author: WHIPPLE, C.J.

text:
    Russell CHARLES and Consandra Charles v. MOORE PETROLEUM, INC., Power Petroleum, Inc., and Moore Properties, LLC
    2017 CA 0909
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JANUARY 23, 2018 Rehearing Denied February 21, 2018
    Frank Tomeny, III, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellants, Russell Charles and Consandra Charles
    Howard L. Murphy, New Orleans, Louisiana, Counsel for Defendants/Appellees, Moore Petroleum, Inc., Power Petroleum, Inc., and National Fire and Marine Insurance Company
    Brian K. Abels, Maryanna B. Haynes, Denham Springs, Louisiana, Counsel for Intervenors, Hallmark Specialty Insurance
    BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ.
   WHIPPLE, C.J.

Plaintiffs, Russell Charles and Consandra Charles, appeal a judgment of the trial court granting summary judgment in favor of defendants, Moore Petroleum, Inc., Power Petroleum, Inc., and National Fire and Marine Insurance Company, and dismissing with prejudice plaintiffs' claims against these defendants. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On October 25, 2012, Russell Charles was operating a vehicle and pulling a flatbed trailer on Interstate 10 in Iberville Parish when he was struck from behind by a Dodge Ram pick-up truck operated by Mark Moore and owned by Moore Leasing, LLC, a company owned by Moore and his wife, Paulette Moore, and insured by State Farm Mutual Automobile Insurance Company ("State Farm").

On May 2, 2013, Moore signed an affidavit stating that he was not in the course and scope of his employment or on a mission for any party at the time of the October 25, 2012 accident and that the State Farm policy was the only available liability insurance policy that would provide coverage to Russell Charles for his injuries sustained in the automobile accident.

Thereafter, on May 9, 2013, Russell and Consandra Charles signed a release, stating that in consideration of their receipt of fifty-thousand ($50,000.00) dollars, they released all claims against Moore Leasing, LLC, Mark Moore, Paulette Moore, State Farm, and "all other persons, firms or corporations liable or, who might be claimed liable" for the October 25, 2012 accident.

On June 6, 2013, the Charleses filed the instant suit, seeking damages for Russell Charles's injuries sustained in the October 25, 2012 accident and Consandra Charles's loss of consortium, naming as defendants three companies owned by Moore and his wife, namely: Moore Petroleum, Inc., Power Petroleum, Inc., and Moore Properties, LLC. The petition alleged that Moore was in the course and scope of his employment with these corporations at the time of the accident, and thus, these corporations were vicariously liable. By amended petition, the Charleses also named as an additional defendant National Fire and Marine Insurance Company ("National Fire"), as the insurer of Moore Petroleum, Power Petroleum, and/or Moore Properties.

In response to the petition, defendants Moore Petroleum and Power Petroleum raised the affirmative defenses of compromise, settlement, and res judicata , and National Fire pled the affirmative defense of release and discharge on account of compromise and settlement. Thereafter, Moore Petroleum, Power Petroleum, and National Fire filed a motion for summary judgment, seeking a dismissal of the Charleses' claims against them on the grounds that: (1) Mark Moore was not acting in the course and scope of employment for either Moore Petroleum or Power Petroleum at the time of the accident, and (2) the May 9, 2013 release agreement signed by the Charleses precludes any action they had against Moore Petroleum, Power Petroleum, and National Fire as the release was granted in favor of the listed parties and "all other persons, firms or corporations liable or who might be claimed to the liable[.]"

The Charleses opposed the motion for summary judgment, contending that: (1) the defendants did not submit competent and admissible summary judgment evidence, as the affidavits submitted by the defendants in support of the summary judgment were not signed by the affiants and, although defendants sought to substitute the unsigned affidavits, the substitution was untimely; (2) genuine issues of material fact remained as to whether Moore was legally in the course and scope of his employment with Power Petroleum at the time of the accident, as there was other evidence showing that at the time of the accident, Moore was abruptly returning from Alabama and communicating with others about Power Petroleum's ability to respond to the impending Hurricane Sandy disaster; and (3) Moore's prior inconsistent sworn statements and resulting lack of credibility accordingly created genuine issues of fact.

Following argument, the trial court granted the defendants' motion for summary judgment, finding that the release was valid and enforceable, and that as such, the Charleses did not have any right of action against the defendants. Accordingly, on September 14, 2016, the trial court signed a judgment, granting the defendants' motion for summary judgment and dismissing the Charleses' claims against them with prejudice.

The Charleses then filed the instant appeal, assigning the following as error:

(1) A party seeking summary judgment must file its motion, with executed affidavits, as least sixty-five days prior to trial. Because defendants filed the motion for summary judgment sixty-three days prior to trial and attached two non-executed affidavits, the trial court erred in denying the Charleses' motion to strike.
(2) A release which memorializes a transaction and compromise may be rescinded where there exists an error on the matter in dispute or fraud. Because the Charleses executed a release upon Moore's assertion that he was not within the course and scope of his employment-the trial court should not have granted summary judgment on grounds that the release was valid and not subject to material misrepresentation.

DISCUSSION

Rescinding the Release Agreement

For ease of discussion, we first address the merits of the motion for summary judgment and the Charleses' argument that the trial court erred in granting summary judgment because Moore's prior inconsistent statements and resulting lack of credibility create genuine issues of fact as related to the validity of the release and compromise agreement.

A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. LSA-C.C. art. 3071. A compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised. LSA-C.C. art. 3080. A compromise may be rescinded for error, fraud, and other grounds for the annulment of contracts. Nevertheless, a compromise cannot be rescinded on grounds of error of law or lesion. LSA-C.C. art. 3082.

The defense that a suit is barred by a valid written compromise may be raised by an exception of res judicata and tried separately in advance of trial on the merits. The plaintiffs against whose action the exception is directed may introduce evidence of a defense to the compromise agreement without the necessity of filing replicatory pleadings or a prior independent action to annul the compromise. Smith v. Leger, 439 So.2d 1203, 1205 (La. App. 1st Cir. 1983). Moreover, a motion for summary judgment can be granted based on a finding of res judicata when there is no genuine issue as to any material fact. Brown v. Drillers, Inc., 630 So.2d 741, 747, n. 7 (La. 1994).

An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo , using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750. While summary judgments are now favored, a motion for summary judgment shall be granted only if the motion, memorandum, and supporting documents show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(3).

Here, in opposition to the defendant's motion for summary judgment, the Charleses submitted, inter alia , Moore's May 2, 2013 affidavit, signed prior to the execution of the release and settlement agreement, wherein Moore stated that he "had no other liability insurance ... which would provide insurance benefits to Russell Charles for damages sustained as a result of the collision" and, further "[t]hat [he] was not in the course and scope of any employment, nor ... on a mission for any party at the time of the accident[.]" (Emphasis added.) The Charleses also submitted excerpts from Moore's November 20, 2013 deposition, wherein Moore stated that at the time of the accident, he was returning from a purely personal trip to Montgomery, Alabama, to see his elderly aunt, and a subsequent conflicting email from Moore's attorney, stating that after Moore reviewed records produced in response to a request for production of documents, he "realized" that he was in Mobile, Alabama, not Montgomery, Alabama, and that he made the trip to Mobile for Moore Leasing for the purpose of locating rollback trucks in connection with a contract for the U.S. Army Corps of Engineers.

This evidence undisputedly establishes that Moore originally stated that he was not in the course and scope of employment of anyone at the time of the accident, when in fact, by his own admission, he was within the course and scope of his employment for Moore Leasing. The Charleses contend that they executed the release and settlement agreement based upon Moore's statement regarding his scope and course of employment, only for Moore to change his testimony after the release was signed. The Charleses argue that, therefore, summary judgment was inappropriate as Moore's misleading statements were ostensibly fraudulent and issues of material fact remain as to his intent in making these false statements and the extent upon which the Charleses relied upon these statements in signing the release and settlement agreement. They essentially argue that the evidence presented casts doubt on Moore's credibility and precludes the granting of summary judgment in the defendants' favor.

As the Charleses note, fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence. LSA-C.C. art. 1957 ; Wade v. Marine Services of Acadiana, LLC, 2008-2144 (La. App. 1st Cir. 8/6/09), 2009 WL 2413663 at *3 (unpublished opinion), writ denied, 09-2833 (La. 3/5/10), 28 So.3d 1011, cert. denied, 562 U.S. 868, 131 S.Ct. 163, 178 L.Ed.2d 97 (2010). Circumstantial evidence, including highly suspicious facts and circumstances surrounding a transaction, may be considered in determining whether fraud has been committed. Ackel v. Ackel, 2005-2230 (La. App. 1st Cir. 6/20/07), 2007 WL 1765561 at *8 (unpublished opinion). Applying these precepts, we agree that Moore's changing and inconsistent statements regarding the crucial issue of whether and on whose behalf he was acting at the time of the accident and whether he was in the course and scope of his employment constitutes evidence from which fraud or error could be inferred. Cf. Florida Parishes Juvenile Justice Commission by and on behalf of the Florida Parishes Juvenile Justice Dist. v. Hannis T. Bourgeois, L.L.P., 2015-1287 (La. App. 1st Cir. 9/27/16), 2016 WL 5402110 at *6 (unpublished opinion).

