mark raises two arguments in his second assignment of error, he fails to brief the argument regarding the alleged preclusion created by the language of the Consent Judgment. Allegations made in the "assignments of error" section or in the "issues for review" section of a brief that are not argued in the body of the brief are considered abandoned. See , Uniform Rules, Courts of Appeal, Rule 2-12.4(B)(4) and Murphy v. 1st Lake Props. , 12-649 (La. App. 5 Cir. 5/23/13); 116 So.3d 964 n. 3, writ dismissed , 13-1728 (La. 10/25/13); 124 So.3d 1088. Therefore, we will only consider the briefed assignment of error in this opinion.

      Because assignments of error one and two are interrelated, we are discussing them jointly.


author: CHAISSON, J.

text:
    STATE of Louisiana v. Richard J. HEATH
    NO. 17-KA-502
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, RICHARD J. HEATH, Bruce G. Whittaker
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   CHAISSON, J.

Defendant, Richard J. Heath, appeals his conviction and enhanced sentence for simple burglary of an inhabited dwelling. For the reasons that follow, we affirm defendant's conviction and sentence, as amended, and remand the matter for correction of errors patent as noted herein. In addition, we grant appellate counsel's motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On May 18, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2. Defendant pled not guilty at his arraignment on June 10, 2015. Thereafter, on November 19, 2015, defendant withdrew his not guilty plea and, after being advised of his rights, pled guilty as charged. In accordance with the plea agreement, the trial court sentenced defendant to twelve years with the Department of Corrections and directed that the first year be served without benefit of parole, probation, or suspension of sentence.

The State then filed a bill of information, pursuant to the provisions of La. R.S. 15:529.1, seeking to have defendant adjudicated a second felony offender. After defendant stipulated to the multiple bill, the trial court vacated defendant's original sentence and resentenced him as a second felony offender to twelve years with the Department of Corrections without benefit of parole, probation, or suspension of sentence. The trial court ordered that defendant's sentence run concurrently with the sentence imposed in district court case number 14-1462 and with any other sentence defendant might be serving.

On August 17, 2017, the trial court granted defendant's motion for an out-of-time appeal.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed appellate counsel requests permission to withdraw as attorney of record for defendant.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. State v. Bradford , 676 So.2d at 1110.

In this case, defendant's appellate counsel has complied with the procedures for filing an Anders brief. He sets forth the procedural history of the case as well as the circumstances surrounding defendant's guilty pleas and sentencing. In particular, appellate counsel points out that defendant pled guilty and was sentenced pursuant to a counseled plea agreement, that defendant did not preserve any rulings for review under State v. Crosby , 338 So.2d 584 (La. 1976), and that defendant waived all non-jurisdictional defects by entering an unqualified guilty plea. Appellate counsel further sets forth that defendant's guilty pleas to the original and multiple offender bills of information were not constitutionally infirm because defendant was advised of and indicated that he understood the rights that would be waived by pleading guilty. Further, appellate counsel recognizes that defendant was not forced, coerced, or threatened to enter the guilty pleas, and that the sentences were imposed in conformity with the plea agreements. Defendant's appellate counsel concludes that after a conscientious and thorough review of the trial court record, he can find no non-frivolous issues to raise on appeal and no ruling of the trial court that arguably supports an appeal. Therefore, he requests permission to withdraw as attorney of record for defendant.

This Court has performed an independent, thorough review of the pleadings, minute entries, bills of information, and transcripts in the appellate record. Our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

We particularly note that the record reveals no constitutional infirmity or irregularity in defendant's guilty plea to the charge of simple burglary of an inhabited dwelling that would render it invalid. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

In the present case, the record reflects that defendant was advised of the nature of the charge against him as well as his constitutional rights. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self- incrimination. Defendant signed the waiver of rights form indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood the rights he was waiving by pleading guilty. Defendant was additionally informed of his sentencing exposure and of the actual sentence that would be imposed upon acceptance of his guilty plea. Further, during the guilty plea colloquy and in the waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty plea. After the colloquy with defendant, the trial court accepted defendant's plea as knowingly, intelligently, freely, and voluntarily made.

