author: PER CURIAM:

text:
    STATE EX REL. Rodney HAMILTON v. STATE of Louisiana
    No. 2015-KH-1916
    Supreme Court of Louisiana.
    12/16/2016
   PER CURIAM:

| j Denied. Relator’s application was not timely filed in the District Court, and he has failed to carry his burden to show that an exception applies. La.C.Cr.P. Art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claim is not cognizable on collateral review. La.C.Cr.P. Art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Thomas, 07-0634 (La. 1/11/08), 972 So.2d 323.

Relator has now fully litigated nearly a dozen applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C,Cr.P. Art. 930.4 and within the limitations period as set out in La. C.Cr.P. Art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr,P. Art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

HUGHES, J., would grant the writ.


source: Caselaw Access Project

license: Public Domain

text:
    STATE EX REL. Calvin J. BRYANT v. STATE of Louisiana
    No. 2015-KH-1928
    Supreme Court of Louisiana.
    12/16/2016
   PER CURIAM:

1, Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We attach hereto and make a part hereof the District Court’s written reasons denying relator’s application.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Mark MCNEAL v. STATE of Louisiana
    No. 2015-KH-1924
    Supreme Court of Louisiana.
    12/16/2016
   PER CURIAM:

h Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. We attach hereto and make a part hereof the District Court’s written reasons denying relator’s application.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

HUGHES, J., would grant the writ for an evidentiary hearing.

Hughes, J., would grant the writ for an evidentiary hearing.


text:
    STATE EX REL. Tolbert MORRIS v. STATE of Louisiana
    No. 2015-KH-1824
    Supreme Court of Louisiana.
    01/09/2017
   PER CURIAM:

|!Writ granted. The district court’s ruling summarily denying relator’s post-conviction application is vacated, and the district court is directed to notify relator of any deficiencies in his application and afford relator the opportunity to correct them. See generally State ex rel. Johnson v. Maggio, 440 So.2d 1336, 1337 (La. 1983) (a pro-se petitioner “is not to be denied access to the courts for review of his case on the merits by the overzealous application of form and pleading requirements or hyper-technical interpretations of court rules.”).


text:
    STATE EX REL. Corneilous WHEELER v. STATE of Louisiana
    No. 2015-KH-1424
    Supreme Court of Louisiana.
    01/09/2017
   PER CURIAM:

| rDenied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s application is repetitive. La.C.Cr.P. art. 930.4(D). We attach hereto and make a part hereof the District Court’s written reasons denying relator’s application.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C,Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive ^application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

_k

Attachment


text:
    STATE EX REL. Frank CRAVANAS v. STATE of Louisiana
    No. 2014-KH-1554
    Supreme Court of Louisiana.
    01/09/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL, DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| (Writ granted in part; otherwise denied. Because the terms of the statutes under which relator was sentenced do not include a prohibition on parole, see R.S. 14:60, R.S. 14:69.1, and R.S. 15:529.1, relator’s sentence is amended to delete the parole prohibitions imposed at sentencing. His parole eligibility is to be determined by the Department of Corrections, pursuant to R.S. 15:574.4. See, e.g., State ex rel. Calvin v. State, 03-0870 (La. 4/2/04), 869 So.2d 866. The District Court is directed to make an entry in the minutes reflecting this correction. See La.C.Cr.P. art. 882(A) (“An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.”).

In all other respects, the application is denied. Relator does not show that he pled guilty involuntarily or that he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). His remaining habitual offender claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030; State v. Thomas, 08-2912 (La. 10/16/09), 19 So.3d 466. We attach ^hereto and make a part hereof the District Court’s written ruling denying post-conviction relief.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is Anal. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Alireza SADEGHI
    NO. 2016-OK-2281
    Supreme Court of Louisiana.
    12/30/2016
   Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 529-944

11 Writ Granted. The District Court’s order setting briefing deadlines for appellate briefs due in this Court on January 4, 2017 is hereby vacated.


author: CRICHTON, J.

text:
    McLawrence FULLER v. D.L. PETERSON TRUST CO. and its Insurer, National Union Fire Insurance Company of Pittsburgh, and Adam M. Keys and National Oilwell Varco
    NO. 2016-C-1658
    Supreme Court of Louisiana.
    01/09/2017
    Hughes, J., would grant.
    Crichton, J., would grant and assign reasons.
   CRICHTON, J.

would grant and assigns reasons:

L! respectfully disagree with the Court’s decision to deny this writ application, and would grant the writ to reinstate the trial court’s ruling on the plaintiffs Motion for Judgment Notwithstanding the Verdict, which increased the damages award to the plaintiff in this matter. Specifically, based upon the information presented to this Court, the plaintiff appears to have had no previous physical trauma, and the evidence demonstrates that prior to the September 27, 2010, accident, he was an active and healthy individual. The plaintiff was not only a builder and contractor for thirty years, he also previously enjoyed heavily physical activities. As a result of the accident, the plaintiffs formerly asymptomatic degenerative disc disease has been horribly aggravated, and he now suffers the extreme consequences from those injuries sustained as a result of the accident. He is unable to participate in many, if not most, of the activities he previously enjoyed, and is largely living a sedentary life. For these reasons, in my view, the court of appeal erred in reversing the trial court’s judgment notwithstanding the verdict.


author: /s/ Bernette J. Johnson

text:
    IN RE: Susan L. BOWERS
    NO. 2016-OB-2262
    Supreme Court of Louisiana.
    01/09/2017
   ORDER

11 Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Susan L. Bowers, Louisiana Bar Roll number 21493, be and she hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ Bernette J. Johnson

JUSTICE, SUPREME COURT OF LOUISIANA


author: /s/ John L. Weimer

text:
    IN RE: APPEAL OF DECISION OF the DISCIPLINARY BOARD
    NO. 16-PDB-049
    NO. 2016-OB-1933
    Supreme Court of Louisiana.
    01/09/2017
   ORDER

| jBased on our review of the record, we find the disciplinary board was arbitrary and capricious in dismissing the complaint. This court’s opinion in In re: Bilbe, 02-1740 (La. 2/7/03), 841 So.2d 729, is limited to the unique facts presented and does not stand for the blanket proposition that an attorney’s failure to pay litigation-related expenses can never constitute conduct prejudicial to the administration of justice. Accordingly, pursuant to Supreme Court Rule XIX, § 11(B), this matter is remanded to the Office of Disciplinary Counsel to conduct further investigation and to institute formal charges, if appropriate.

FOR THE COURT:

/s/ John L. Weimer

JUSTICE, SUPREME COURT OF LOUISIANA


author: CRICHTON, J.,

text:
    Tanya MADERE v. Louise Gautreaux COLLINS, M.D., and Ochsner Medical Center-Kenner
    NO. 16-CC-2011
    Supreme Court of Louisiana.
    01/09/2017
   CRICHTON, J.,

additionally concurs and assigns reasons:

Jjl agree that the district court abused its discretion and that a remand is warranted — ordering the district court to hear the motion for summary judgment without consideration of the untimely affidavit.

I write separately to spotlight my concern that district courts are improperly applying La. C.C.P. art. 966(B)(2) and ignoring La. D.Ct. R. 9.9(c). See Newsome v. Homer Memorial Medical Center, 10-0564 (La. 4/9/10), 32 So.3d 800 (holding that the district court abused its discretion in granting the plaintiffs untimely motion for continuance in order to file an expert affidavit in support of its opposition); see also Guillory v. Chapman, 10-1370 (La. 9/24/10), 44 So.3d 272 (holding that the court of appeal erred in ruling that the district court abused its discretion in excluding an opposing affidavit to a motion for summary judgment). Before a district court can consider an untimely affidavit, a party must show “good cause under La. C.C.P. art. 966(B) why she should have been given additional time to file an opposing affidavit.” See Sims. v. Hawkins-Sheppard, 11-0678, p. 4 (La. 7/1/11), 65 So.3d 154, 157 (internal quotations removed).

This case adds to my concern. Despite the district court’s grant of a nearly three-month continuance on the hearing on the defendant’s motion for summary judgment, the plaintiff waited until two days prior to the hearing to file an | opposing affidavit. Doing so was impermissible under La. C.C.P. art. 966(B)(2). Buggage v. Volks Constructors, 2006-0175 (La. 5/5/06), 928 So.2d 536, 536 (“The time limitation established by La. C.C.P. art. 966(B) for the serving of affidavits in opposition to a motion for summary judgment is mandatory; affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court.”). Under these circumstances, the district court abused its discretion.


text:
    STATE of Louisiana v. Calvin A. ROUSSELL, Jr.
    No. 2016-KP-0443
    Supreme Court of Louisiana.
    01/09/2017
   PER CURIAM:

| denied. A district court may dispose of an application for post-conviction relief summarily, even if it states a claim on which relief could be granted, see La. C.Cr.P. art. 928, if the factual and legal issues it presents can be resolved based on the application and other reliable documents submitted or available to the court. La.C.Cr.P. art. 929(A); State ex rel. Tassin v. Whitley, 602 So.2d 721, 722-23 (La. 1992). Relator fails to show any factual issues of significance are sharply contested and therefore fails to show the district court abused its discretion when it resolved his claims without an evidentiary hearing. We attach hereto and make a part hereof the District Court’s written reasons denying relator’s application.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in |2accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


text:
    Tamika DAVIS o/b/o Tyrone Davis v. INTERIM LSU HOSPITAL a/k/a University Medical Center
    NO. 2016-CC-1040
    Supreme Court of Louisiana.
    October 12, 2016
   h Granted. Plaintiff failed to request service on any of the proper parties within the ninety-day period mandated by La. R.S. 13:1507(D) and La. Code Civ.P. art. 1672(C). Accordingly, the judgment of the district court denying relator’s exception of insufficiency of service of process is reversed, and the exception is hereby granted.