Moore's intent and motive in making conflicting statements as to the course and scope of his employment and his knowledge as to being within course and scope of his employment (of any of his respective companies) at the time of the accident are the crux of the Charleses' fraud and error claim as to the validity of the compromise and release agreement. Summary judgment is seldom appropriate for determinations based on subjective facts of intent, motive, malice, good faith, or knowledge. Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So.2d 1002, 1006. Accordingly, "[t]here are simply too many genuine issues of subjective intent and motive raised by the unique and unconventional circumstances [of this case] for summary judgment to be appropriate here." Ackel, 2007 WL 1765561 at *12. Although the evidence put forth by the Charleses may be insufficient proof of error or fraud at trial on the merits, it is sufficient to defeat summary judgment.

In sum, we agree with the Charleses that Moore's differing explanations of his whereabouts places his credibility at issue and renders suspect any explanation he may now offer as to where he was, what he was doing, and for whom he was conducting business before the accident. At a minimum, they raise genuine issues of material fact as to whether true and correct information was withheld from the Charleses when the release was obtained. For these reasons, we find that the trial court erred in granting summary judgment and dismissing the Charleses's claims against these defendants with prejudice on the basis of the May 9, 2013 release and compromise agreement.

CONCLUSION

For the above and foregoing reasons, the September 14, 2016 judgment of the trial court, granting summary judgment in favor of the defendants and dismissing the claims of Russell Charles and Consandra Charles with prejudice, is hereby reversed. Costs of this appeal are assessed against defendants, Moore Petroleum, Power Petroleum, and National Fire.

REVERSED.

      In consideration of the receipt of $100,000.00, the Charleses also settled with their uninsured/underinsured motorist insurer.

      Plaintiffs voluntarily dismissed all claims against Moore Properties on May 13, 2014.

      A party should not be precluded by the language of a compromise agreement from pursuing allegations of fraud unknown at the time of the signing of the agreement. Rumore v. Wamstad, 99-557 (La. App. 5th Cir. 2/8/00), 751 So.2d 452, 455-456.

      Accordingly, we pretermit discussion of the Charleses' remaining assignment of error related to the timeliness of the motion for summary judgment and the admissibility of the affidavits submitted by the defendants in support of the motion for summary judgment.


source: Caselaw Access Project

author: CHUTZ, J.

license: Public Domain

text:
    Richard JEANSONNE, Jr., M.D. v. Ferdinand BONANO
    2017 CA 0828
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: JANUARY 23, 2018
    Michael E. Holoway, Folsom, Louisiana, Counsel for Plaintiff-Appellant, Richard Jeansonne, Jr., M.D.
    Elisabeth Wolfe Ramirez, Covington, Louisiana, Counsel for Defendant-Appellee, Ferdinand Bonano
    BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
   CHUTZ, J.

Plaintiff-appellant, Dr. Richard Jeansonne, Jr., appeals the trial court's judgment, which sustained peremptory exceptions raising objections of no cause of action and prescription and dismissed claims of malicious prosecution and defamation against defendant-appellee, Ferdinand Bonano. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After the death of his wife while she was hospitalized, Mr. Bonano, in proper person, requested the formation of a medical review panel (MRP), on May 8, 2012, naming Dr. Jeansonne, among other medical health care providers, as a defendant. In response to a request for specific allegations of negligence elicited by the Louisiana Patient's Compensation Fund, Mr. Bonano stated the following:

Elaine Bonano was seen by Dr. Jeansonne after being admitted through the ER. He then agreed with the UTI diagnosis and began the treatment for the infection. She was then sent home after a short stay with oral medications. Within a day or two Elaine returned to the ER and again was admitted. Mr. Bonano was told that Elaine's doctors no longer came to [the hospital]. Therefore ... [another doctor] ... was called in and properly diagnosed Elaine with kidney infection not UTI. Mr. Bonano feels that the missed diagnosis was the beginning of the end.

A MRP was convened and met by telephone conference on December 3, 2013. The MPR unanimously concluded that Dr. Jeansonne had appropriately treated Mrs. Bonano when he had last seen her and that Dr. Jeansonne had not seen Mrs. Bonano during her final admission to the hospital.

Although Mr. Bonano did not institute a medical malpractice lawsuit, Dr. Jeansonne subsequently filed a petition for damages alleging malicious prosecution and defamation claims on January 7, 2015. According to Dr. Jeansonne, "[u]pon information and belief, Mr. Bonano knew Dr. Jeansonne could not have been responsible for Mrs. Bonano's death, and he had no evidence to support or even suggest such a claim when he requested the formation of the [MRP]."

Mr. Bonano filed an answer to Dr. Jeansonne's lawsuit in proper person, generally denying the allegations against him. After he obtained legal counsel, Mr. Bonano filed peremptory exceptions objecting on the basis of no cause of action and prescription. After a hearing, the trial court sustained an exception of no cause of action as to Dr. Jeansonne's malicious prosecution claim and an exception of prescription as to the defamation claim. Expressly concluding that an amendment to Dr. Jeansonne's petition would not cure the deficiency in the malicious prosecution claim, the trial court dismissed the lawsuit. Dr. Jeansonne appeals.

NO CAUSE OF ACTION

The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Robinson v. Papania, 2015-1354 (La. App. 1st Cir. 10/31/16), 207 So.3d 566, 572, writ denied, 2016-2113 (La. 3/13/17), 216 So.3d 808.

On appeal, Dr. Jeansonne asserts the trial court erred in its conclusion that the convening of the MRP at Mr. Bonano's request, in proper person, was insufficient to state a cause of action in malicious prosecution where the MRP determined that Dr. Jeansonne had not failed to meet the applicable standard of care. Although Mr. Bonano did not pursue litigation after the unfavorable MRP determination, Dr. Jeansonne nevertheless maintains that the MRP's conclusion was tantamount to a bona fide resolution in his favor which is sufficient to support a claim for malicious prosecution.

The trial court correctly determined that to prevail in an action for malicious prosecution, a plaintiff must prove: (1) the commencement or continuance of an original criminal or civil proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; (6) damage conforming to legal standards resulting to plaintiff. Lemoine v. Wolfe, 2014-1546 (La. 3/17/15), 168 So.3d 362, 367 (citing Jones v. Soileau, 448 So.2d 1268, 1271 (La. 1984) ).

Thereafter, the trial court reviewed the following law:

In determining whether plaintiff has asserted a cause of action, the Court finds it necessary to examine the purpose behind the enactment of Louisiana's Medical Malpractice Act ("MMA").[ ] In response to a perceived crisis in this state caused by prohibitive costs in connection with medical malpractice insurance, our Legislature enacted the MMA in 1975, with the intended purposes of reducing or stabilizing medical malpractice insurance rates and ensuring the availability of affordable medical services to the general public. McGlo t hlin v. Christus St. Patrick Hosp., 10-2775, p. 4 (La. 7/1/11), 65 So.3d 1218, 1225. In order to achieve these ends, the MMA provided qualified health care providers with a number of advantages in derogation of the general rights of tort victims. [See] Galloway v. Baton Rouge General Hosp., 602 So.2d 1003, 1005-06 (La. 1992) ; Everett v. Goldman, 359 So.2d 1256, 1262-63 (La. 1978). The legislative goals of the MMA are to encourage prompt settlement of good claims[,] the abandonment of poor claims and, most importantly, the fostering of prompt, professional medical services to the people of Louisiana. Derouen v. Kolb, 397 So.2d 791, [795] (La. 1981).
One of the principal advantages provided to qualified health care providers is that no action for malpractice against them or their insurers can be commenced in any court prior to submission of the complaint to a [MRP], composed of three health care providers and one attorney, and the panel's issuance of its expert opinion. [ La. R.S. 40:1299.47(B)(1)(a) [ (i) ] ;[ ] McGlothlin, 65 So.3d at [1225]. The purpose of a [MRP] is to screen and filter claims in a "non-judicial setting" in hopes of weeding out any meritless claims without the delay or expense of a court trial. [See] Everett, 359 So.2d at 1264 ;
[see also] Perritt v. Dona, [2002-2601] (La. 7/2/03), 849 So.2d 56, 67 [ (Weimer, J., concurring) ].
Under this scheme, the sole duty of the [MRP] is to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant acted or failed to act within appropriate standards of care. La. R.S. 40:1299.47(G) ; McGlothlin, 65 So.3d at 1226. Any report of the medical review panel's expert opinion "shall be admissible as evidence in any action subsequently brought by the claimant in a court of law." La. R.S. 40:1299.47(H). However, such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the [MRP] as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions, and conclusions made in the course and scope of his duties pursuant to serving on a [MRP]. [ La. R.S. 40:1299.47(H).] The opinion is equivalent to expert medical evidence. McGlothlin, 65 So.3d at [1227]. Further, the panel makes no findings as to damages, and their conclusions are not binding. [ Derouen, 397 So.2d at 794 ].
The Court in Derouen noted that where "a judge has the power to decide the facts and law of a case and to render a final adjudication as to the rights of the parties involved, no such power exists for the [MRP]. The panel simply renders an expert opinion and does not have the power to adjudicate the rights of any party." Derouen, 397 So.2d at 794. A [MRP] is not a judge or a jury but merely a body of experts assembled to evaluate a medical claim and to provide an expert opinion. Derouen, 397 So.2d at [794-95].