With respect to the multiple offender proceeding, the record shows that defendant was likewise adequately advised of his rights. The waiver of rights form and the transcript indicate that defendant was advised of his right to a hearing at which the State would have to prove that he was the same individual who had the prior felony conviction, that the time period between the completion of the sentence and the date of the crime was ten years or less, and that he was properly advised of his rights if the prior conviction was the result of a guilty plea. Defendant was also advised of his right to remain silent throughout the hearing. In addition, defendant was advised of the potential sentencing range as a second felony offender and the actual sentence he would receive. Defendant indicated that he had not been forced or coerced into stipulating to the multiple bill, that he understood his rights and the legal consequences of pleading guilty to the multiple offender bill of information, and that he wished to plead guilty. The trial judge thereafter accepted defendant's admission to the multiple offender bill as knowingly, intelligently, freely, and voluntarily made.

Further, defendant's enhanced sentence was imposed in accordance with the plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea. This Court has also applied La. C.Cr.P. art. 881.2(A)(2) to cases in which a defendant admits to the allegations in a habitual offender bill of information as part of a sentencing agreement.

State v. Robinson , 15-661 (La. App. 5 Cir. 2/24/16), 186 So.3d 1269, 1272. In addition, defendant's enhanced sentence falls within the sentencing ranges set forth in the applicable statutes. See La. R.S. 14:62.2 ; La. R.S. 15:529.1. Based on the foregoing, we find that defendant's guilty pleas to the original and multiple offender bills of information and the enhanced sentence imposed pursuant to the plea agreement do not present any issues for appeal.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent and find two errors that require correction. La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). First, although defendant was sentenced within the sentencing ranges, we note an error favorable to defendant that needs to be corrected with regard to the restriction of parole eligibility. In particular, the trial court improperly restricted defendant's parole eligibility for the entirety of his sentence. At the time of the offense in February of 2014, La. R.S. 14:62.2 provided, "Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years." La. R.S. 15:529.1(G) requires the enhanced sentence to be imposed without benefit of probation or suspension of sentence. The restrictions imposed on parole eligibility in multiple offender sentences under La. R.S. 15:529.1"are those called for in the reference statute." State v. Esteen , 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79 n.24, writ denied , 02-1540 (La. 12/13/02), 831 So.2d 983. The underlying statute in the instant case does not provide for the prohibition of parole for the entire length of the sentence, only for the first year. See State v. Earwood , 14-258 (La. App. 5 Cir. 10/29/14), 164 So.3d 883, 887 n.3. Accordingly, we amend defendant's sentence to reflect that only the first year is to be served without benefit of parole. State v. Payne , 17-14 (La. App. 5 Cir. 5/17/17), 220 So.3d 898, 903.

Second, we note that the minute entry/commitment and the State of Louisiana Uniform Commitment Order ("UCO") are inconsistent with the transcript. While the minute entry/commitment and the UCO reflect that defendant's sentence was to run concurrently with the sentence imposed in case number 14-1462, the transcript indicates that the trial judge ordered the enhanced sentence to run concurrently with the sentence imposed in case number 14-1462 and with any other sentences defendant might be serving. According to State v. Lynch , 441 So.2d 732, 734 (La. 1983), if "there is a discrepancy between the minutes and the transcript, the transcript must prevail."

Accordingly, we direct the district court to correct the minute entry/ commitment and the UCO to reflect that only the first year of defendant's sentence is to be served without parole eligibility and that defendant's sentence is to run concurrently with the sentence imposed in case number 14-1462 and with any other sentences defendant may be serving. We further instruct the 24th Judicial District Court Clerk of Court to transmit the original of the amended commitments to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections' legal department. State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

Based on the foregoing, we find that defendant's guilty plea, his multiple offender stipulation, and the enhanced sentence imposed pursuant to the plea agreement do not present any issues for appeal. Because appellate counsel's brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel's assertion, we affirm defendant's conviction, his multiple offender adjudication, and the sentence as amended herein. We remand the matter for correction of errors patent, and in addition, we grant appellate counsel's motion to withdraw as attorney of record for defendant.

CONVICTION AND SENTENCE, AS AMENDED, AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      In addition, defendant was notified of his right to file a pro se brief in this appeal. As of this date, defendant has not filed a pro se brief.