HUGHES, J., concurs with result.


text:
    Cecelia FRANCESCON v. John HAZEL, et al.
    NO. 2016-CC-1025
    Supreme Court of Louisiana.
    October 12, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 14-3656; to the Court of Appeal, Second Circuit, No. 50837-CW

| iDenied.

KNOLL, J., would grant.

HUGHES, J., would grant.


text:
    CHANNELSIDE SERVICES, LLC v. CHRYSOCHOOS GROUP, INC.
    NO. 2016-C-1079
    Supreme Court of Louisiana.
    October 12, 2016
   Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 13-10835; to the Court of Appeal, Fourth Circuit, No. 2015-CA-0064

11 Denied.

KNOLL, J., would grant.

HUGHES, J., would grant.


text:
    STATE EX REL. Brandon DICKSON v. STATE of Louisiana
    NO. 2015-KH-1706
    Supreme Court of Louisiana.
    October 17, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. K, No. 13F23544; to the Court of Appeal, Second Circuit, No. 49,984-KA;

|! Denied.


text:
    STATE of Louisiana v. Michael DABNEY
    NO. 2015-KO-1852
    Supreme Court of Louisiana.
    October 17, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 518-667; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0001;

11Denied.


text:
    STATE of Louisiana v. Theodis GUILLORY
    NO. 2015-KO-1915
    Supreme Court of Louisiana.
    October 17, 2016
   Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 07-11-0080; to the Court of Appeal, First Circuit, No. 2015 KA 0268

| denied.


text:
    STATE of Louisiana v. Willie MIMS
    NO. 2015-KO-1921
    Supreme Court of Louisiana.
    October 17, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. F, No. 88839; to the Court of Appeal, Second Circuit, No. 50,-143-KA

11 Denied.


text:
    STATE of Louisiana v. David BROWN
    NO. 2016-KK-1890
    Supreme Court of Louisiana.
    October 19, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. A, No. 520401; to the Court of Appeal, First Circuit, No. 2016 KW1355;

| denied.


text:
    Landis J. CAMP v. Chris J. DIGRADO, M.D. & Lammico Insurance Company
    No. 2016-OC-1826
    Supreme Court of Louisiana.
    October 19, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 747-616; to the Court of Appeal, Fifth Circuit, No. 16-CA-190

| denied.


text:
    STATE of Louisiana v. Ronald Maurice VAIL
    NO. 2015-K-1589
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 1202116; to the Court of Appeal, First Circuit, No. 2014 KA 1492

| ■) Denied.


text:
    STATE of Louisiana v. Nykeshun G. NEALON
    NO. 2015-KO-1964
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Richland, 5th Judicial District Court Div. B, No. 201313; to the Court of Appeal, Second Circuit, No. 50,-089-KA

| ^Denied.


text:
    STATE of Louisiana v. Jessie GRACE
    NO. 2016-KP-0120
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 93-1815; to the Court of Appeal, Fifth Circuit, No. 15-KH-640.

11Denied.

CRICHTON, J., would grant.


text:
    STATE of Louisiana v. Willie RICHARDSON
    NO. 2016-KK-0870
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 481-196; to the Court of Appeal, Fourth Circuit, No. 2016-K-0085

h Denied.

KNOLL, J„ would grant.

WEIMER, J., would grant.


text:
    Samuel R. GUY, et ux. v. EMPRESS, L.L.C., et al.
    NO. 2016-C-1118
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Desoto, 42nd Judicial District Court Div. B, No. 73965; to the Court of Appeal, Second Circuit, No. 50,-404-CA

^Denied.


text:
    Teresa Wallner CABALLERO v. David Fernando CABALLERO
    NO. 2016-C-1148
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, The Family Court, No. 172,009; to the Court of Appeal, First Circuit, No. 2015 CA 1119

| ¶ Denied.

KNOLL, J., would grant.

WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    Willie Lee THOMAS v. ECONOMY PREMIER ASSURANCE COMPANY, et al.
    NO. 2016-C-1169
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. A, No. 562,389; to the Court of Appeal, Second Circuit, No. 50,-638-CA

11 Denied.


text:
    CAMBAS ELECTRIC, INC. v. The MCDONNEL GROUP, L.L.C. et al.
    NO. 2016-CC-1774
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No 2014-6440; to the Court of Appeal, Fourth Circuit, No. 2016-C-0720.

|! Granted. Plaintiffs allegations regarding the validity of the arbitration clause are intertwined with its arguments relating to the validity of the entire subcontract. Therefore, the issue is properly presented to arbitrator, not the court. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006); Rain CII Carbon LLC v. Conoco-Phillips Co., 12-0203 (La. App. 3 Cir. 10/24/12), 105 So.3d 757, writ denied, 12-2496 (La. 1/18/13), 107 So.3d 631. Accordingly, the judgment of the district court is reversed and relators’ exception of prematurity is granted.

HUGHES, J., would deny.


text:
    JODI PROPERTIES, LLC v. Titus COCHRAN and Phyllis Cochran
    NO. 2016-OC-1277
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 2014-2878; to the Court of Appeal, First Circuit, No. 2015 CA 1327

_JjNot considered. Not timely filed. See Supreme Court Rule X, § 5.


text:
    STATE EX REL. Charles H. PARKER, Jr. v. STATE of Louisiana
    No. 2015-KH-1237
    Supreme Court of Louisiana.
    October 28, 2016
   Applying for Reconsideration of this Court’s action dated May 27, 2016; Parish of Franklin, 5th Judicial District Court Div. A, No. 26,203F; to the Court of Appeal, Second Circuit, No. 50204-KH.

|T Reconsideration not considered. See La.S.Ct. Rule IX, § 6.


text:
    Donald BURGO v. Lois Eva Sampey CHAMBERS (Burgo) et al.
    NO. 2016-C-0773
    Supreme Court of Louisiana.
    October 28, 2016
   Applying for Reconsideration of this Court’s action dated September 23, 2016, Parish of St. Mary, 16th Judicial District Court Div. E, No. 19,379; to the Court of Appeal, First Circuit, No. 2015 CA 0485.

11 Reconsideration denied.


text:
    Willie Lee THOMAS v. ECONOMI PREMIER ASSURANCE COMPANY, et al.
    NO. 2016-C-1177
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. A, No. 562,389-A; to the Court of Appeal, Second Circuit, No. 50,-638-CA

h Denied.


text:
    Gloria SCOTT and Deania M. Jackson, on Behalf of Themselves and All Other Persons Similarly Situated v. The AMERICAN TOBACCO COMPANY, INC., et al. Gloria Scott, et al. v. The American Tobacco Company, Inc., et al.
    NO. 2016-C-1203
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 96-8461; to the Court of Appeal, Fourth Circuit, No. 215-CA-1352 C/W2015-C-0896

| denied.

WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    Reginald GREEN, et al v. Franklin Eliezer GARCIA-VICTORE, et al.
    NO. 2016-CC-1249
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2016-906 to the Court of Appeal, Fourth Circuit, No. 2016-C-0447

1 jDenied.

GUIDRY, J., would grant.


text:
    STATE EX REL. Frederick ROSS v. STATE of Louisiana
    NO. 2016-KH-1103
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 11-5224

[!WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Donald M. BOSWELL v. STATE of Louisiana
    NO. 2016-KH-1200
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. D, No. 80663; to the Court of Appeal, Second Circuit, No. 49,992-KH.

I,WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the eourt(s) below before filing in this Court nor shown the “extraordinary circumstances that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Ray GRIFFIN v. STATE of Louisiana
    NO. 2016-KH-1230
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. F, No. 55,362.

|;WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Richard Nathaniel MILLER v. STATE of Louisiana
    NO. 2016-KH-1231
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No.;

| ⅜WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Nicholas Andre OLIPHANT
    NO. 2016-KH-1320
    Supreme Court of Louisiana.
    November 7, 2016
   Applying for Writ of Certiorari and/or Review, Parish of Natchitoches, 10th Judicial District Court, Div. A, No. C9650; to the Court of Appeal, Third Circuit, No. 16-18;

|,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 6.


text:
    Regina E. WILES v. Stephen W. WILES
    NO. 2016-C-1345
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2010-6549; to the Court of Appeal, Fourth Circuit, No. 2015-CA-1302.