In light of the jurisprudence, the trial court made the following determination:

As to the malicious prosecution claim, the Court concludes that a [MRP] is not a "civil judicial proceeding" nor does the rendition of an opinion by the [MRP], which has no dispositive effect, satisfy the requirement that there is a bona fide termination of the civil judicial proceeding in favor of plaintiff. To find that there is a cause of action for malicious prosecution arising out of a [MRP] proceeding would run contrary to one of the main purposes of the [MRP], which is to screen and filter meritless claims prior to the filing of an actual [lawsuit]. The Court notes that in this matter, Mr. Bonano did not file a medical malpractice [lawsuit] against Dr. Jeansonne.

Mindful that this court conducts a de novo review of a trial court's ruling sustaining an exception of no cause of action because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition, see Robinson, 207 So.3d at 572, we find no error. And because the grounds of the objection of no cause of action as to Dr. Jeansonne's malicious prosecution claim cannot be removed by amendment, the trial court correctly dismissed this claim. See La. C.C.P. art. 934 (providing that if the grounds of the objection raised through the exception cannot be removed by an amendment, the petition shall be dismissed).

PRESCRIPTION

Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. C.C. art. 3447. Statutes regulating prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished. Benson v. State, Dep't of Revenue, 2017-0081 (La. App. 1st Cir. 9/15/17), 227 So.3d 847, 849.

The prescriptive period for defamation is one year. See Clark v. Wilcox, 2004-2254 (La. App. 1st Cir. 12/22/05), 928 So.2d 104, 112, writ denied, 2006-0185 (La 6/2/06), 929 So.2d 1252. And it is a plaintiff's knowledge of the damage-causing publication that commences the accrual of prescription. Id. (noting this court's determinations in Wiggins v. Creary, 475 So.2d 780, 781 (La. App. 1st Cir.), writ denied, 478 So.2d 910 (La. 1985) and Rice v. Felterman, 2000-2525 (La. App. 1st Cir. 3/28/02), 814 So.2d 696 ).

According to the trial court's review of the evidence in its written reasons for judgment:

Guy Leland, the [MRP] attorney chairman, testified at the hearing on the exceptions as follows: The [MRP] hearing was conducted by telephone conference on December 3, 2013, during which all doctors on the [MRP] participated at the same time. After consulting with one another by telephone, the [MRP] doctors reached their conclusion on December 3, 2013 that Dr. Jeansonne did not breach the applicable standard of care. The panel [members] dictated their opinion and the reasons for their opinion to Guy Leland on December 3, 2013. Counsel for each of the defendant physicians [were] given the opportunity on December 3, 2013 to ask the [MRP] doctors questions regarding their opinion and the reasons for their opinion. Each of the parties, through their legal counsel, [was] notified of the conclusions and opinion and reasons of the [MRP's]
determination on December 3, 2013. The opinion was read and emailed to counsel for each party, including counsel for Dr. Jeansonne on December 3, 2013.
Since the panel did not meet in person, the typewritten, unsigned Opinion and Reasons had to be circulated by mail for the various doctors' signatures as required by [ La. R.S 40:1299.47(A)(2)(a) ]. A letter dated January 13, 2014 was sent from Guy Leland to Ken Schnauder, Executive Director of the Louisiana Patient's Compensation Fund, informing him that the [MRP] had met on December 3, 2013 and decided the issues presented, enclosing the signed opinion and reasons of the panel. Counsel for all the defendant doctors, as well as Mr. Bonano personally, were sent a copy of this letter and the signed opinion and reasons of the panel by certified mail as required by law. A letter dated January 20, 2014 from Guy Leland was mailed to all counsel, including the attorney for Dr. Jeansonne, Mr. Aldric Poirier, Jr" and to Mr. Bonano, in proper person, with copies attached of the return receipt cards indicating the dates counsel for each party and Mr. Bonano, in proper person, received a copy of the signed opinion and reasons of the [MRP] by certified mail. The attachments showed that counsel for Dr. Jeansonne, Mr. Poirier, received the signed opinion and reasons by certified mail on January 14, 2014, and Mr. Bonano received the signed opinion and reasons by certified mail on January 16, 2014.
Mr. Leland testified [that] after the hearing on December 3, 2013 there was no other discussion of the case by the [MRP]. Leland noted that according to his records, the final letters in the matter were mailed on February 19, 2014, and the file was closed. He also opined that pursuant to the [MMA], Mr. Bonano would have had ninety days from January 16, 2014 ... to file a [lawsuit] in the district court for medical malpractice in this matter. [Footnotes omitted.]

In Dr. Jeansonne's challenge of the trial court's finding that December 3, 2013, when the MRP made its ruling at the telephone conference, was the date that prescription commenced to accrue on his defamation claim, he does not dispute the timeline of the MRP's actions or that he had knowledge of the damage-causing publication no later than December 3, 2013. Instead, relying on jurisprudence that holds an action for defamation arising out of allegations made in a judicial proceeding and against a party to that proceeding cannot be brought until the proceeding is terminated, Dr. Jeansonne suggests that, similarly, he should not be required to file the defamation lawsuit until termination of the MRP proceeding, which he avers is ninety days after the claimant received the MRP's final decision as required under the Louisiana Medical Malpractice Act. Thus, Dr. Jeansonne contends that, as a matter of law, prescription on the defamation claim did not begin to accrue until April 16, 2014, when Mr. Bonano's right to file a medical malpractice claim terminated. Alternatively, Dr. Jeansonne maintains that, as a matter of law, January 16, 2014, the date that the record indisputably establishes Mr. Bonano received the MRP's written opinion and reasons by certified mail as required by the Medical Malpractice Act, was when the MRP's decision was finalized and, therefore, the accrual of prescription on his defamation claim commenced. Since Dr. Jeansonne filed his lawsuit on January 7, 2015, he asserts that commencement of accrual on either April 16, 2014 or January 16, 2014 demonstrates that his claim is timely.

Although evidence may be introduced to support or controvert the exception of prescription when the grounds thereof do not appear from the petition, see La. C.C.P. art. 931 and Benson, 227 So.3d at 849, given that Dr. Jeansonne does not dispute the timeline of the MRP's action, his assertion raises a question of law. As such, we apply the de novo standard of review. See State by & through Caldwell v. Fournier Industrie et Sante & Labs. Fournier, S.A. , 2015-1353 (La. App. 1st Cir. 12/22/16), 208 So.3d 1081, 1084.

In response to Dr. Jeansonne's legal contention, the trial court reasoned:

The purpose underlying [the requirement of termination of the judicial proceeding in which the alleged defamation arose] is to allow the party making the allegations "an opportunity to prove the truth of the allegations" in the suit in which they were made, [since] the truth or falsity of the words are at the heart of a defamation action. [ Clark, 928 So.2d at 111-12 ]; Ballex v. Naccari, 95-0057 (La. App. 4th Cir. 6/7/95), 657 So.2d 511, 512....
This Court is able to distinguish the instant case.... As previously pointed out, one of the purposes of a [MRP] is to provide for the screening and filtering of complaints in a non-judicial setting, with the panel rendering a non-conclusive expert opinion. Since a [MRP] does not have the power to adjudicate claims, the conclusions and opinion of the panel do not prove or disprove the allegations in the complaint as a matter of law, as is the case in a regular judicial proceeding or even an administrative hearing that provides the party aggrieved by the decision appeal rights to the district court. Therefore, the Court finds in this [matter] ... there is no requirement that an action for defamation arising out of allegations made in a [MRP cannot] be brought until the [MRP] is terminated. Instead, prescription begins to run when the plaintiff has knowledge of the allegedly defamatory publication.

On de novo review, we find no error in the trial court's rationale. And since Dr. Jeansonne had knowledge of the damage-causing publication no later than December 3, 2013, the trial court correctly sustained the exception of prescription and dismissed Dr. Jeansonne's defamation claim.

DECREE

Accordingly, we affirm the trial court's judgment, dismissing Dr. Jeansonne's claims against Mr. Bonano. Appeal costs are assessed against Dr. Richard Jeansonne, Jr.

AFFIRMED.

      See La. R.S. 40:1299.44 re-designated as La. R.S. 40:1231.4 by La. H.C.R. No. 84 of the 2015 Regular Session.