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

      It is noted that the trial court incorrectly advised defendant that the entire enhanced sentence had to be served without benefit of parole. However, this incorrect advisal regarding the restriction of parole eligibility is inconsequential since this Court is correcting the error herein. See errors patent review, infra.

      We note that defendant's original sentence was also imposed in conformity with the plea agreement; however, that sentence was vacated subsequent to defendant's stipulation to the multiple offender bill of information.

      In 2017, the restriction of benefits was removed from the statute (Acts 2017, No. 281, § 1, eff. August 1, 2017).


text:
    Irma DORSEY v. PURVIS CONTRACTING GROUP, LLC and Jon P. Purvis
    Irma Dorsey v. Scottsdale Insurance Company, et al
    NO. 17-CA-369 17-CA-370
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    PLAINTIFF/APPELLANT, IRMA DORSEY, NEW ORLEANS, In Proper Person
    COUNSEL FOR DEFENDANT/APPELLEE, SCOTTSDALE INSURANCE COMPANY, Jay R. Sever, NEW ORLEANS, Jennifer R. Kretschmann
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert M. Murphy
   WICKER, J.

Plaintiff-homeowner appeals the trial court's summary judgment in favor of defendant-insurer for damages arising out of her contractor-defendant's alleged substandard work performed on her home following Hurricane Katrina. For the following reasons, we affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Irma Dorsey, filed suit in the 24th Judicial District Court for the Parish of Jefferson against Jon Purvis, individually, Purvis Contracting Group, LLC (hereinafter collectively "Purvis"), its insurer, Scottsdale Insurance Company, and various subcontractors, for damages arising out of work performed during the renovation of plaintiff's home following Hurricane Katrina. In her petition, plaintiff alleged that her home sustained significant damages during Hurricane Katrina and that, on October 26, 2007, she contracted with Purvis to perform a complete rehabilitation and renovation of her home for the total sum of $78,643.88. Plaintiff further alleged that, after repairs began, Purvis sought an additional $35,000.00 over the contract price for the work performed.

In her petition, plaintiff claimed that some of the work included in the contract was not performed as required under the contract and other work was not performed in a workmanlike manner. Specifically, plaintiff claimed that the HVAC system in her home was not repaired properly; the wooden frame of her garage doors was not replaced; her front doors were not varnished or refinished; the plumbing lines repaired have burst or leaked; the exterior walls were not sufficiently insulated; one concrete stair is missing from the patio area; and the toilet and vent in her bathroom, the doorbell, and the garbage disposal have never functioned properly. Plaintiff additionally alleged in her petition that Purvis misrepresented that he was a licensed general contractor rather than a licensed home improvement contractor, which is distinguishable based upon the total repair contract price permitted. Plaintiff subsequently alleged that her home was tested at elevated levels of mold, which she claims has affected her health and caused mental distress.

On March 3, 2017, Scottsdale filed a motion for summary judgment, asserting that plaintiff's claims are excluded under the terms of the general commercial liability insurance policies issued to Purvis. Specifically, Scottsdale claimed that it issued four policies to Purvis that exclude coverage for (1) plaintiff's claims for damage to Purvis' work product or the cost to remediate Purvis' work product; (2) the cost of reimbursement for incomplete work; (3) the cost to repair faulty work when the faulty work does not cause damage to other property; (4) plaintiff's claims of mental anguish, inconvenience, or loss of income; (5) any damages caused by fraud or unfair trade practices; and (6) plaintiff's alleged damages resulting from mold.

In its memorandum in support of its motion for summary judgment, Scottsdale asserted that it issued four policies to Purvis (policy numbers CLS1291796 (the 2006 policy), CLS1401402 (the 2007 policy), CLS1511135 (the 2008 policy), and CPS1048078 (the 2009 policy) ). Scottsdale attached an authenticated copy of each policy to its motion for summary judgment. Plaintiff filed an opposition to Scottsdale's motion for summary judgment. In her opposition, plaintiff acknowledged that the "only policy in question for this matter is Policy # CLS1401302, which covered Purvis from July 25, 2007 to July 25, 2008," the time period during which Purvis performed work on her home.