LNot considered. Not timely filed. See Supreme Court Rule X, § 5(a).


text:
    STATE EX REL. James EARL v. STATE of Louisiana
    NO. 2016-KH-1416
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. F, No. 11 CR5 112666; to the Court of Appeal, First Circuit, No. 2015 KA1383;

11 WRIT NOT CONSIDERED, Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE EX REL. Ronnie WHITE v. STATE of Louisiana
    NO. 2016-KH-1429
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. 23,978.

| ¶WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X '§ 5(b).


text:
    STATE EX REL. Demetrius D. NASH v. STATE of Louisiana
    NO. 2016-KH-1468
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, Nos. 22567-09, 27791-09; to the Court of Appeal, Third Circuit, Nos. 12-1146,12-1147

I,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE EX REL. Alvin BRATTON v. STATE of Louisiana
    NO. 2016-KH-1473
    Supreme Court of Louisiana.
    November 7, 2016
   Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court, Div. D, No. 644,-623;

| WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Kristopher JOHNSON v. State of LOUISIANA
    NO. 2016-KH-1150
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. K, No. 11-F2706W to the Court of Appeal, Second Circuit, No. 50899-KH

11 WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE EX REL. James DEANGELO Aro, Jr. v. STATE of Louisiana
    NO. 2016-KH-0680
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Divs. H, I, D, Nos. 15-F-001199, 14-F-002826,14-F-002904;

| WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX. REL. Sirvoris SUTTON v. STATE of Louisiana
    NO. 2016-KH-0958
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 364-161; to the Court of Appeal, Fourth Circuit, No. 2016-K-0161.

JjWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE EX REL. Wesley RICKS v. STATE of Louisiana
    NO. 2016-KH-1036
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. K, No. 12-1299F; to the Court of Appeal, Second Circuit, No. 49,609-KA.

I,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 6.


text:
    STATE EX REL. Wesley RICKS v. STATE of Louisiana
    NO. 2016-KH-1051
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. K, No. 2012-F-1299

hWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


author: McDonald, j.

text:
    The STATE of Louisiana v. ABBOTT LABORATORIES, INC.; Abbott Pharmaceuticals; Actavis Midatlantic, LLC; Andrx Laboratories, Inc.; Anip Acquisitions Co.; Auriga Pharmaceuticals, LLC; Blansett Pharmacal Company, Inc.; Boca Pharmacal, Inc.; Breckenridge Pharmaceuticals, Inc.; Camline, LLC; Caraco Pharmaceuticals Laboratories, Ltd.; Centrex Pharmaceuticals, Inc.; Cornerstone Therapeutics, Inc.; E. Clairborne Robins Company, Inc.; Edwards Pharmaceuticals, Inc.; Ferndale Laboratories, Inc.; Glenmark Pharmaceuticals, Inc.; Harvard Drug Group, LLC; Major Pharmaceuticals, Inc.; Rugby Laboratories, Inc.; Hi-tech Pharmacal Company, Inc; Jaymac Pharmaceuticals, LLC; Kenwood Therapeutics; Bradley Pharmaceuticals, Inc.; Larken Laboratories, Inc.; Laser Pharmaceuticals, LLC; Marnel Pharmaceuticals, Inc.; MCR American Pharmaceuticals, Inc.; Meda Pharmarceuticals, Inc.; Midlothian Laboratories, Inc.; Mylan, Inc.; Mylan Laboratories, Inc.; Mylan Pharmaceuticals, Inc.; Pernix Therapeutics Holdings, Inc.; Cypress Pharmaceuticals, Inc.; Hawthorn Pharmaceuticals, Inc.; Zyber Pharmaceuticals, Inc.; Poly Pharmaceuticals, Inc.; Prasco Laboratories; Propst Distribution, Inc.; Qualitest Pharmaceuticals, Inc.; Endo Pharmaceuticals, Inc.; Rivers Edge Pharmaceuticals, LLC; Shionogi, Inc.; Teamm Pharmaceuticals, Inc.; Accentia, Inc.; Teva Pharmaceuticals USA, Inc.; Goldline Laboratories, Inc.; Copley Pharmaceuticals, Inc.; Teva Women’s Health, Inc.; United Research Laboratories, Inc.; Vision Pharma, LLC; Warner Chilcott Corporation; Wraser Pharmaceuticals, LLC
    2015 CA 1854
    2015 CW 1626
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: OCTOBER 21, 2016
    Rehearing Denied December 22, 2016

      Jeffrey “Jeff’ Landry, Attorney General, Keetsie Gunnels, Nicholas J. Diez, Assistants Attorney General, Baton Rouge, Louisiana, And, Jerald P. Block, Thibo-daux, Louisiana, Attorneys for Plaintiff/Appellant, State of Louisiana
    T. MacDougall Womack, Baton Rouge, Louisiana, Attorneys for Defendants/Ap-pellees, Abbott Laboratories, Inc., Teva, Pharmaceuticals, USA, Inc., Goldine, Laboratories, Inc., Copley, Pharmaceuticals, Inc., Teva Women’s, Health, Inc., and Hi-Tech Pharmacal Company, Inc.
    Jay P. Lefkowitz, John P. Del Monaco, Devora W. Allen, Ross L. Weiner, New York, New York, Pro Hac Vice
    BEFORE: PETTIGREW, McDonald, and drake, jj.
   McDonald, j.

laThis is an appeal from a district court judgment sustaining an exception raising the objection of no right of action. For the foregoing reasons, we affirm the district court judgment in part, reverse in part, and remand the case for further proceedings.

RELEVANT FACTS AND PROCEDURAL HISTORY

On September 11, 2013, the State of Louisiana, through the Attorney General, James D. “Buddy” Caldwell, filed suit against pharmaceutical manufacturers, distributors, marketers, and sellers, namely Abbott Laboratories, Inc., Abbott Pharmaceuticals; Actavis, Inc., Activis Mid-Atlantic, L.L.C., Andrx Laboratories, Inc., Anip Acquisitions Company, Auriga Pharmaceuticals, L.L.C., Blansett Pharmacal Company, Inc., Boca Pharmacal, Inc., Breckenridge Pharmaceuticals, Inc., Camline, L.L.C., Caraco Pharmaceuticals Laboratories, Ltd., Centrix Phamaceuticals, Inc., Cornerstone Therapeutics, Inc., E. Clair-borne Robins Company, Inc., Edwards Pharmaceuticals, Inc., Ferndale Laboratories, Inc., Glenmark Pharmaceuticals, Inc., Inc., Harvard Drug Group, L.L.C., Major Pharmaceuticals, Inc., Rugby Laboratories, Inc., Hi-Tech Pharmacal Company, Inc., Jaymac Pharmaceuticals, L.L.C., Kenwood Therapeutics, Bradley Pharmaceuticals, Inc., Larken Laboratories, Inc., Laser Pharmaceuticals, L.L.C., Marnel Pharmaceuticals, Inc., MCR American Pharmaceuticals, Inc., Meda Pharmaceuticals, Inc., Midlothan Laboratories, Inc., Mylan, Inc., Mylan Laboratories, Inc., My-lan Pharmaceuticals, Inc., Pernix Therapeutics Holdings, Inc., Cypress Pharmaceuticals, Inc., Hawthorn Pharmaceuticals, Inc., Zyber 14Pharmaceuticals, Inc., Poly Pharmaceuticals, Inc., Prasco Laboratories, Propst Distribution, Inc., Qualitest Pharmaceuticals, Inc., Endo Pharmaceuticals, Inc., Rivers Edge Pharmaceuticals, L.L.C., Shionogi, Inc., Teamm Pharmaceuticals, Inc., Accentia, Inc., Teva Pharmaceuticals USA, Inc., Goldline Laboratories, Inc., Copley Pharmaceuticals, Inc., Teva Women’s Health, Inc., United Research Laboratories, Inc., Vision Pharma, L.L.C., Warner Chilcott Corporation, and Wraser Pharmaceuticals, L.L.C. (the defendants).

The State alleged that the defendants had engaged in an unlawful and deceptive scheme to receive Medicaid payments for drugs that were not eligible for Medicaid payments. The State raised claims under the Louisiana Unfair Trade Practice ACT (LUTPA), La. R.S. 51:1401, et seq., and the Louisiana Medical Assistance Programs Integrity Law (MAPIL), La. R.S. 46:437.1, et seq., as well as claims for fraud, negligent misrepresentation, redhibition, and unjust enrichment. The State prayed for an accounting of the profits or gains from the unlawful scheme, as well as damages, statutory fines, penalties, attorney fees, costs, and all other equitable relief.