      See La. R.S. 40:1231.1. et seq.

      By La. H.C.R. No. 84 of the 2015 Regular Session, La. R.S. 40:1299.47 was re-designated as La. R.S. 40:1231.8.

      See e.g., Loew's, Inc. v. Don George, Inc., 237 La. 132, 110 So.2d 553, 561 (1959) ; Nolan v. Jefferson Parish Hosp. Serv. Dist. No 2, 2001-0175 (La. App. 5th Cir. 6/27/01), 790 So.2d 725, 730 ; Ballex v. Naccari, 95-0057 (La. App. 4th Cir. 6/7/95), 657 So.2d 511, 512 ; Grant v. Politz, 575 So.2d 915, 917 (La. App. 2d Cir. 1991) ; Thomas v. Mobley, 118 So.2d 476, 483 (La. App. 1st Cir.1960) ; Union Serv. & Maint. Co., Inc. v. Powell, 393 So.2d 94, 99 (La. 1980) (Watson, J., concurring), as this court noted in Simpson v. Perry, 2003-0116 (La. App. 1st Cir. 7/14/04), 887 So.2d 14, 16.

      Specifically, La. R.S. 40:1299.47(L), re-designated as La. R.S. 40:1231.8(L) by La. H.C.R. No. 84 of the 2015 Regular Session, states, "Where the [MRP] issues its opinion required by this Section, the suspension of the running of prescription [on claimant's medical malpractice claim] shall not cease until ninety days following notification by certified mail to the claimant or his attorney of the issuance of the opinion as required by Subsection J of this Section." And Subsection (J) provides in relevant part, "The chairman shall submit a copy of the panel's report to ... all parties and attorneys by registered or certified mail within five days after the panel renders its opinion."

      See La. R.S. 40:1299.47(J), re-designated as La. R.S. 40:1231.8(J) by La. H.C.R. No. 84 of the 2015 Regular Session.


text:
    Eric LOWE v. The PARISH OF ST. TAMMANY d/b/a St. Tammany Parish Government, Patricia P. Brister, in her Official Capacity as Parish President and the Custodian of Records for St. Tammany Parish d/b/a St. Tammany Parish Government and Sidney Fontenot, in his Official Capacity as Director of Planning and Development for St. Tammany Parish Government
    2017 CA 0783
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: JANUARY 23, 2018
    Leonard L. Levenson, Christian W. Helmke, Colleen Boyle Gannon, Donna R. Barrios, New Orleans, Louisiana, Counsel for Plaintiff-Appellant, Eric Lowe
    Deborah Spiess Henton, Kelly M. Rabalais, Angel L. Byrum, Covington, Louisiana, Counsel for Defendants-Appellees, The Parish of St. Tammany d/b/a St. Tammany Parish Government, Patricia P. Brister, in her official capacity as Parish President and the Custodian of Records for St. Tammany Parish d/b/a St. Tammany Parish Government and Sidney Fontenot, in his official capacity as Director of Planning and Development for St. Tammany Parish Government
    BEFORE: WHIPPLE, C.J., McDONALD AND CHUTZ, JJ.
   CHUTZ, J.

Plaintiff-appellant, Eric Lowe, appeals the trial court's judgment denying him attorney fees subsequent to his request for withheld and redacted documents by defendants-appellees, the Parish of St. Tammany, its president, Patricia P. Brister, and its Director of Planning and Development, Sidney Fontenot (collectively "the Parish"). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Lowe made a public records request (PRR) to the Parish seeking "[t]he entire file, or files, pertaining to code enforcement case CE9532 (108 Churchill Downs Dr.) to include the application for a home office permit." Lowe additionally requested "any and all emails, letters, memos, and faxes, internal and external, regarding these files, applications, investigations, or anything regarding this matter." The following day, the Parish responded to Lowe's PRR by letter advising that, while it had begun the process of retrieving the requested documents, it would avail itself of any statutory provision which either exempted or prohibited production of documents as well as the attorney-client privilege.

The Parish subsequently advised Lowe that it had located 819 pages and three videos responsive to his PRR. The Parish also informed Lowe that 17 pages were redacted "for privileged inter-Parish Government correspondence that included a Parish attorney or attorneys and/or the personal information of private citizens"; and that 34 pages "that were designated as privileged inter-Parish Government correspondence that included a Parish attorney or attorneys" would not be produced.

Lowe then sent a letter to the Parish requesting it produce a Privilege Log regarding any and all documents and/or portions of documents that were withheld due to a privilege. The Parish responded that it did "not know of any legal provision that would compel [it] to produce a privilege log relating to a [PRR]."

On January 14, 2016, Lowe filed a petition for a writ of mandamus, declaratory judgment, attorney fees, penalties, costs, and damages. He specifically requested issuance of a writ of mandamus ordering that, relative to the 34 withheld documents, the Parish produce: a privilege log; and/or, alternatively, the documents "with the most limited redactions possible while preserving the alleged privilege"; and/or the allegedly privileged documents for an in camera inspection. Lowe also requested that, subsequent to his requested production of documents and/or in camera inspection, the trial court issue a declaratory judgment declaring whether the 34 documents withheld by the Parish were public records subject to disclosure. The Parish subsequently filed a peremptory exception raising the objection of no cause of action averring that it was not required to create and produce a privilege log.

A hearing was held on March 9, 2016, on both the exception of no cause of action and the public record claims Lowe raised in his petition. The trial court determined it would conduct an in camera inspection, and it directed the Parish to produce the redacted and withheld documents, taking the matter under advisement. After issuing detailed written reasons for judgment, on April 13, 2016, the trial court signed a judgment, overruling the exception of no cause of action and granting the writ of mandamus, ordering the Parish "to produce the public records at issue that were withheld from [Lowe], excepting therefrom any personal information of private citizens, pursuant to a mutual protective order." Neither Lowe nor the Parish filed motions for new trial or appealed the April 13, 2016 judgment.

On October 31, 2016, Lowe filed motion for attorney fees, penalties, costs, and damages. A hearing was held and on February 7, 2017, the trial court signed a judgment denying Lowe's request for attorney fees, penalties, statutory costs, and damages, but granting his request for court costs. Lowe appeals asserting that the trial court erred in not awarding him attorney fees since he had prevailed in the litigation.

SUBJECT MATTER JURISDICTION

While the appeal was pending in this court, the Parish filed a declinatory exception raising an objection of a lack of subject matter jurisdiction. The Parish urges the trial court was without jurisdiction to hear the motion for attorney fees. Consequently, before addressing the merits of Lowe's appeal, we must determine whether the trial court had subject matter jurisdiction. If it did not, then this court likewise lacks jurisdiction, except to vacate the trial court's judgment to correct the error in entertaining the motion. See Acadian Properties Northshore, L.L.C. v. Fitzmorris, 2017-0424 (La. App. 1st Cir. 11/1/17), 234 So.3d 927, ----, 2017 WL 4974603.

The gist of the Parish's contention challenging subject matter jurisdiction is that the trial court's failure to award attorney fees in the April 13, 2016 judgment that ordered issuance of the writ of mandamus constituted a rejection of Lowe's claim. Because Lowe neither filed a motion for new trial nor appealed the April 13, 2016 judgment the Parish maintains that Lowe's motion for attorney fees, filed over six months after issuance of the mandamus on October 31, 2016, was an attempt to substantively amend a final and definitive judgment.

While silence in a judgment is deemed to be a rejection of the claim, this principle does not apply where the issue or claim was not then before the court for its consideration. Louisiana Workers' Comp. Corp. v. Sims, 2014-1378 (La. App. 1st Cir. 4/24/15), 2015 WL 1882608, *2. Here, the record shows that in setting Lowe's public record claims for a hearing, the scope of Lowe's public record claims included requests for a writ of mandamus or, alternatively, an in camerainspection, and declaratory relief. The trial court's order stated that the issue of whether the Parish should be cast with, among other things, attorney fees was to be addressed "in due course." Based on our review of the transcript from the hearing in which the trial court determined it would conduct an in camera inspection of the redacted and withheld documents and took the pending matters under advisement, we agree with the trial court that Lowe's entitlement to attorney fees was not then before it. See Louisiana Workers' Comp. Corp., 2015 WL 1882608 at *2. If the order applied for by written motion is one which requires supporting proof, the motion shall be tried contradictorily with the adverse party. La. C.C.P. art. 963. Since the order awarding attorney fees required Lowe to produce evidence of his right to relief, he correctly applied for it by written motion. And the January 19, 2017 hearing on that motion, conducted in accordance with the provisions of La. C.C.P. art. 963, was proper. Accordingly, we deny the relief sought by the Parish in its exception objecting on the basis of a lack of subject matter jurisdiction.