In her opposition, plaintiff claimed that she suffered the following damages: (1) an advertising injury arising out of Purvis' advertisement as a Louisiana state licensed general contractor and not a home improvement contractor; (2) personal injury, including mold exposure, mental anguish, and distress; (3) property damage to her home involving her plumbing, electrical, and HVAC systems, as well as the installation of an insufficient amount of insulation in her home and (4) the loss of use of her home during subsequent repair as a result of Purvis' incomplete and improper work performed.

Plaintiff attached various exhibits to her opposition to Scottsdale's motion for summary judgment, which included: (1) the Home Improvement Contract between Plaintiff and Purvis; (2) Home Inspection Report; (3) Gracie Hart Electrical Inspection Report; (4) Mr. Cool repair estimate; (5) JC Services AC, LLC report; (6) Gurtler Bros. Inspection Report; (7) Winston Wood Inspection Report and Amended Report; (8) Winston Wood's curriculum vitae; (9) excerpts from Scottsdale Insurance 2007 policy; (10) Purvis Contracting Group Home Improvement Contractor License; and (11) correspondence from the Louisiana State Licensing Board of Contractors.

Scottsdale filed a reply memorandum to plaintiff's opposition. In its reply memorandum, Scottsdale objected to the admissibility of all of plaintiff's exhibits attached to her opposition to Scottsdale's motion for summary judgment, contending that the attachments were not admissible summary judgment evidence as provided in La. C.C.P. art. 966(A)(4). Scottsdale asserted that plaintiff's exhibits were not authenticated by affidavit and did not otherwise fall under the exclusive list of documents and evidence admissible in a summary judgment proceeding under La. C.C.P. art. 966(A)(4).

In its reply memorandum, Scottsdale further addressed plaintiff's allegation that she sustained an "advertising injury," which Scottsdale asserted plaintiff raised for the first time in her opposition to its motion for summary judgment. Nevertheless, concerning plaintiff's claims that Purvis falsely advertised its qualifications, Scottsdale first argued that the policy provides no coverage for the alleged injuries arising from false advertisement or unfair practices. Scottsdale further pointed to its policy's "Material Published with Knowledge of Falsity" exclusion, which provides that coverage is excluded for a "personal and advertising injury" arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity. Scottsdale again asserted that the policy in question provides no coverage for any of plaintiff's claims asserted.

At the April 7, 2017 hearing on Scottsdale's motion for summary judgment, counsel for Scottsdale orally re-urged its objection to the exhibits attached to plaintiff's opposition to its motion for summary judgment. The trial judge found that plaintiff's exhibits were not admissible summary judgment evidence under La. C.C.P. art. 966(A)(4) and did not consider the attachments in rendering his judgment on Scottsdale's motion. On April 17, 2017, the trial judge issued a written judgment granting Scottsdale's motion for summary judgment and dismissing all of plaintiff's claims against it with prejudice. Plaintiff timely appeals the summary judgment, contending that the trial court erred in its determination that the Scottsdale policy excludes coverage for all of plaintiff's claims.

LAW AND ANALYSIS

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Collins v. Home Depot, U.S.A. Inc. , 16-516 (La. App. 5 Cir. 3/15/17), 215 So.3d 918, 920 ; Bell v. Parry , 10-369 (La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Id.

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." La. C.C.P. art. 966(A)(3) ; see also Chauvin v. Shell Oil Co. , 16-609 (La. App. 5 Cir. 10/25/17), 231 So.3d 903, 2017 WL 4800236, 2017 La. App. LEXIS 1923. "[I]f the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La. C.C.P. art. 966(D)(1). "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." Id.

Louisiana Code of Civil Procedure art. 966 was amended and reenacted by La. Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of Article 966 governs the summary judgment proceedings in this case. La. C.C.P. art. 966(A)(4) now provides, "[t]he only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." The legislative comments to the amended version of Article 966 clarify that Subparagraph (A)(4), which is new, sets forth the exclusive list of documents that may be filed in support of or in opposition to a motion for summary judgment, and intentionally does not allow the filing of documents that are not included in the exclusive list, such as photographs, pictures, video images, or contracts, unless they are properly authenticated by an affidavit or deposition to which they are attached. Raborn v. Albea , 16-1468 (La. 1 Cir. App.5/11/17), 221 So.3d 104, 111 (quotations omitted)(citing La. C.C.P. art. 966, cmt. (c) (2015) ).