On October 15, 2013, the defendants filed a notice of removal of the matter to the United States District Court for the Middle District of Louisiana, invoking an automatic stay of the proceedings. See 28 USC § 1446(d). On September 30, 2014, the United States District Court for the Middle District of Louisiana signed a ruling ordering that the matter be remanded to the Nineteenth Judicial District Court.

On July 17, 2015, the defendants filed joint peremptory exceptions raising the objections of no right of action and no cause of action. The State opposed the exceptions. A hearing was held on the exceptions on September 21, 2015. Thereafter, on October 2, 2015, the district court signed a judgment in favor of the defendants and against the State, sustaining the exception raising the objection of |fino right of action, and dismissing the suit. The State has appealed that judgment.

In its sole assignment of error, the State asserts that the district court erred in sustaining the defendants’ exception raising the objection of no right of action after determining that the Department of Health and Hospitals (DHH), as opposed to the State, is the real party in interest in this litigation.

STANDARD OF REVIEW

Whether a plaintiff has a right of action is ultimately a question of law; therefore, it is reviewed da novo on appeal. Torbert Land Co., L.L.C. v. Montgomery, 2009-1955 (La.App. 1 Cir. 7/9/10), 42 So.3d 1132, 1135, writ denied, 2010-2009 (La. 12/17/10), 51 So.3d 16.

DISCUSSION

The State asserts that clear constitutional and statutory authority, as well as the jurisprudence, mandate that the State is the real and actual party in interest in this litigation. The defendants maintain that the district court correctly recognized that the State cannot pursue claims that, by law, belong to a state agency. Defendants note that while the petition alleges that the defendants made false statements that were transmitted to DHH, and that DHH was harmed when it relied on those statements in making reimbursement decisions, DHH did not file the action. The defendants assert that the State, represented by the Attorney General, purported to bring the action in its own name in order to circumvent the prescriptive periods that would apply if DHH were the plaintiff.

Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. The | (¡function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Industrial Companies, Inc. v. Durbin, 2002-0665 (La. 1/28/08), 837 So.2d 1207, 1216.

In the absence of constitutional or statutory provisions to the contrary, the State cannot bring a cause of action that is the property of one of its political subdivisions which has the right to sue and be sued. State ex rel. Jones v. Doucet, 203 La. 743, 14 So.2d 622, 625 (1943), citing State v. Tensas Delta Land Co., Ltd., 126 La. 59, 52 So. 216, 221 (1910) and State v. Standard Oil Co. of La., 164 La. 334, 113 So. 867, 875 (1927).

The status of DHH is provided for by La. R.S. 36:251, which states in part:

A. The Department of Health and Hospitals is created and shall be a body corporate with the power to sue and be sued.

Moreover, DHH is specifically authorized to file suit on behalf of the Medical Assistance Program (Medicaid). La. R.S, 36:254(D)(2)(d).

The extensive powers of the Attorney General are provided for in La. R.S. 13:5036, which states in part:

The attorney general may institute and prosecute any and all suits he may deem necessary for the protection of the interests and rights of the state.

In the area of consumer protection, Louisiana Revised Statute 51:1404 provides for the powers of the Attorney General in part:

A. The Louisiana Attorney General’s Office, Public Protection Division, Consumer Protection Section shall have the following powers and duties:
(l)(a) To investigate, conduct studies and research, to conduct public or private hearings into commercial and trade practices in the distribution, financing and furnishing of goods and services to or for the use of consumers.
(b) In the furtherance of the above, the attorney general shall notify said seller, distributor, packer, or manufacturer who shall have the right to put on the record any and all pertinent information that may 17substantiate the commercial or trade practice and shall have the right of cross examination.
(c) Public disclosure shall not be made of any trade secret and commercial or financial information obtained from a person which is of a privileged or confidential nature.
(2) To suggest means of securing adequate consumer representation on public boards and commissions;
(3) To advise the governor and the legislature on matters affecting consumer interests, and to assist in developing executive policies, and to develop, draft and prepare legislative programs to protect the consumer;
(4) To promote consumer education;
(6) To do such other acts as are necessary and incidental to the exercise of the powers and functions of the section.
B. The attorney general may receive information and documentary material and may receive and otherwise investigate complaints with respect to acts or practices declared to be unlawful by this Chapter or other laws of this state and inform the public with respect thereto. The attorney general may institute legal proceedings and take such other actions provided for herein or which are necessary or incidental to the exercise of his powers and functions.

Further, the LUTPA and MAPIL statutes grant more specific powers to the Attorney General.

Louisiana Unfair Trade Practices Act

Louisiana Revised Statute 51:1405 provides in part:

A. Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby rendered unlawful.

Louisiana Revised Statute 51:1407 provides in part:

A. Whenever the attorney general has reason to believe that any person is using, has used, or is about to use any method, act, or practice declared by R.S. 51:1405 to be unlawful, he may bring an action for injunctive relief in the name of the state against such person to restrain and enjoin the use of such method, act, or practice. ...
B. In addition to the remedies provided herein, the attorney general may request and the court may impose a civil penalty against any person found by the court to have engaged in any method, act, or | spractice in Louisiana declared to be unlawful under this Chapter. In the event the court finds the method, act, or practice to have been entered into with the intent to defraud, the court has the authority to impose a penalty not to exceed five thousand dollars for each violation.

Louisiana Revised Statute 51:1408 provides in part:

A. The court may issue such additional orders or render judgments against any party, as may be necessary to compensate any aggrieved person for any property, movable or immovable, corporeal or incorporeal, which may have been acquired from such person by means of any method, act, or practice declared unlawful by R.S. 51:1405, whichever may be applicable to that party under R.S. 51:1418. Such orders shall include but not be limited to the following:
(1) Revocation, forfeiture, or suspension of any license, charter, franchise, certificate, or other evidence of authority of any person to do business in the state.
(2) Appointment of a receiver.
(3) Dissolution of domestic corporations or associations.
(4) Suspension or termination of the right of foreign corporations or associations to do business in this state.
(5) Restitution.
B. Unless otherwise expressly provided, the remedies or penalties provided by this Chapter are cumulative to each other and to the remedies or penalties available under all other laws of this state.

Louisiana Revised Statute 51:1416 provides:

In addition to remedies for contempt of court otherwise provided by law, any person who violates the terms of an injunction issued under R.S. 51:1407 or 1408, or an assurance of voluntary compliance as authorized under R.S. 51:1410, may be required to pay to the state treasurer a civil penalty of not more than five thousand dollars per violation. For the purposes of this Section, the district court issuing an injunction shall retain jurisdiction and the attorney general acting in the name of the state may petition for recovery of civil penalties provided in this Section.

Thus, LUTPA expressly gives the Attorney General the right to bring an action for injunctive relief (La. R.S. 51:1407A) and request civil penalties (La. R.S. 51:1407B) and restitution (La. R.S. 51:1408(5)). Therefore, the Attorney |9General has a right of action to bring its claims under LUTPA.

The Medical Assistance Programs Integrity Law

Louisiana Revised Statute 46:437.2 provides:

A. This Part is enacted to combat and prevent fraud and abuse committed by some health care providers participating in the medical assistance programs and by other persons and to negate the adverse effects such activities have on fiscal and programmatic integrity.
B. The legislature intends the secretary of the Department of Health and Hospitals, the attorney general, and private citizens of Louisiana to be agents of this state with the ability, authority, and resources to pursue civil monetary penalties, liquidated damages, or other remedies to protect the fiscal and programmatic integrity of the medical assistance programs from health care providers and other persons who engage in fraud, misrepresentation, abuse, or other ill practices, as set forth in this Part, to obtain payments to which these health care providers or persons are not entitled.

Thus, MAPIL expressly gives the Attorney General a right of action to pursue civil monetary penalties, liquidated damages, or other remedies in order to protect the fiscal and programmatic integrity of the medical assistance programs under La. R.S. 46:437.2B.

Therefore, as the Legislature has expressly given the Attorney General the right to bring its claims under both LUT-PA and MAPIL, we reverse the district court’s judgment sustaining the exception of no right of action as to the State’s claims pursuant to both LUTPA and MA-PIL. However, the State has not pointed out to this court, and we have not found, authority for the State to bring its claims outside of LUTPA and MAPIL for fraud, negligent misrepresentation, redhibition, and unjust enrichment. The right to bring those actions belongs to the state agency, in this case DHH. Thus, we affirm that portion of the district court judgment sustaining the exception raising the objection of no right of action as to the State’s claims for fraud, negligent misrepresentation, redhibition, and unjust enrichment outside of LUPTA and MAPIL.

^CONCLUSION

For the foregoing reasons, that portion of the district court judgment sustaining the exception raising the objection of no right of action as to the State’s claims for fraud, negligent misrepresentation, redhi-bition, and unjust enrichment is affirmed. That portion of the district court judgment sustaining the exception raising the objection of no right of action as to the State’s claims brought under the Louisiana Unfair Trade Practices Act and the Medicare Assistance Programs Integrity Law is reversed, and the matter is remanded to the district court for further proceedings. The writ is denied as moot. The costs of this appeal are assessed against the defendants.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED; WRIT DENIED AS MOOT.