ATTORNEY FEES

La. R.S 44:31B(1) provides "any person of the age of majority may inspect, copy, or reproduce any public record." La. R.S. 44:32A further provides, in part, "[t]he custodian shall present any public record to any person of the age of majority who so requests." The enforcement provision under the Public Records Law is provided in La. R.S. 44:35, which provides in pertinent part:

A. Any person who has been denied the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record under the provisions of [the Public Records Law], either by a determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his in-person, written, or electronic request without receiving a determination in writing by the custodian or an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located....
D. If a person seeking the right to inspect, copy, or reproduce a record or to receive or obtain a copy or reproduction of a public record prevails in such suit, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney fees or an appropriate portion thereof.

Once a record requester prevails in a suit under the Louisiana Public Records Law, La. R.S. 44:35 mandates an award of reasonable attorney fees. The statute further states that if the record requester is partially successful in its suit the court has discretion to award reasonable attorney fees. La. R.S. 44:35D; Aswell v. Div. of Admin., State, 2015-1851 (La. App. 1st Cir. 6/3/16), 196 So.3d 90, 95, writ denied, 2016-1263 (La. 11/7/16), 209 So.3d 102.

In this case, the trial court ultimately issued a writ of mandamus ordering the Parish "to produce the public records at issue that were withheld from [Lowe], excepting therefrom any personal information of private citizens, pursuant to a mutual protective order." Lowe asserts, and the record confirms, that during the March 9, 2016 hearing, he orally modified his request to exclude private citizens' personal information. Having obtained the withheld documents, Lowe contends he prevailed in his suit and, under La. R.S. 44:35D, the trial court was mandated to award him reasonable attorney fees.

In his petition, in addition to his demands for the writ of mandamus, the alternative requests of an in camera inspection and production of a privilege log, and subsequent declaratory relief, Lowe sought not only attorney fees but both civil and criminal penalties, statutory costs, and damages. Although the trial court conducted the in camera inspection and granted the writ of mandamus, directing the Parish to produce the withheld records, in addition to not reaching the issue of Lowe's entitlement to a declaratory judgment, it denied Lowe the additional pleaded requests for penalties, statutory costs, and damages. Thus, Lowe prevailed only in part in this public records lawsuit. See and compare Thibodeaux v. Field, 2009-0241 (La. App. 1st Cir. 7/27/09), 2009 WL 2225443, *3 (because public record requester's claims for injunctive and mandamus relief were rendered moot when the custodian fulfilled the request before the demands for relief were heard, public record requester prevailed only "in part" in his suit and could seek only a discretionary award of "reasonable attorney fees or an appropriate portion thereof").

Although the trial court granted the requested mandamus relief and ordered the production of documents, Lowe prevailed only in part as his other demands considered by the court were denied. Accordingly, we cannot say that the trial court's decision to award no discretionary attorney fees was an abuse of its discretion. See Rowley v. Buell, 552 So.2d 686, 687 (La. App. 1st Cir. 1989) (per curiam), rev'd in part on other grounds, 556 So.2d 50 (La. 1990) ; see also Lewis v. Spurney, 456 So.2d 206, 208 (La. App. 4th Cir.), writs denied, 457 So.2d 1183, 458 So.2d 488 (La. 1984) (after reversal of trial court's dismissal of public record requester's demand for records, appellate court declined to award discretionary attorney fees since custodian's resistance was in good faith). We find no abuse of discretion by the trial court in denying Lowe's request for attorney fees.

DECREE

For these reasons, we deny the Parish's exception objecting on the basis of a lack of subject matter jurisdiction. The trial court's February 7, 2017 judgment is affirmed. Appeal costs are assessed against plaintiff-appellant, Eric Lowe.

EXCEPTION DENIED; JUDGMENT AFFIRMED.

      Although the trial court's judgment did not express costs in a dollar amount as required by La. R.S. 13:5112A, since that portion of the judgment which awarded court costs to Lowe was not appealed by any party, the defect is not before us in this appeal.

      An appeal can be dismissed at any time for lack of jurisdiction of the appellate court or because there is no right to appeal. La. C.C.P. art. 2162.

      See La. R.S. 44:35E (providing for civil penalties not to exceed one hundred dollars per day exclusive of Saturdays, Sundays, and legal public holidays for each day the custodian unreasonably or arbitrarily fails to respond to the public record requester) and La. R.S. 44:37 (stating that anyone convicted of a violation of the Public Records Law shall be fined between $100 and $1,000 or imprisoned between one and six months for a first conviction; and fined between $250 and $2,000 and/or imprisoned between two and six months for any subsequent conviction).

      Because he was unsuccessful in this appeal, Lowe is not entitled to an additional award of attorney fees. See Angelo Iafrate Const., L.L.C. v. State ex rel. Dep't of Transp. & Dev., 2003-0892 (La. App. 1st Cir. 5/14/04), 879 So.2d 250, 255, writ denied sub nom., Angelo Lafrate Const . , L.L.C. v. State ex rel. Dep't of Transp. & Dev., 2004-1442 (La. 9/24/04), 882 So.2d 1131 (if the party requesting enforcement of the Public Records Law is required to appeal the action of the trial court, that party, if successful, is entitled to an award of additional attorney fees for prosecuting the appeal).


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    PLAQUEMINES PARISH CIVIL SERVICE COMMISSION, and Civil Service Director Ellen Barrois v. PLAQUEMINES PARISH COUNCIL and Plaquemines Parish Government
    NO. 2017-CA-0449
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 14, 2018
    VICTOR L. PAPAI, JR., ATTORNEY AT LAW, 6056 Prytania Street, New Orleans, Louisiana 70118, Counsel for Plaintiffs/Appellants
    DANNIE P. GARRETT III, ATTORNEY AT LAW, LLC, 635 Main Street, Baton Rouge, Louisiana 70801, and MELVIN J. BURMASTER, ASSISTANT PARISH ATTORNEY, PLAQUEMINES PARISH GOVERNMENT, 8056 Highway 23, 2nd Floor, Belle Chasse, Louisiana 70037, Counsel for Defendants/Appellees
    (Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Roland L. Belsome )
   JAMES F. MCKAY III, CHIEF JUDGE

The Plaquemines Parish Department of Civil Service, the Plaquemines Parish Civil Service Commission and Director Ellen Barrios ("Appellants"), appeal the trial court's January 9, 2017 judgment denying their petition for injunctive relief and finding that the Plaquemines Parish Council Ordinance 15-107, adopted in accordance with the Charter for Local Self-Government for Plaquemines Parish ("Charter") § 5.03, did not impair the Civil Service's Department's effective and efficient operation in violation of Louisiana Constitution, Art. X § 13 (B) and was constitutionally valid. Finding no error in the trial court's judgment, we affirm.

On September 9, 2015, the Plaquemines Parish Civil Service Commission ("the Commission") and its director, Ellen Barrios, brought a verified petition for a temporary restraining order and application for preliminary injunction. In that petition, they prayed for the trial court to issue the temporary restraining order enjoining the Plaquemines Parish Government from closing the Commission's office located at 333 F. Edward Herbert Boulevard, Building 600, in Belle Chasse, to be followed by a preliminary injunction ordering same. On September 10, 2015, the court denied the temporary restraining order prayed for by the Appellants on grounds that they had failed to sufficiently show irreparable injury, loss, or damages. The Plaquemine Parish Council (Council") subsequently intervened as a defendant in this matter becoming defendant-in-intervention. On September 14, 2015, the appellants filed an amended petition alleging that the Council had unconstitutionally overreached its authority under § 5.03 of the Charter by adopting Ordinance 15-107 which ordered the appellants to relocate its offices to 8028 Highway 23, Port Sulphur, Louisiana.

On February 18, 2016, the trial court denied a Dilatory Exception of Lack of Procedural Capacity brought by the Commission and its director against the Council. In that same Judgment, the trial court also denied a Dilatory Exception of Lack of Procedural Capacity and/or Peremptory Exception of No Right of Action brought by the Council, against the appellants. After being apprised of the pending proceedings, on September 27, 2016, the Louisiana Attorney General's Office waived its presence at trial by a Waiver of Service, pursuant to La. C.C.P. art. 1880.

On October 27 and 28, 2016, a trial on the merits was held concerning the appellants' verified petition for temporary restraining order, and the application for preliminary injunction. The Civil Service Department, by seeking injunctive relief vis-a-vis the temporary restraining order, was seeking to prohibit the enforcement of Ordinance 15-107, which essentially closed the Civil Service Department's Belle Chasse office. At the conclusion of the trial, the trial court ordered the parties to file post-trial memoranda by November 7, 2016. The trial court took the matter under advisement and rendered a judgment on January 9, 2017. The judgment reads as follows:

IT IS ORDERED, ADJUDGED, AND DECREED BY THE COURT that for the reasons attached hereto, plaintiffs have failed to
prove their claim that the Plaquemine Parish's relocation of the Department of Civil Service from Belle Chasse to Port Sulphur pursuant to Section 5.03 of the Charter for Local Self-Government for Plaquemines Parish, Louisiana is an unlawful infringement by the legislative branch into the constitutionally protected operations of an executive agency, in violation of the Louisiana Constitution Article VI, Section 6, and therefore that claim is DISMISSED .
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT that for the reasons attached hereto, plaintiffs have failed to prove their claim that Paragraph 5.03 of the Charter for Local Self-Government for Plaquemines Parish, Louisiana, as applied to the proposed relocation of the Department of Civil Service, is unconstitutional in that it impairs the Civil Service Department's ability to perform in an effective and efficient manner as required by Article X, Section 13(B) of the Louisiana Constitution, and therefore, that claim is DISMISSED .
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT that, for the reasons attached hereto, all allegations against defendants Plaquemines Parish Government and Plaquemines Parish Council contained in plaintiff's Verified Petition for Temporary Restraining Order, and the Application for Preliminary Injunction and plaintiff's Amended Petition are hereby DISMISSED.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT that for the reasons attached hereto, the Application for Preliminary Injunction brought by plaintiffs Plaquemines Parish Civil Service Commission and Civil Service Director Ellen Barrois is hereby DISMISSED .
It is from this judgment that the Civil Service Department now appeals.