Appellate courts review a judgment granting or denying a motion for summary judgment de novo . Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Sarasino v. State , 16-408 (La. App. 5 Cir. 3/15/17), 215 So.3d 923, 927-28 ; Collins v. Home Depot, U.S.A. Inc. , supra .

Upon our review of the record, we first find that the trial court was correct in its determination that the attachments to plaintiff's opposition to Scottsdale's motion for summary judgment, which are not authenticated by affidavit or deposition as required under La. C.C.P. art. 966(A)(4), are not admissible summary judgment evidence and may not be considered in connection with the motion for summary judgment.

Concerning the determination of coverage under an insurance policy, the Louisiana Supreme Court has stated:

An insurance policy is a conventional obligation that constitutes the law between the insured and the insurer, and the agreement governs the nature of their relationship. La. C.C. art. 1983. An insurance policy is a contract, which must be construed employing the general rules of interpretation of contracts. Reynolds[ v. Select Properties, Ltd.], 634 So.2d [1180] at 1183 [ (La. 1994) ] ; La. C.C. arts. 2045 - 2057. If the insurance policy's language clearly expresses the parties' intent and does not violate a statute or public policy, the policy must be enforced as written. However, if the insurance policy is susceptible to two or more reasonable interpretations, then it is considered ambiguous and must be liberally interpreted in favor of coverage. Reynolds, supra ; Newby v. Jefferson Parish Sch. Bd. , 99-0098 (La. App. 5 Cir. 6/1/99), 738 So.2d 93.
Liability insurance policies should be interpreted to effect, rather than to deny coverage. Yount v. Maisano , 627 So.2d 148, 151 (La. 1993). However, it is well-settled that unless a statute or public policy dictates otherwise, the insurers may limit liability and impose such reasonable conditions or limitations upon their insureds. Reynolds, 634 So.2d at 1183 ; Livingston Parish School Board v. Fireman's Fund American Insurance Company , 282 So.2d 478 (La. 1973) ; Oceanonics, Inc. v. Petroleum Distributing Company , 292 So.2d 190 (La. 1974).
In these circumstances, unambiguous provisions limiting liability must be given effect. Jones v. MFA Mutual Insurance Company, 398 So.2d 10 (La. App. 3 Cir. 1981) ; Snell v. Stein , 261 La. 358, 259 So.2d 876 (La. 1972) ; Niles v. American Bankers Insurance Company , 258 So.2d 705 (La. App. 3 Cir. 1972). With that stated, we note that the insurer bears the burden of proving that a loss falls within a policy exclusion. Blackburn v. National Union Fire Ins. Co. , 00-2668 (La. 4/3/01), 784 So.2d 637, 641.

Supreme Servs. & Specialty Co. v. Sonny Greer, Inc. , 06-1827 (La. 5/22/07), 958 So.2d 634, 638-39.

The 2007 Scottsdale CGL policy at issue provides coverage for "those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" if such injury or damage is caused by an "occurrence " that takes place in the coverage territory and during the policy period. The policy at issue further provides coverage for damages arising out of a "personal and advertising injury" as defined in the policy.

The policy contains exclusions, however, which Scottsdale contends exclude coverage for all of plaintiff's claims in this case. In support of its motion for summary judgment as to the policy at issue, Scottsdale relied on the following exclusions:

(1) The Property Damage Exclusion

(2) The property damage exclusion, in pertinent part, excludes coverage for "property damage " to:

(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or
(6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it.
Paragraph (6) of this exclusion does not does not apply to "property damage" included in the "products-completed operations hazard."

(2) The Work Product Exclusion

The work product exclusion excludes from coverage:

"property damage" to "your product " arising out of it or any part of it.

(3) The Damage to Your Work Exclusion

The "damage to your work" exclusion excludes from coverage:

"property damage" to "your work " arising out of it or any part of it and included in the "products-completed operations hazard."
This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.

(4) The Fungi or Bacteria Exclusion

The fungi or bacteria exclusion excludes from coverage:

"Bodily injury" or "property damage" which would not have occurred, in whole or in part, but for the actual, alleged or threatened inhalation of, ingestion of, contact with, exposure to, existence of, or presence of, any "fungi" or bacteria within a building or structure....

(5) Personal and Advertising Injury Exclusion

The personal and advertising injury exclusion excludes:

"bodily injury" arising out of "personal and advertising injury."