      . The State filed both an appeal and a writ application from the judgment which was signed on October 2, 2015. The State has not disputed that the judgment is a final, appeal-able judgment. We have taken up the judgment on appeal; thus, the writ is moot, and is denied.

      . On January 11, 2016, Buddy Caldwell was succeeded in office as the Attorney General of Louisiana by Jeffrey "Jeff” Landry.

      . Silence as to any issue that was placed before the court is deemed a rejection of that demand or issue. Hooper v. Wisteria Lakes Subdivision, 2013-0050 (La.App. 1 Cir. 9/13/13), 135 So.3d 9, 20 n.14, writ not considered, 2013-2433 (La. 1/27/14), 130 So.3d 954. The district court did not address the exception raising the objection of no cause of action, thus, ''the silence in the judgment as to the objection of no cause of action is deemed a denial of that issue [or demand, or exception].”

      . DHH has since been renamed the Department of Health. 2016 La. Acts 300, § 1, eff. June 2, 2016, amending La. R.S. 36:251.

      . We note that in the case of fraud against the elderly or the disabled, enhanced civil penalties may be imposed pursuant to La. R.S. 51:1407C and D,


author: KEATY, Judge.

text:
    Davita SMITH v. ACADEMY SPORTS & OUTDOORS and Zurich American Insurance Company
    16-728
    Court of Appeal of Louisiana, Third Circuit.
    12/07/2016
    Bryan D. Scofield, James T. Rivera, Sco-field & Rivera, L.L.C., Post Office Box 4422, 100 E. Vermilion, Suite 301, Lafayette, Louisiana 70501, (337) 235-5353, Counsel for Defendants/Appellees: Academy Sports and Outdoors, Zurich American Insurance Company
    Davita Smith, In Proper Person, 237-A Buford Street, Raceland, Louisiana 70394, PlaintiffiAppellant

      Court composed of Billy H. Ezell, James T. Genovese, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

I t This court, on its own motion, issued a rule to the appellant, Davita Smith (Smith), to show cause why her appeal should not be dismissed as having been taken in a case in which no final judgment has been issued in accordance with La. Code Civ.P. Arts. 1841 and 2083 and for failure to satisfy the requirements of La. Code Civ.P. Art. 2121 in that there is no appeal for Office of Workers’ Compensation (OWC) docket number 10-8696. For the reasons that follow, we dismiss the appeal.

This appeal arises out of an alleged on-the-job injury that occurred on August 24, 2007, while Smith was employed by Academy Sports and Outdoors (Academy) store in Lafayette, Louisiana. Smith allegedly injured her back when a box of duck decoys fell on her. Academy and its workers’ compensation insurance carrier, Zurich American Insurance Company (Zurich), denied that Smith was injured.

In early 2010, Academy and Zurich obtained a report from Smith’s treating physician indicating that Smith was at maximum medical improvement (MMI) but would need continued treatment for chronic pain. A second medical opinion was obtained, and Smith filed a request for an independent medical examination (IME). When that examination was scheduled to be performed by a physician who had allegedly had a license status of “conditional/limited” from the Louisiana State Board of Medical Examiners, Academy and Zurich objected. Accordingly, on April 13, 2010, Academy and Zurich filed a Form 1008 seeking to change the IME physician. That filing was assigned docket number 08-588 in the OWC.

12Smith did not file a Form 1008 until September 21, 2010, after her benefits had been terminated for some time. That filing was assigned docket number 10-8696 in the OWC, as indicated by the citation issued to Academy when Smith’s 1008 was filed. At this point, it must be noted that the parties and the OWC began to indiscriminately use one of three docket numbers (08-588, 10-3420, and 10 — 8696) and also to indiscriminately use the captions “Academy Sports & Outdoors, et al. v. Davita Smith” and “Davita Smith v. Academy Sports & Outdoors, et al.” and/or both of these captions.

A trial date of May 25, 2011, was scheduled in docket number 10-3420. That trial date was continued on Smith’s motion filed in docket number 08-588. Three other trial dates were scheduled and continued on motions filed by Smith in docket number 08-588.

By order signed October 25, 2012, Smith’s attorney withdrew as counsel of record, and Smith began representing herself. The motion and order to withdraw were filed in docket number 10-3420. The attorney has intervened in that docket number seeking to recover fees for services rendered.

A hearing to determine why the suit in docket number 10-8696 should not be dismissed as abandoned was set for April 28, 2014. Docket number 10-8696 was not deemed abandoned. After that hearing, an order was issued in docket number 10-3420 for a status conference to be held. A trial date of July 31, 2014, was set but was later continued upon joint motion of the parties filed in docket number 10-|a3420. A trial date of December 4, 2014, was continued at Smith’s request filed in docket number 08-588.

A trial was finally held on June 10, 2015. Judgment was rendered and signed on October 20, 2015, in favor of Academy and Zurich in docket number 10-3420. That judgment dismissed Smith’s claims. Notice of judgment was issued on October 22, 2015. The notice of judgment bore docket number 10-8696, but the trial transcript reflected that the trial was held in docket number 10-3420.

On November 25, 2015, Smith filed a letter requesting an appeal in docket number 10-3420. An order for devolutive appeal in docket number 10-3420 was signed on December 1, 2015. No mention of docket numbers 08-588 and 10-8696 was made in either the request for an appeal or the order of appeal.

On April 29, 2016, before the appeal was lodged in this court, Academy and Zurich filed a motion in the OWC seeking to consolidate docket numbers 10-3420 and 10-8696. An order of consolidation was signed on May 2, 2016, by the Workers’ Compensation Judge (WCJ). Smith filed an objection to the consolidation after the order was signed.

When the record was lodged in this court, the record in docket number 10-3420 had two volumes while the record in docket number 10-8696 had one volume and purported to be an exhibit to the record in 10-3420. This court assigned docket numbers 16-727 and 16-728 and indicated that the two docket numbers were consolidated. On its own motion, this court issued a rule to Smith to show cause why the appeal in 16-728 (lower court docket number 10-8696) should not be dismissed as there was no final judgment in that docket number and because Smith had not obtained an order of appeal in that docket number.

[¿Despite being given an extension of time, Smith’s brief in response to the rule was untimely filed. Smith relied on the consolidation of the two suits by the OWC to support her argument that the appeal in 16-728 should be maintained.

Louisiana Code of Civil Procedure Article 2088 provides, in pertinent part, that “[t]he jurisdiction of the trial court over all matters in the ease renewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal.” Thereafter, the trial court retains jurisdiction “only over those matters not reviewable under the appeal.” Id. Article 2088 lists the types of matters over which the trial court continues to have jurisdiction after an order of appeal[.]

French Market Vendors Ass’n, Inc. v. French Market Corp., 12-964 (La.App. 4 Cir. 2/13/13), 155 So.3d 514, 523, unit denied, 13-657 (La. 5/3/13), 113 So.3d 215.

However, in Rhyne v. OMNI Energy Services Corp., 14-711, p. 6 (La.App. 3 Cir. 12/10/14), 155 So.3d 155, 159, writ not considered, 15-76 (La. 3/27/15), 161 So.3d 649, this court noted that “[w]hen two cases are consolidated, they each retain their own status as separate procedural entities.” “[Cjonsolidation is ‘a procedural device which allows a trial court to deal with similar issues of law or fact in one trial; it does not merge the parties, affect the running of delays, or authorize consolidation of judgments or appeals.’ ” Id., quoting Davis v. Am. Home Prods. Corp., 95-1035, p. 1 (La. 5/19/95), 654 So.2d 681, 681. Accordingly, we do not consider the consolidation of the two docket numbers in the OWC as controlling over the procedure by which the appeals will be considered in this court.

In this instance, Smith’s claims against Academy and Zurich were assigned docket number 10-8696 by the OWC. However, trial was held in docket number 10-3420, and judgment was rendered in docket number 10-3420, which was the docket number assigned to Academy and Zurich’s claims against Smith. These claims were not consolidated with Smith’s claims until after a judgment in 10-3420 Rhad already been issued and after an order of appeal of that judgment had already been signed. Therefore, no ruling has been made in docket number 10-8696. “It is fundamental that a judgment is the basis for an appeal[,] and[,] without a judgment!,] an appeal may not be considered.” Dupree v. State, 56 So.2d 155, 155 (La.App. 2 Cir. 1951).

Smith did not obtain an order of appeal in docket number 10-8696, and La. Code Civ.P. Art. 2121 requires that an order of appeal be obtained “from the court which rendered the judgment.”