STANDARD OF REVIEW

Louisiana appellate courts review both law and facts. La. Const. art. 5, § 10 (B). The applicable standard of review for a factual finding is the manifestly erroneous or clearly wrong standard. To reverse a factfinder's determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State, Dep't of Transp. and Development , 617 So.2d 880, 882 (La. 1993). Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883. Accordingly, where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Id. at 883.

ASSIGNMENTS OF ERROR

The Appellants argue that the trial court erred in finding Council Ordinance 15-107 did not impair the Department of Civil Service's effective and efficient operation in violation of Louisiana Constitution Art. X, § 13 (B), and in finding the Council's relocation of the Department of Civil Service pursuant to the Parish Charter, § 5.03, was not an unlawful infringement by the legislative branch into the constitutionally protected operations of an executive agency, in violation of the Louisiana Constitution Art. VI, § 6. The Appellants further assert that the trial court erred in denying injunctive relief by failing to rule whether the Plaquemines Parish Council and Government violated an earlier judicial mandate in Plaquemines Parish Council, et al. v. Luke A. Petrovich , 662 So.2d 542 (La. App. 4 Cir. 10/18/95), writ granted, judgment vacated 663 So. 2d 703 (La. 11/3/95).

By way of background, Plaquemines Parish is governed by a Home Rule Charter/"Charter for Self-government for Plaquemines Parish ," enacted under the authority of Article VI, § 5 of the Louisiana Constitution. The Charter became effective January 1, 1991. In October of 1994, the Civil Service Commission was approved by Plaquemines Parish voters.

Article II, § 2 of the Louisiana Constitution offers guidance. "Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise powers belonging to the other." § 4.01(A) of the Charter bestows all legislative powers of Plaquemines Parish Government on the Council. That section further gives a non-exclusive list of the Council's specific powers, including the power to:

A(1) Represent, as governing authority, the Parish of Plaquemine's and all political subdivisions and districts therein, in any and all matters and actions, all rights, of action and warranties, and all rights, title, and interest in and to all lands and property owned by them, and to all resources and revenues derived therefrom.

A strict reading of § 4.01A(1) of the Charter indicates that the Council is the authorized representative of the parish in the legal matters at issue here. It is undisputed that all of the Commission's funding comes from appropriations approved by the Council and that the Council designates office space to be used by the Commission as well as other parish departments and agencies pursuant to § 5.03 of the Charter.

In the Appellants' first assignment of error they assert that the trial court erred in finding Council Ordinance 15-107 did not impair the Department of Civil Service's effective and efficient operation in violation of Louisiana Constitution Art. X, § 13 (B).

The Louisiana Constitution, Art. X, § 13 (B) provides that: "Cities. Each city subject to this part shall make adequate annual appropriations to enable its civil service commission and department to implement this part efficiently and effectively."

On September 11, 2014, the Council adopted Ordinance No. 14-160 which provided that pursuant to § 5.03 of the Charter, the administrative offices and employees necessary for the proper administration of the government of the Parish of Plaquemines and the other political subdivisions and the districts therein may be located at the "Parish Seat" or at other public buildings as may be designated by the Parish Council. Therefore, the Civil Service Department would be assigned office space in the Port Sulphur Government Building, Room Numbers 211, 214, 215, 217 and testing room office space would be located at Belle Chasse Government Complex, 333 F. Edward Herbert Blvd., Building 600, Belle Chasse, Louisiana. On August 13, 2015, pursuant to § 5.03 of the Charter, the PCC voted to adopt Ordinance No. 15-107, which rescinded prior Ordinance No. 14-160, thereby changing the location of the Department of Civil Service to Port Sulphur only. The new ordinance provided that the Civil Service Department was to be assigned office space located in the Port Sulphur Government Building, Room Numbers 211, 214, 215, 217 and the testing room was also to be located in the Port Sulphur Government Building, located at 8028 Hwy. 23, Port Sulphur, Louisiana.

An ordinance and a legislative act are presumed to be constitutional. Randolph v. Alexandria Civil Service Commission , 04-1620, p. 4 (La. App. 3 Cir. 4/6/05), 899 So.2d 857, 861. The party attacking the constitutionality of the statute or ordinance has the burden of proving that the statute or ordinance is unconstitutional. City of Lafayette v. Butcher Air Conditioning Co. Inc. , 392 So.2d 757 (La. App. 3 Cir. 1980). It is well settled that the burden of proving the unconstitutionality of an act or ordinance is by clear and convincing evidence. Theriot v. Terrebonne Parish Police Jury , 436 So.2d 515 (La. 1983). Municipal acts are to be interpreted to sustain validity if susceptible to reasonable interpretation having legal effect. Gurst v. City of Natchitoches , 428 So.2d 502 (La. App. 3 Cir. 1983).

Ostensibly, after hearing all of the testimony and evidence the trial court determined that while the Port Sulphur offices may not be as conveniently located to Belle Chasse as the Appellants would have liked, the "inconvenience" did not reach the level which would rendered the Commission unable to perform its work effectively and efficiently.

The Council clearly has the authority to administer parish property under § 4.01 of the Charter. The Appellants have failed in their burden of proof, by clear and convincing evidence, that Council's Ordinance No. 15-107 impaired the effective and efficient operation of the Department. Thus, the constitutional requirements were satisfied. There is no merit to this assignment of error.

In the Appellants' second assignment of error, they assert that the trial court erred in failing to find that the Council's relocation of the Department of Civil Service pursuant to the Parish Charter, § 5.03, was an unlawful infringement by the legislative branch into the constitutionally protected operations of an executive agency, in violation of the Louisiana Constitution Art. VI, § 6. While this assignment of error dovetails into the appellants' first assignment of error we will distinguish the issues.

The Council derives its authority from provisions in the Charter, pursuant to Article II Powers of Parish Government, Section 1, Powers of Parish Council and all subsequent sections that follow including the promulgation and amending of ordinances. The Appellants' arguments asserting that § 5.03 was an unlawful infringement by the legislative branch into the constitutionally protected operations of an executive agency is specious at best. The evidence shows that the Commission has been located in numerous facilities over the years, including the Port Sulphur Government Building. The Appellants never challenged the location of the Civil Service Department location in Port Sulphur from approximately 1997 through 2005 when Hurricane Katrina devastated the majority of Plaquemines Parish. The only challenge comes after this devastation and the necessary relocation to Belle Chasse.

As noted above, the trial court concluded that:

While the Port Sulphur offices may not be as conveniently located to Belle Chasse as plaintiffs would like, the Court does not find this 'inconvenience' goes to the Civil Service Commission's alleged inability to perform its work. The Court notes that there was no evidence at trial that they were unable to operate effectively and efficiently when they were assigned to the Port Sulphur office in the past. This Court does not accept the assertion that the Commission's future assignment to the Port Sulphur office would result in its ineffective or inefficient operation at this time.

We are in agreement with the trial court. The Appellants have failed to meet their burden of proof by clear and convincing evidence that the Council's enactment of Ordinance 15-107 is an unconstitutional infringement by the parish's legislative body into the operations of an executive agency in violation of Article VI, § 6, and § 5.03 of the Charter. This Ordinance was duly adopted by the governing authority of Plaquemines Parish through the Council. There is no unconstitutional overreaching by the Council under Article X, § 13 (B) of the Louisiana Constitution. There is no basis to overturn the legality of Ordinance 15-107 and the great deference afforded the trial court's findings of fact.

In the Appellants' final assignment of error they assert that the trial court erred when it denied injunctive relief and failed to rule whether the Parish Council and Government violated an earlier judicial mandate in Plaquemines Parish Council, et al. v. Luke A. Petrovich , 662 So.2d 542 (La. App. 4 Cir. 10/18/95), writ granted, judgment vacated 663 So.2d 703 (La. 11/3/95).