(6) Material Published With Knowledge of Falsity

This exclusion excludes from coverage:

"Personal and Advertising Injury" arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.

Louisiana jurisprudence has consistently recognized that commercial general liability policies are not performance bonds and are not intended as a guarantee of the quality of the insured's products and work. W.S. McKenzie & H.A. Johnson, III, Insurance Law and Practice, La. Civil Law Treatise, Vol. 15, Section 198 (2nd ed. 1996); Vintage Contr., L.L.C. v. Dixie Bldg. Material Co. , 03-422 (La. App. 5 Cir. 9/16/03), 858 So.2d 22, 28 (quotations omitted); Breaux v. St. Paul Fire & Marine Ins. Co. , 345 So.2d 204, 208 (La. App. 3rd Cir. 1977) ; Korossy v. Sunrise Homes, Inc. , 94-473 (La. App. 5 Cir. 3/15/95), 653 So.2d 1215, writ denied , 95-1536 (La. 9/29/95), 660 So.2d 878. Work-product exclusions similar to the one contained in Scottsdale's policy have been uniformly upheld in Louisiana. See, Vintage Contr., L.L.C., supra ; Joe Banks Drywall & Acoustics, Inc. v. Transcontinental Ins. Co. , 32,743 (La. App.2 Cir. 3/1/00), 753 So.2d 980 ; Western World Ins. Co. v. Paradise Pools & Spas , 93-723 (La. App. 5 Cir. 2/23/94), 633 So.2d 790 ;

Rivnor Properties v. Herbert O'Donnell, Inc. , 92-1103 (La. App. 5 Cir. 1/12/94), 633 So.2d 735, writ denied , 94-1293 (La. 9/2/94), 643 So.2d 147 ; Hallar Enterprises, Inc. v. Hartman , 583 So.2d 883 (La. App. 1st Cir. 1991), Castigliola v. Department of Community Development , 538 So.2d 1139 (La. App. 5th Cir. 1989). Louisiana courts have consistently found that a commercial general liability policy, such as the Scottsdale policy at issue in this case, excludes damages to repair and replace the insured's defective products or faulty workmanship.

The Louisiana Supreme Court-in considering a policy's exclusions identical in language to the Scottsdale policy at issue in this case and in addressing a split in the circuit courts of appeal concerning similar policy exclusions-found that the work product exclusion "reflects the insurance company's intent to 'avoid the possibility that coverage under a CGL policy will be used to repair and replace the insured's defective products and faulty workmanship.' A CGL policy is not written to guarantee the quality of the insured's work or product." Supreme Servs. & Specialty Co. v. Sonny Greer, Inc. , 06-1827 (La. 5/22/07), 958 So.2d 634, 641 (citing McMath Const. Co., Inc. v. Dupuy , 03-1413 (La. App. 1st Cir. 11/17/04), 897 So.2d 677, 682, writ denied , 04-3085 (La. 2/18/05), 896 So.2d 40 ). The Supreme Court went on to state that the work product exclusion in a general commercial liability policy identical to the Scottsdale policy at issue "applies to both the contractor as well as others acting on his behalf-subcontractors" and "does not insure any obligation of the policyholder to repair or replace his own defective product." Supreme Servs. & Specialty Co. , 958 So.2d at 641, 645.

A review of the policy at issue in this case reflects that the damages plaintiff alleges directly resulted from the work Purvis performed and are specifically excluded under the policy. Plaintiff claims that the work performed- rehabilitating and renovating her entire residence, which was gutted to the wall studs, following Hurricane Katrina-was not completed properly or in a workman like manner. The physical property damage plaintiff alleges is related to Purvis' work performed to her home pursuant to the contract. Thus, plaintiff's property damage claims are specifically excluded from coverage under the work product and damage to your work exclusions. As stated above, Louisiana jurisprudence has consistently held that a GCL policy does not serve as a performance bond and does not cover damages to the property on which the contractor worked and arising out of faulty or substandard work. Supreme Servs. & Specialty Co., supra .

Moreover, we find that the policy at issue does not provide coverage for plaintiff's remaining claims. As to plaintiff's claim for damages arising out of mold exposure, those claims are specifically excluded under the policy's "Fungi or Bacteria Exclusion." Further, although the policy does provide coverage for a "personal and advertising injury," plaintiff's fraud claims and unfair practice claims related to Purvis' alleged false advertisement as a licensed general contractor do not fall within the policy's provisions for coverage.