The order of appeal is essential in the preservation of the appellant’s right to appeal. See LSA-C.C.P. Art.2088. Failure of the appellant to obtain the order of appeal forfeits his right to appeal. See Vitrano v. Vitrano, 353 So.2d 398 (La. App. 4 Cir.1977), writ not considered, 354 So.2d 1046 (La.1978). Thus, the appellate court has the authority to dismiss an appeal on its own motion or [on] motion of any party when the appellant has no right to appeal. See Deshotels v. Evangeline Parish Sch. Bd., 95-1462 (La.App. 3 Cir. 4/3/96), 671 So.2d 1136. (Emphasis added).

Stein v. Martin, 98-1370, pp. 3-4 (La.App. 4 Cir. 11/18/98), 723 So.2d 1038, 1040, writ denied, 98-3156 (La. 2/26/99), 730 So.2d 442.

We hereby dismiss the appeal in docket number 16-728 (lower court docket number 10-8696) because there has been no judgment issued in that docket number and because no order of appeal was obtained in docket number 10-8696. Smith’s appeal in docket number 16-727 (OWC docket number 10-3420) remains before this court. However, simultaneously with the issuance of this opinion, this court is issuing an order to the OWC to supplement the record in this court’s docket number 16-727 with the complete pleadings and all other filings in OWC docket number 10-3420 within thirty days of the issuance of this opinion. The order will further direct the OWC to supply the complete pleadings and all other filings in OWC docket numbers 08-588 and 10-8696 as exhibits to the appellate record in this court’s docket number 16-727. The order will also suspend briefing deadlines Rin this court’s docket number 16-727 until the supplementation of this record is completed by the OWC.

DEVOLUTIVE APPEAL DISMISSED IN COURT OF APPEAL DOCKET NUMBER 16-728.

      . In their answer to Smith's claim, Academy and Zurich asserted an exception alleging that her claims for temporary total disability (TTD), supplemental earnings benefits (SEB), and vocational rehabilitation were prescribed. Academy and Zurich used docket number 10-3420 to file the answer, even though that is not the docket number that was assigned when Smith filed her 1008.

      . The record does not indicate what pleading was initially filed and assigned docket number 10-3420.


author: JAMES T. GENOVESE, JUDGE

text:
    Amanda Rae DOUGA v. PROGRESSIVE CASUALTY INSURANCE COMPANY, et al
    16-543
    Court of Appeal of Louisiana, Third Circuit.
    OPINIONS RENDERED 12/07/2016

      Norman J. Thigpen, Law Office of Norman J. Thigpen, 2380 Lake Street, Lake Charles, Louisiana 70601, (337) 497-0123, COUNSEL FOR PLAINTIFF/APPELLANT: Amanda Rae Douga
    Michael H. Schwartzberg, Vamvoras, Schwartzberg & Associates, LLC, 1111 Ryan Street, Lake Charles, Louisiana 70601, (337) 433-1621, COUNSEL FOR PLAINTIFF/APPELLANT: Amanda Rae Douga
    Leah M. Penny, Casler, Bordelon & Lawler, 11560 Newcastle Avenue, Suite 200, Baton Rouge, Louisiana 70806, (504) 434-3109, COUNSEL FOR DEFENDANTS/APPELLANTS: Progressive Security Insurance Company and Teneeshia M. Powell
    James Ryan III, Craig R. Webb, James Ryan III & Associates, LLC, 201 St. Charles Avenue, Suite 2420, New Orleans, Louisiana 70170, (504) 599-5990, COUNSEL FOR DEFENDANTS/APPEL-LEES: All Star Buick GMC Truck, Inc. and Tower National Insurance Company

      Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese, Judges.
   JAMES T. GENOVESE, JUDGE

11 Plaintiff, Amanda Rae Douga, and Defendants, Teneeshia Powell and Progressive Security Insurance Company (Progressive), appeal the trial court’s grant of summary judgment relative to garage operations liability insurance coverage in favor of All Star Buick GMC Truck, Inc. (All Star) and Tower National Insurance Company (Tower), and its denial of their cross motion for summary judgment. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 7, 2013, Ms. Douga was driving her vehicle in Sulphur, Louisiana, when she was rear-ended by a vehicle being driven by Ms. Powell. Ms. Douga sustained bodily injuries from this collision. Ms. Powell was driving a vehicle owned by All Star, a car dealership in Sulphur. All Star had loaned the vehicle to Ms. Powell while it was repairing her vehicle.

At the time of the automobile accident, All Star had been issued a garage operations liability insurance policy by Tower. Ms. Douga filed suit on August 15, 2014, naming Ms. Powell, All Star, Tower, Progressive, and State Farm Mutual Automobile Insurance Company (State Farm), as defendants.

Progressive answered, admitting that it provided Ms. Powell with automobile liability insurance coverage in the statutory minimum amount of 12$15,000.00. All Star and Tower answered, denying liability and denying coverage under the terms of Tower’s garage operations liability insurance policy.

All Star and Tower filed a motion for summary judgment. They asserted that Ms. Powell was not an insured under Tower’s policy based on the following provisions:

SECTION II — LIABILTIY COVERAGE
A. Coverage
2. “Garage Operations” — Covered “Autos”
We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from “garage operations” involving the ownership, maintenance or use of covered “autos”.
3. Who Is An Insured
a. The following are “insureds” for covered “autos”:
(1) You for any covered “auto”.
(2) Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(d) Your customers. However, if a customer of yours:
(i) Has no other available insurance (whether primary, excess or contingent), they are an “insured” but only up to the compulsory or financial responsibility law limits lawhere the covered “auto” is principally garaged.
(ii) Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered “auto” is principally garaged, they are an “insured” only for the amount by which the compulsory or financial responsibility law limits exceed the limit of their other insurance.

All Star and Tower argue that Section II, Subsection A.3.a.(2)(d) of the policy applies, that it bars coverage to Ms. Powell for her negligence in causing the accident, and that coverage to a customer of All Star is only provided when the customer either lacks automobile insurance or has less than the minimum amount required by law. All Star and Tower sought judgment as a matter of law that Tower’s garage operations liability insurance policy did not provide liability coverage to Ms. Powell.

Ms. Douga filed a cross motion for summary judgment, which Ms. Powell and Progressive adopted and reiterated. Ms. Douga asserted that Tower’s policy provides one million dollars in liability coverage for customers who drive All Star loaner vehicles when their own autos are being serviced by All Star’s repair shop. She alleged that Ms. Powell was an insured based upon ambiguities in both the aforementioned provision and the following exclusion:

B. Exclusions

This insurance does not apply to any of the following:
7. Leased Autos
14Any covered “auto” while leased or rented to others. But this exclusion does not apply to a covered “auto” you rent to one of your customers while their “auto” is left with you for service or repair.

Ms. Douga sought judgment as a matter of law that ambiguities in Tower’s policy must be construed in favor of affording coverage to Ms. Powell for her negligence in causing the accident.

After a March 15, 2016 hearing, the trial court granted Tower’s motion, ruling that Tower’s garage operations liability insurance policy did not provide liability coverage to Ms. Powell. Judgment was signed March 29, 2016, granting the motion for summary judgment filed by All Star and Tower, denying the cross motion for summary judgment filed by Ms. Douga, and dismissing with prejudice Ms. Douga’s claims against All Star and Tower. Ms. Douga, joined by Progressive and Ms. Powell, have appealed.

ASSIGNMENTS OF ERROR

On appeal, two errors were assigned for our consideration: (1) the trial court “erred in granting the Motion for Summary Judgment filed by [All Star and] Tower[;]” and (2) the trial court “erred in denying the Cross Motion for Summary Judgment filed by [Ms. Douga].”

STANDARD OP REVIEW

Summary judgments are reviewed de novo using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Beslin v. Anadarko Petro. Corp., 15-291 (La.App. 3 Cir. 10/7/15), 175 So.3d 1134. “Interpretation of an insurance policy ordinarily involves a legal question that can be properly | ^resolved by a motion for summary judgment.” Bernard v. Ellis, 11-2377, p. 9 (La. 7/2/12), 111 So.3d 995, 1002 (citing Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945).

DISCUSSION

Ms. Douga argues the trial court erred in finding that Tower’s policy does not provide coverage for the accident which is the subject of this lawsuit, contending that Ms. Powell is an insured due to ambiguities within Tower’s policy. According to Ms. Douga, “[t]he policy language at issue in the instant appeal has been the subject of debate before this Honorable Court in the past, wherein coverage was ultimately afforded.” Ms. Douga refers this court to the decisions in Stanfield v. Hartford Accident & Indemnity Co., 581 So.2d 340 (La. App. 3 Cir. 5/22/91) and Hargrove v. Missouri Pacific Railroad Company, 00-228 (La.App. 3 Cir. 1/10/01), 780 So.2d 454, writ granted, 01-1228 (La. 6/29/01), 794 So.2d 804.