The Appellants have failed to state a reasonable basis for the applicability of this case. Based on the trial court's well-reasoned judgment in finding that the Appellants have failed to satisfy their burden of proof challenging the validity of Ordinance 15-107 and the Council's authority to promulgate and implement the Ordinance, we find this assertion not only jurisprudentially inapplicable but moot. The trial court did not error in denying the Appellants request for injunctive relief. There is no merit to this assignment of error.

Accordingly, based on the record before this Court, applicable jurisprudence and evidence presented to the trial court, we affirm the judgment of the trial court.

AFFIRMED

      The Commission consists of five members chosen from five colleges located throughout the State of Louisiana, who are appointed by the PPC to serve a six-year term without compensation. The Commission selects the Director of the Civil Service Office. The Commission is independent from the PPC and the Parish President's Office. The Department of Civil Service employees are paid by the Department of Plaquemines Parish Government.

      The appellants also reference a subsequent unpublished opinion in the same titled case referenced at 675 So.2d 305 (La. App. 4 Cir. 6/26/96). The original case was an election suit.

      Home Rule Charter and Charter for Self-Government for Plaquemines Parish are use indiscriminately and interchangeably throughout the record.


author: SAUNDERS, Judge

text:
    STATE of Louisiana v. Ali Lee BARCONEY
    17-871
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2018
    John F. DeRosier, District Attorney, Fourteenth Judicial District, Carla S. Sigler, Charles Robinson, Karen C. McLellan, Assistant District Attorneys, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Chad M. Ikerd, Louisiana Appellate Project, P.O.Box 2125, Lafayette, LA 70502, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: Ali Lee Barconey
    Ali Lee Barconey, Main Prison, Louisiana State Prison, Angola, LA 70712, PRO-SE, Ali Lee Barconey
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Elizabeth A. Pickett, Judges.
   SAUNDERS, Judge

On January 8, 2015, Defendant, Ali Lee Barconey, was charged by bill of indictment with the September 25, 2014 second degree murder of Nathaniel Reynaud, in violation of La.R.S. 14:30.1. Three codefendants, Travis Syntel Barber ("Mr. Barber"), William Lee Carter ("Mr. Carter"), and Bryant Anthony Payne ("Mr. Payne"), were also charged with second degree murder. A fourth codefendant, Ineatta Stevens Arrington ("Ms. Arrington"), was charged with obstruction of justice under La.R.S. 14:130.1(A)(1).

On March 22, 2017, Defendant proceeded to trial. Following three days of testimony, the jury found Defendant guilty as charged in an 11-1 vote. On April 10, 2017, the trial court sentenced Defendant to a mandatory life sentence without benefit of probation, parole, or suspension of sentence.

Defendant now appeals his conviction and sentence, raising two assignments of error, as follows: (1) there was insufficient evidence to support his conviction for second degree murder; and (2) the trial court erred in denying his repeated objections to La.Code Crim.P. art. 782(A).

FACTS:

Dwayne Willis ("Mr. Willis") testified that he and his wife were present at Howard Olivier's ("Mr. Olivier") house talking with Mr. Olivier and the victim, Nathaniel "Dirty Red" Reynaud ("Mr. Reynaud"), when they saw three people burst into the house with guns. Mr. Willis could not identify the three individuals, as he testified they were wearing ski masks or bandannas over their faces. He testified that during a struggle in the hallway of the house, he was shot on the side of the head. Mr. Willis further testified that all three intruders were shooting guns and that he was shot with a revolver.

Mr. Olivier took the stand next. Mr. Olivier admitted that he had been selling drugs for "[a] long time, some years, some years." He testified that he and Mr. Reynaud were sitting around with Mr. Willis and Mr. Willis's wife when someone kicked in his front door. He and Mr. Reynaud had both been doing cocaine. He was shot twice, and after running into Mr. Willis, he jumped out of the window of his back bedroom. He, like Mr. Willis, was unable to identify the assailants who entered his home.

Mrs. Lekena Pappion ("Mrs. Pappion"), Mr. Willis's wife, testified that she and her husband went to visit her sister-in-law who lives next door to Mr. Olivier when they saw Mr. Olivier and Mr. Reynaud. She testified that as she and her husband were preparing to leave Mr. Olivier's home, the front door flew open, and three men, all wearing black with their faces covered, entered. Mrs. Pappion testified that she escaped out the front door and hid by her car while two of the intruders were in the back of the trailer with her husband and Mr. Olivier. She testified she heard two loud shots shortly after she made it out of the trailer, which sounded to her like they were in the living room where Mr. Reynaud had been previously sitting. She testified that the third gunman did not shoot them and took off. She then checked on Mr. Reynaud, but he was already dead, so she tried to get her husband medical help, as he was bleeding profusely. Like the prior witnesses, Mrs. Pappion could not identify the gunmen, as their faces were covered.

Jennifer Hoffpauir ("Officer Hoffpauir"), an evidence officer with the Lake Charles Police Department, testified that she took photographs of the crime scene. She also identified a black ski mask recovered from the hallway of Mr. Olivier's residence. Officer Hoffpauir also obtained video surveillance from two businesses in the area, Dyer's Tires and Southwest Mobile Home. The footage from Dyer's Tires showed what appeared to be Defendant's Chevy Trailblazer entering Allen Street, the dead-end street on which this shooting took place, a few minutes before the 9-1-1 call reporting the incident was received. The vehicle left Allen Street moments before the call was received. Officer Hoffpauir acknowledged that although the vehicle in the video appeared to be Defendant's vehicle, which was subsequently seized and searched pursuant to a warrant, it was impossible to definitively say that it was the same, as the videos did not capture the license plate she could not see who was in the vehicle.

Dr. Terry Welke ("Dr. Welke") was accepted by stipulation as an expert in the fields of medicine and forensic pathology. Dr. Welke testified that Mr. Reynaud was shot in the lower back from within two feet. He also testified that Mr. Reynaud was shot in the back of the head, though he could not definitely say whether that gunshot was within two feet, or if it was farther. Dr. Welke felt that Mr. Reynaud was likely shot in the back first then shot again with the "execution style" shot to the head. He stated that Mr. Reynaud's death was a homicide caused by a "gunshot wound to the head." He also stated that the bullets recovered from Mr. Reynaud's body were large caliber, but he could not give a specific caliber size.

Ms. LeAnne Suchanek ("Ms. Suchanek"), a former DNA Technical Manager for the Southwest Louisiana Crime Lab, was accepted by stipulation as an expert in the field of DNA testing. Ms. Suchanek testified that she was the DNA analyst of record for the evidence recovered in this case. She tested a black mask, two black socks, and a black head wrap. She noted there was more than one contributor of DNA on the mask, a major contributor on the head wrap, and a multiple contributor mixture on the bloodstains on the socks. Ms. Suchanek testified that she ran the major contributor for the mask and the head wrap through the Combined DNA Index System (CODIS) and received a notification that the major contributor for the mask could be Defendant, whose DNA was in the system due to a prior armed robbery conviction. She further testified that she compared the major contributor from the ski mask with a blood sample taken from Defendant, and it was a match with "the probability of randomly selecting an individual from the general population with that same DNA profile [was] approximately one in 881 quadrillion." She also noted the major contributor for the head wrap was Mr. Willis.

Sergeant Keith Lacosio, with the Jefferson Parish Sheriff's Department, identified Defendant as the individual he arrested in 2002, for the armed robbery of a cab driver. Defendant pled guilty to armed robbery on May 21, 2002 and received a ten-year sentence.

Detective Colby Thompson ("Detective Thompson") of the Lake Charles Police Department testified that he headed the investigation into Mr. Reynaud's murder. Detective Thompson testified that after he received the CODIS hit on Defendant's DNA being the major contributor on the ski mask, another detective drove by Defendant's home and noticed that the vehicle parked there appeared to match the vehicle in the video footage obtained from businesses near the shooting. The vehicle's license plate was run through the Department of Motor Vehicles database and found to be registered to Defendant and his wife, Mrs. Arrington. Detective Thompson noted that when the search warrants for Defendant's home and vehicle were executed, Mr. Barber and Mr. Carter, who admitted that they were the two other intruders in Mr. Olivier's home, were also at the home. Detective Thompson testified that while searching Defendant's vehicle, he found a small sawed-off shotgun behind the driver's seat. He stated that one of the individuals pointed him in the direction of Mr. Payne as also being involved. Detective Thompson and his team obtained a search warrant for Mr. Payne's home and recovered three loaded weapons, none of which were involved in the murder of Mr. Reynaud.

Brandy Love-Bodin, an evidence officer with the Lake Charles Police Department, testified that she recovered six cell phones from Mr. Payne's home, including a black cell phone which was entered into evidence as State's Exhibit 56. Lieutenant Tim Richards of the Lake Charles Police Department testified that he did a data extraction on State's Exhibit 56. He testified that the phone belonged to Mr. Payne.