Scottsdale's policy at issue provides coverage for "those sums that the insured becomes legally obligated to pay as damages because of 'personal and advertising injury' to which this insurance applies." The policy specifically defines "personal and advertising injury" as follows:

(14) "Personal and advertising injury" means injury, including consequential "bodily injury", arising out of one or more of the following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor;
d. Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services;
e. Oral or written publication, in any manner, of material that violates a person's right of privacy;
f. The use of another's advertising idea in your "advertisement"; or
g. Infringing upon another's copyright, trade dress or slogan in your "advertisement".

Plaintiff's claims related to Purvis' alleged fraud, false advertising, and misrepresentation as a general contractor do not arise out of any of the enumerated offenses set forth in the policy's "personal and advertising" coverage provision. Therefore, we find that coverage for plaintiff's remaining claims, arising out of Purvis' alleged false and misleading advertisement as a Louisiana state licensed general contractor, do not fall within the policy's definition of "personal and advertising injury" and thus are not covered under the terms of the policy at issue.

CONCLUSION

For the reasons provided herein, we find that the Scottsdale policies issued to defendant Purvis do not provide coverage for plaintiff's claims under the facts of this case and, thus, the trial judge was correct in granting Scottsdale's motion for summary judgment. Accordingly, we affirm the trial court's judgment.

AFFIRMED

      Plaintiff initially filed a "Petition for Damages, For Breach of Contract, and for Fraud" on November 12, 2008, in the 24th Judicial District Court, against Jon Purvis individually and Purvis Contracting Group, LLC. On July 31, 2012, Plaintiff filed a "Petition for Damages" in Civil District Court for the Parish of Orleans against Scottsdale Insurance Company, Purvis Contracting Group, LLC, and various subcontractors, including JBC Services, LLC, Ramm Plumbing, LLC, Gulf States and Edd's A.C. & Heating, LLC. That suit was subsequently transferred to the 24th Judicial District Court for the Parish of Jefferson and was consolidated with the petition filed on November 12, 2008, against Jon Purvis individually and Purvis Contracting Group, LLC.

      Plaintiff further alleged that Purvis fraudulently entered into the contract at issue for $76,643.88, and that Purvis knew at the time the contract was signed that the work could not be performed for the contract price.

      Scottsdale also asserted, as to the 2006, 2008, and 2009 policies, that the policies excluded physical damage to tangible property that did not occur during the policy period.

      Considering this stipulation by plaintiff, our analysis will consider only the July 25, 2007-July 25, 2008 Scottsdale policy at issue.

      An "occurrence" is defined in the policy as "an accident, which includes continuous or repeated exposure to substantially the same general harmful conditions."

      Property damage is defined in the policy as: "(a) physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or (b) Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it.

      "Your Product" means:
      (1) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by:
      (a) You;
      (b) Others trading under your name; or
      (c) A person or organization whose business or assets you have acquired; and
      (2) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products.

      The policy provides that "your work:"
      (a) Means:
      (1) Work or operations performed by you or on your behalf; and
      (2) Materials, parts or equipment furnished in connection with such work or operations.
      (b) Includes:
      (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your work," and
      (2) The providing of or failure to provide warnings or instructions.

      The policy defines "products-completed operations hazard Products-completed operations hazard" to include:
      a. Includes all "bodily injury" and "property damage" occurring away from premises you own or rent and arising out of "your product" or "your work" except:
      (1) Products that are still in your physical possession;
      or
      (2) Work that has not yet been completed or abandoned. However, "your work" will be deemed completed at the earliest of the following times:
      (a) When all of the work called for in your contract has been completed.
      (b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site.
      (c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed.

      In brief to this Court, plaintiff further alleges that the trial court erred in granting summary judgment because "Scottsdale was not being forthright in its production of materials and answers during discovery; which Dorsey STRONGLY believes proves deceit on the part of the insurer...." (Emphasis original). This assignment of error was not briefed and is, thus, abandoned on appeal. See Louisiana Uniform Rules of Courts-Court of Appeal, Rule 2-12.4(B).