At the time of the accident sued upon in Stanfield, Donald Stanfield was operating a loaner bus supplied to his employer, TriState Charters, Inc. (Tri-State), by Wayne Bus and Equipment Sales, Inc. (Wayne), the franchise bus dealer with a sales and service facility where Tri-State’s bus was being repaired. Mr. Stanfield was driving the loaner bus in the course and scope of his employment with Tri-State when the bus was involved in a one-vehicle accident. Student passengers who were on the bus filed personal injury lawsuits against Mr. Stanfield; Tri-State; its commercial liability insurer, National Fire and Marine Insurance Company (National); Wayne; and, its garage liability insurer, Hartford Accident and Indemnity Company (Hartford). The trial court issued a declaratory judgment declaring that the coverage provided by Hartford was | ¿primary and the coverage provided by National was excess. Hartford appealed, arguing that Mr. Stan-field and Tri-State were not insureds under the terms of its policy. Hartford’s policy provided:

D. WHO IS AN INSURED.

1. For Covered Autos.
a. You are an insured for any covered auto.
b. Anyone else is an insured while using with your permission a covered auto except:
3. Your customers, if your business is shown in ITEM ONE of the declarations as an auto dealership.

Stanfield, 581 So.2d at 341 (emphasis added). In affirming the trial court, the majority concluded that the auto dealership customer exclusion applied only to customers of the automobile dealership side of Wayne’s business, but did not apply to customers of the garage side of Wayne’s business.

Hargrove involved an automobile/train collision wherein plaintiffs were passengers in the automobile being driven by Ricky Haley. Martin Automotive Group (Martin), an automobile dealership where Mr. Haley had taken his vehicle for repair, had a verbal agreement with Enterprise Rent A Car for customers receiving automotive repair. In affirming the trial court, the majority followed the reasoning in Stanfield to find that Mr. Haley and Martin were co-renters, making Mr. Haley an uninsured motorist under Martin’s insurance policies.

Tower avers that the trial court correctly concluded Ms. Powell was not insured under its policy. According to Tower, its policy is “different than, and much broader than, the language of the Stanfield policy.” Tower refers this court |7to the opinions of other circuits in the cases of Savana v. Certain Interested Underwriters at Lloyd’s London, 01-2450 (LaApp. 1 Cir. 7/2/02), 825 So.2d 1242; Baker v. Kenney, 99-2950 (La.App. 4 Cir. 5/3/00), 767 So.2d 711, writ denied, 00-2153 (La. 10/13/00), 771 So.2d 650; and, Gambino v. Lamulle, 97-2798 (LaApp. 4 Cir. 6/10/98), 715 So.2d 574. Tower argues “[t]hese cases ... demonstrate that the courts of this state have routinely upheld the provisions of garage operations policies that exclude coverage for customers of dealerships!] when the customer is uninsured or underinsured.”

The facts in Savana, Baker, and Gambi-no are analogous to the facts herein in that the vehicles at issue were loaned to the party involved in the accident to replace a vehicle that was being repaired. Savana, Baker, and Gambino conflict with this circuit’s decisions in both Stanfield and Har-grove. Whereas this court drew a distinction between the dealership side of the business and the garage side of the business in Stanfield, the courts in Savana, Baker, and Gambino did not.

Our colleagues on the first circuit in Savana examined this court’s interpretation of similar policy language in Stanfield and expressed:

With all due respect to the majority in Stanfield v. Hartford Ace. and Indem. Co., 89-1249 (LaApp. 3 Cir. 5/22/91), 581 So.2d 340, this Court finds the distinction made between the auto dealership customers and the garage customers to be an artificial one, and we agree with Judge Guidiy’s dissent, which found no ambiguity or conflict in the provisions of the policy....
... [W]e prefer to follow the opinions of the Fourth Circuit in the cases of Gambino v. Lamulle, 97-2798 (La.App. 4 Cir. 6/10/98), 715 So.2d 574, and Baker v. [Kenney], 99-2950 (La.App. 4 Cir. 5/3/00), 767 So.2d 711, writ denied, 2000-2153 (La. 10/13/00), 771 So.2d 650, which interpreted substantially the same policy language as the policy in the case at bar. We note that under La. R.S. 22:671, the primary liability coverage for a loaner vehicle is provided by the driver’s policy, not the service dealer’s policy. Thus, Forrester’s policy which met the requirements of La. R.S. 32:900 provided the plaintiff with compensation contemplated by the Louisiana Motor Vehicle ^Responsibility Law. Further, because the policy provided coverage in the event the driver of the covered vehicle lacks the insurance coverage required by La. R.S. 32:900, we find that the language of the policy does not violate public policy and should be interpreted as written.

Savana, 825 So.2d at 1244-45. We find that Stanfield and Hargrove are not applicable to the matter before us. Instead, we find Savana, Baker, and Gambino to be more instructive.

Ms. Douga also argues that the exclusionary language is ambiguous in that it does not define “customer.” This court considered this argument in Falgout v. Jester, 04-434 (La.App. 3 Cir. 9/29/04), 883 So.2d 515. At the time of the accident sued upon in Falgowt, Walter Jester, the negligent driver, was test-driving a vehicle in contemplation of purchasing the vehicle from an automobile dealership. Plaintiffs, seeking liability insurance coverage to Jester as an insured or omnibus insured under the dealership’s general liability insurance policy, argued that the exclusionary language was ambiguous, in part, because “customer” was not defined. Relying upon La.Civ.Code art. 2047, this court declared “[w]e do not find that the term ‘customer’ is a word of art or a technical term. Therefore, it must be given its generally prevailing meaning.” Falgout, 883 So.2d at 520. This court found “that the generally prevailing meaning of the word ‘customer’ would include a person such as Jester.” Id.

Considering the foregoing, we find no ambiguity in the policy and that the trial court did not err in granting summary judgment in favor of All Star and Tower. Tower’s insurance policy specifies that coverage to a customer of All Star is provided only when the customer either lacks automobile insurance or has insurance which fails to meet the minimum amount required by La.R.S. 32:900(B)(2). Because Ms. Powell was insured by Progressive in an amount | ()which satisfies the statutory minimum, we find that the exclusion in Tower’s policy applies, and Ms. Powell is excluded from coverage under the policy.

DECREE

For the foregoing reasons, the trial court judgment of March 29, 2016, which granted the motion for summary judgment of All Star and Tower, denied the cross motion for summary judgment of Ms. Dou-ga, and dismissed with prejudice Ms. Dou-ga’s claims against All Star and Tower is hereby affirmed. All costs of this appeal are assessed equally to Plaintiff/Appellant, Amanda Rae Douga, and Defendants/Appellants, Progressive Security Insurance Company and Teneeshia Powell.

AFFIRMED.

      . Progressive was erroneously identified in Ms. Douga's petition as Progressive Casualty Insurance Company.

      . The denial of a motion for summary judgment is an interlocutory judgment from which, ordinarily, an appeal may not be taken. La.Code Civ.P. art. 968. However, when there is also an appeal from a final judgment, i.e., a trial court’s grant of summary judgment, an interlocutory ruling may also be reviewed by the appellate court. See Mackmer v. Estate of Angelle, 14-665 (La.App. 3 Cir. 12/10/14), 155 So.3d 125, writ denied, 15-69 (La. 4/2/15), 176 So.3d 1031.

      . State Farm provided Ms. Douga with uninsured/underinsured motorist (UM) insurance. State Farm has abstained from all proceedings relating to the parties’ cross-motions for summary judgment.

      . Louisiana Revised Statutes 32:900(B)(2) compels all motor vehicles registered in Louisiana to have liability coverage in the amount of $15,000.00 per person with a limit of $30,000.00 per accident, and property damage coverage in the amount of $25,000.00.


text:
    STATE of Louisiana v. Dudley MELANCON, Jr.
    16-191
    Court of Appeal of Louisiana, Third Circuit.
    12/7/2016

      Paula C. Marx, Louisiana Appellate Project, Post Office Box 80006, Lafayette, Louisiana 70598-0006, (337) 991-9757, Counsel for Defendant/Appellant: Dudley Melancon, Jr.
    Earl B. Taylor, District Attorney, Jennifer M. Ardoin, Assistant District Attorney, Post Office Drawer 1968, Opelousas, Louisiana 70571, (337) 948-0551, Counsel for Appellee: State of Louisiana
    Court composed of James T. Genovese, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   KEATY, Judge.

| defendant, Dudley Melancon, Jr., appeals his conviction of simple robbery. For the following reasons, we affirm Defendant’s conviction.

FACTS AND PROCEDURAL BACKGROUND

On December 30, 2013, a black male entered the 167 Truck Stop and Gator Gold Casino (casino) in St. Landry Parish and handed a note to the cashier, Chelsea Rogers, demanding money. After Rogers gave him approximately $1,800, he ran out of the casino. Rogers informed her boss, who ran into the parking lot but failed to see the robber. Around that same time, Mary Mayo, a casino patron, was driving into the parking lot with her sister, Loren-za Wilson, when they noticed a man lying in a ditch. As Mayo slowed her vehicle to see if the man needed help, a pickup truck drove up, the man in the ditch jumped into the back of the truck, and it sped away. Mayo followed the truck for a short distance, which allowed Wilson to secure the license plate number and call 911 with the pertinent information. The license plate number revealed that the truck was registered to Defendant’s mother. When Mayo stopped following the truck, it had turned onto the road where Defendant’s family lived. When police arrested Defendant approximately two weeks later, he was in possession of $1,840. At trial, Mayo identified Defendant as the truck’s driver.

Defendant was charged with first degree robbery, La.R.S. 14:64.1. Following a jury trial on September 29, 2015, Defendant was found guilty of the responsive verdict of simple robbery, La.R.S. 14:65. On November 5, 2015, the trial court denied Defendant’s motion for a post-verdict judgment of acquittal. On December 3, 2015, Defendant was sentenced to five years in prison at hard labor.

On appeal, and in his sole assignment of error, Defendant contends that the State failed to prove that he was guilty of simple robbery beyond a reasonable doubt.

^DISCUSSION

I. ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

II. ASSIGNMENT OF ERROR

In his only assignment of error, Defendant contends that the State failed to prove beyond a reasonable doubt that he was guilty of simple robbery. The analysis for such claims is as follows:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L,Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant claims that the State’s evidence was insufficient to establish his identity as a principal to the crime. The evidence indicated that Defendant was the getaway driver; the robber was not identified. Principals are defined as: “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” La.R.S. 14:24.

|aThe occurrence of the robbery is not at issue; the contested issue herein is Defendant’s identity as the getaway driver. The State must negate any reasonable probability of misidentification. State v. Draughn, 05-1825 (La. 1/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

Defendant was initially charged with first degree robbery, which is “the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.” La.R.S. 14:64.1(A). Defendant was convicted of the lesser-included offense of simple robbery, which is “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.” La.R.S. 14:65(A).

If Defendant was the getaway driver for the robbery, he was a principal pursuant to La.R.S. 14:24. The evidence establishing Defendant as the getaway driver was Mayo’s trial testimony that Defendant was the same man who drove the getaway truck. Mayo testified that on the day in question, she and her sister, Wilson, were driving up to the casino when they observed a man lying in the ditch. She stated that this took place in the “late evening,” but that “it was light outside.” Detective Tony Andrepont testified that Mayo reported to him that the driver was a “light skinned, black male with short dreads.” On cross-examination, Defendant’s counsel noted a discrepancy between Mayo’s testimony and the police report, which indicated that she had told police she saw a “black male” walk across the parking lot, then dive into the back of the truck. She indicated that portion of the report was not correct. Mayo’s passenger and sister, Wilson, acknowledged that she was “40 percent sure” that Defendant was the man she saw driving the getaway truck. Wilson further testified that she and her sister stopped following the truck when it turned onto Prayer House |4Road, which is the street where, according to the evidence and testimony contained in the record, Defendant and his family lived.

Mayo testified that as they pulled up to see if the man in the ditch was hurt, a pickup truck suddenly appeared, the man in the ditch jumped into the back of it, and the truck sped away. She testified that as the truck sped away, the “owner” of the casino was yelling that a robbery had occurred. Wilson also testified at trial that she saw the “owner” in the parking lot when they returned from chasing the truck.

Mayo and Wilson were referring to Muhammad Iqbal, the casino’s general manager, who testified at trial that on the date in question, Rogers, the cashier, informed him that she had been robbed. Iqbal stated that he witnessed the robber walk out of the east door. According to Iqbal’s testimony, when he exited, he saw someone running through the back of the parking lot. Iqbal revealed that he drove around the parking lot but was unable to find the robber. He testified that he reviewed his security cameras, but the only relevant footage showed the robber walking back and forth outside before the robbery occurred. The record reveals that no videotapes were introduced into evidence. Iqbal testified that about ten minutes following the robbery, Mayo called him with the license plate number of the getaway vehicle. Iqbal indicated that Mayo advised that she had seen the robber and Defendant outside the building at the same time.

Defendant’s father, Dudley Melancon, Sr., testified at trial that on the night of the offense, Defendant told him that if the police showed up at the house, Mr. Melan-con should tell them that Defendant was not at home. Trooper Brady Johnson, a St. Landry Parish deputy at the time of the offense, testified similarly regarding what Defendant’s father told him. However, Trooper Johnson stated that Mr. Melancon said Defendant told him to “tell [the police] the vehicle was stolen.” Mr. Melancon testified that he told Defendant that he would not lie, and Defendant |fileft in a white car. Mr. Melancon stated that he did not know who was driving the white car. On cross-examination, Mr. Melancon indicated that Defendant wanted to pick up an extra set of keys for the truck, but there was only one set of keys.

Defendant’s mother, Jody Taylor, testified that Defendant called her at 6:15 p.m. on the date in question and told her the truck was stolen. She revealed that he tried to say more, but she hung up. Ms. Taylor stated that Defendant called two or three hours later that evening to advise that the truck had been found. She testified that Defendant did not tell her where the truck was until the next day. Ms. Taylor stated that she went to recover the truck and reported said recovery to police. She revealed that the truck was in Lafayette at Defendant’s grandmother’s home.

Defendant denied driving the getaway truck and stated that he was in the Lafayette-Carencro area on December 30, 2013, driving his father’s truck. Defendant testified that a female friend, who he knew only as “Robin,” was staying at a hotel and called him to boirow money. He stated that he drove to the hotel to lend Robin $60, and when he came out, the truck was gone. Defendant testified that he had left it running. Defendant stated that he called his mother, but she hung up on him. He testified that he also called his father, who did not answer the phone. Defendant insisted that he subsequently got a ride home with his friend, Jerimiah Alexandria. He stated that once at home, he informed his father that the truck was stolen and obtained the spare key for the truck. Defendant advised that his friend then gave him a ride back to the area where the truck had been stolen. He revealed that once they returned to the Carenero area, they found the truck; it was locked and undamaged. Defendant indicated that he did not contact police about the stolen truck because he did not trust them. On cross-examination, he stated that he did not want to speak to the police because he was either on parole or probation, although his testimony was unclear on this point.

I ^According to Defendant’s testimony, he called his mother at about 4:45 p.m. to inform her that he had recovered the vehicle. He indicated that later, his mother called him to tell him that police were at the Melancon residence and the truck had been used in a robbery.

The case rested on the jury’s credibility assessment. “It is well-settled that a jury is free to believe some, none, or all of any witness’s testimony.” State v. Perkins, 11-955, p. 10 (La.App. 3 Cir. 3/7/12), 85 So.3d 810, 817. Additionally, “positive identification by only one witness is sufficient to support a conviction.” State v. Neal, 00-674, p. 11 (La. 6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). Although there were discrepancies among the State’s witnesses, such as whether Mayo told police she saw a man walking back and forth in the parking lot and whether she and Wilson spoke directly to Iqbal in the parking lot or called him later, these were matters for the jury.

The jury found Mayo credible and did not find Defendant credible. The license plate showed that the truck belonged to Defendant’s mother, and an eyewitness saw the truck turn onto the road where the Melancons lived. Mayo identified Defendant as the driver of the getaway vehicle, and he does not dispute that the robbery occurred. The amount of money discovered on Defendant was almost the exact amount reported stolen. We conclude that the evidence was sufficient to prove Defendant’s identity as the getaway driver.

However, Defendant argues that there was not a clear, consistent description that established the robber as the man in the ditch who jumped into the truck. He asserted the same argument in his motion for post-verdict judgment of acquittal and at the hearing thereon. Defendant suggests the man in the ditch could have been a drunken individual who obtained a ride in the truck registered to his mother.

|7The cashier, Rogers, described the robber as a dark man “maybe in his 40’s” in a gray sweatshirt with a hood. The customer, Mayo, described the man in the ditch as “short and dark-skinned” and wearing “something black.” Trooper Johnson testified that Rogers reported that the robber was “between 35 and 40,” short, with a thin moustache. Defendant argues this aggregation of descriptions constitutes circumstantial evidence and is thus subject to the dictates of La.R.S. 15:438, which states that: “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

In this matter, there were similarities between the descriptions of the robber and the man who jumped in the truck, i.e., a short, dark-skinned man in his late thirties or forties. In addition, the circumstances indicated not only that a robbery occurred, as Defendant concedes, but also that the man in the ditch was the robber. As Wilson noted, “[ajfter you abruptly see somebody abruptly jump in the back of a vehicle after laying [sic] in the ditch, you say, ‘Oh, they might be robbing the place. Let’s follow them.’ ” Combined with the evidence discussed above, a rational jury could have concluded not only that Defendant was the driver of the truck that sped away from the casino, but also that the man who dove into the back of the truck was the robber. As the getaway driver, Defendant was a principal. Therefore, we affirm Defendant’s conviction.

CONCLUSION

The conviction of Defendant, Dudley Melancon, Jr., of simple robbery is affirmed.

AFFIRMED.