Mr. Payne stated that he was testifying as part of a plea deal whereby the State would allow him to plead guilty to two counts of illegal possession of firearms in exchange for "[his] honest testimony." Mr. Payne testified that he had known Defendant since they were teenagers and that they reconnected around 2012. He testified that despite being a convicted felon, he frequently purchased and sold stolen weapons. He stated Defendant and his wife asked him for a gun while they were working in his recording studio because they had someone they wanted to rob and that he refused to sell them one. He further testified that about a week later, Defendant called him claiming someone tried to break into Defendant's studio and again asked for a weapon, this time for protection. At that time, he gave Defendant a .45 caliber Ruger revolver, although all he knew about the model was that it started with a "V."

Mr. Payne testified that he later asked Defendant via Facebook and text messaging about the gun, but Defendant would not give him the gun back. Mr. Payne testified that about a week after Mr. Reynaud's murder, Defendant told him "that was his work, and he started laughing." Mr. Payne stated he did not call the police because he did not take Defendant seriously. He also acknowledged that he did not tell the police everything he knew when he was initially arrested.

Mr. Charles Watson ("Mr. Watson"), a Forensic Scientist with the Louisiana State Police Crime Lab, was accepted by stipulation as an expert in the fields of ballistics and firearm examination. He testified that the bullets recovered from the victim were fired from a .45 caliber revolver, and he noted that Ruger made a .45 caliber gun called a "Viquero." Mr. Watson finally testified that none of the weapons which were submitted to him for testing could have fired the bullet fragments recovered from Mr. Reynaud.

Mr. Carter, Defendant's nephew and codefendant, testified that after they had spent the day drinking, Mr. Barber decided that he, Mr. Carter, and Defendant should commit the robbery that led to Mr. Reynaud's death. He stated that Mr. Barber distributed the weapons, keeping the sawed-off shotgun for himself, and giving him a long shotgun, and Defendant a revolver. Mr. Carter claimed that he was unfamiliar with the area, but that they took Defendant's Trailblazer and headed to the house they had previously passed on the way back from drinking. Mr. Carter testified that Mr. Barber kicked down Mr. Olivier's door and entered first, with Defendant second and him bringing up the rear. Mr. Carter testified that, as far as he was aware, Defendant was the only person whose gun was loaded.

Mr. Carter further testified that when he entered the trailer, he did not see Mr. Barber, but Defendant had Mr. Reynaud at gunpoint in the living room. He claims that he told Defendant to follow Mr. Barber, as he was "going to hold it down right cher[sic]." According to Mr. Carter, he turned when Mrs. Pappion ran past him out the door, and at that point, Mr. Reynaud jumped up and attacked him. He claimed he was struggling with Mr. Reynaud for control of the gun when Defendant came back into the room and shot Mr. Reynaud in the back. Mr. Carter testified that after he and Defendant realized that he had not been shot by the bullet, Mr. Reynaud fell to the ground, and when moved after he had fallen, Defendant panicked and shot him in the head. He testified that Defendant put the gun to the victim's head, with the barrel touching skin, and pulled the trigger. At that point, he and Defendant fled the trailer and waited for Mr. Barber to rejoin them outside before driving off in the Trailblazer, which he and Mr. Barber subsequently ditched in Iowa, Louisiana. Mr. Carter stated that he struck a plea deal to provide "truthful testimony" against Defendant, his uncle, in exchange for pleading guilty to armed robbery. He also acknowledged that he pled guilty in September of 2016 to aggravated battery, a reduced charge that was originally attempted murder. Mr. Carter noted that Defendant used a black mask to keep the wind off his face when he was working offshore. He disagreed with the coroner's statement that the barrel of the gun was not touching the victim on either shot, insisting the gun was touching skin.

PATENT ERROR REVIEW:

In reviewing the record for errors patent, this court finds that the trial court gave the Defendant erroneous advice as to the time period for filing post-conviction relief. The Defendant was advised at sentencing that he has two years "from today's date and the sentence becoming final to file for post-conviction relief." According to La.Code Crim.P. art. 930.8, the prescriptive period for filing post-conviction relief is two years, and it begins to run when a defendant's conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. Although part of the trial court's advisement was correct, we find that the trial court's statement that Defendant has two years from "today's date" was incorrect. Therefore, out of an abundance of caution, we direct the trial court to inform Defendant of the correct provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof in the record of the proceedings that Defendant received the notice. State v. Roe , 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied , 05-1762 (La. 2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, Defendant argues the evidence presented by the State was insufficient under Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to identify Defendant as the perpetrator of the crime beyond a reasonable doubt. The analysis for a sufficiency claim is well settled:

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.

Although Defendant has alleged that the evidence was insufficient to support his conviction, his argument is based solely on issues of identification. Because Defendant has failed to allege insufficiency with regard to any of the elements of second degree murder, we will address only the issue of identification. As this court has previously noted, "[w]hen identity is at issue, the State must negate any reasonable probability of misidentification." State v. Clark , 10-559, p. 4 (La.App. 3 Cir. 12/8/10), 52 So.3d 304, 307.

Defendant's argument is that the State failed to prove that he was one of the people who took part in the murder of Mr. Reynaud. This argument lacks merit.

The State's DNA expert, Ms. Suchanek, testified that Defendant was the major contributor of DNA found on the black ski mask recovered from the crime scene. Both Mr. Willis, and his wife Mrs. Pappion, testified that the intruders had their faces covered, with Mr. Willis stating two were wearing ski masks. Additionally, Defendant's nephew and codefendant, Mr. Carter, testified that not only was Defendant one of the intruders, but that Defendant was in fact the individual armed with a revolver who shot Mr. Reynaud.

Defendant argues his DNA inside the mask does not prove he was present at the crime scene, as there was testimony that he used the same type of mask at work. Additionally, he argues that Mr. Carter was an unreliable witness whose testimony on multiple details of the night's events was contradicted by other witnesses. Ironically, the only witness to provide testimony that Defendant used a similar ski mask at work was Mr. Carter.

Defendant's argument, with regard to Mr. Carter's testimony, is unpersuasive. While Defendant correctly points out that Mr. Carter's testimony regarding the proximity of the gun to the victim's skin was contradicted by the coroner, and Mr. Carter's claim that only Defendant's weapon was loaded, was likewise contradicted by Mr. Olivier's testimony that he was shot with the sawed-off shotgun, the jury clearly believed Mr. Carter's testimony vis-à-vis Defendant's involvement. As this court has previously stated:

In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. The question of the credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. The credibility of the witnesses will not be re-weighed on appeal.

State v. Westmoreland , 10-1408, p. 6 (La.App. 3 Cir. 5/4/11), 63 So.3d 373, 379, writ denied , 11-1660 (La. 1/20/12), 78 So.3d 140 (quoting State v. Perry , 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied , 09-1955 (La. 6/25/10), 38 So.3d 352 ).

Mr. Carter's testimony that Defendant was one of the individuals who entered Mr. Olivier's home, and was the individual who shot and killed Mr. Reynaud, is not contradicted by any of Mr. Carter's other testimony, despite discrepancies between his recollection of other details and the testimony of other witnesses. Additionally, the presence of Defendant's DNA inside a ski mask recovered from the scene of the murder supports, rather than conflicts with, Mr. Carter's claim that Defendant was present in the house. Mr. Carter's testimony alone is sufficient to support Defendant's conviction. This court will not re-weigh the credibility of the witnesses in this case. Westmoreland , 63 So.3d 373. Moreover, Defendant's contention that Mr. Carter is an unreliable witness lacks merit, as it does nothing more than ask this court to re-assess witness credibility on appeal. Accordingly, Defendant's assignment of error number one lacks merit.

ASSIGNMENT OF ERROR NO. 2:

In Defendant's second assignment of error, he argues that the trial court erred in denying his numerous objections to Louisiana's non-unanimous jury verdict rule enunciated in La.Code Crim.P. art. 782 which states "[c]ases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict." As noted by Defendant, the supreme court has recently upheld La.Code Crim.P. art. 782 as constitutional in State v. Bertrand , 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738. Additionally, Defendant acknowledges the Supreme Court's 1972 holding that a state court conviction obtained by a less than unanimous jury was constitutional is still good law. See Apodaca v. Oregon , 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). Defendant argues that recent supreme court rulings have called into question the reasoning of the Apodaca opinion. However, Defendant can provide no other support for his assertion that La.Code Crim.P. art. 782 is unconstitutional. We find no merit to this contention.

Due to this Court's prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court's still valid determination that non-unanimous 12-person jury verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.

Bertrand , 6 So.3d at 743.

Defendant is asking this court to do exactly what the supreme court refused to do in Bertrand -presume, based solely upon speculation, that the United States Supreme Court will one day overturn Apodaca . Accordingly, we find that Defendant's assignment of error number two lacks merit.

CONCLUSION:

For the foregoing reasons, we affirm the trial court's April 10, 2017, conviction of Defendant for the charge of second degree murder. We further direct the trial court to inform Defendant of the correct provisions of La.Code Crim.P. art. 930.8, by sending appropriate written notice to Defendant within ten days of the rendition of this opinion, and to file written proof in the record of the proceedings that Defendant received the notice.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS