author: THIBODEAUX, Chief Judge.

text:
    CITY OF YOUNGSVILLE v. C. H. FENSTERMAKER & ASSOCIATES, L.L.C.
    17-1065
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018
    Paul J. Hebert, K. Wade Trahan, Ottinger Hebert, L.L.C., P. O. Drawer 52606, Lafayette, LA 70505-2606, Telephone: (337) 232-2606, COUNSEL FOR: Defendant/Appellee-Glenn Lege Construction, Inc.
    Frank X. Neuner, Jr., Brandon W. Letulier, Jeffrey K. Coreil, NeunerPate, One Petroleum Center-Suite 200, 101 West Pinhook Road, Lafayette, LA 70503, Telephone: (337) 237-7000, COUNSEL FOR: Defendant/Appellant-C. H. Fenstermaker & Associates, L.L.C.
    William Lee Melancon, Melancon & Associates, 520 Roosevelt Street, Lafayette, LA 70503, Telephone: (337) 233-8600, COUNSEL FOR: Plaintiff/Appellee-City of Youngsville
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.
   THIBODEAUX, Chief Judge.

The defendant engineer, C. H. Fenstermaker & Associates, L.L.C. (Fenstermaker), provided engineering services for the construction of a roadway in the City of Youngsville. Youngsville sued Fenstermaker for deterioration of the roadway. Fenstermaker filed a third-party demand against the construction company, Glenn Lege Construction, Inc. (GLC). GLC filed an exception of peremption, which was granted by the trial court. Fenstermaker appeals the trial court's judgment in favor of GLC. Finding no error or manifest error in the trial court's judgment, we affirm.

I.

ISSUE

We must decide whether the trial court erred in interpreting La.R.S. 9:2772 and in granting GLC's exception of peremption.

II.

FACTS AND PROCEDURAL HISTORY

The City of Youngsville (City) contracted with Fenstermaker for engineering services in the design, planning, and supervision of a 6.5-mile roadway in Lafayette Parish. The City entered into a separate contract with GLC for construction of the roadway as designed. Upon the recommendation of Fenstermaker, the City opened the road to the public in 2009, but only months later, in 2009, the roadway began to fail. The City still held funds on both Fenstermaker's and GLC's open contracts. GLC did repair work, and Fenstermaker oversaw the work. The last change order on the construction contract was dated January 21, 2010. The City accepted the work and recorded its public notice of acceptance on August 27, 2010.

Failures began again over the next few years. It was determined that the failures were due to the soil in the base and the asphalt. The City's mayor hired a new engineer in 2015 and filed suit against Fenstermaker on August 19, 2015, within five years of the recorded acceptance. Fenstermaker filed an exception of peremption, asserting a 2009 acceptance of substantial completion. The trial court denied Fenstermaker's exception of peremption. This court denied Fenstermaker's writ application, No. 16-431, on Fenstermaker's exception of peremption.

Fenstermaker filed a third-party demand against GLC on December 23, 2015, asserting fault and seeking indemnification in the amount of any judgment issued against Fenstermaker in the main demand. GLC asserted that it had followed the design specifications and used the materials required by Fenstermaker and that Fenstermaker's third-party demand against GLC was untimely. The trial court granted GLC's exception of peremption. Fenstermaker appeals the judgment of the trial court, asserting that the trial court misinterpreted the statute at issue, La.R.S. 9:2772.

III.

STANDARD OF REVIEW

Questions of law, such as the proper interpretation of a statute, are reviewed by the appellate court under the de novo standard of review. Land v. Vidrine , 10-1342 (La. 3/15/11), 62 So.3d 36 (citations omitted).

Peremption is a period of time fixed by law for the existence of a right. La. Civ.Code art. 3458. The right is extinguished upon the expiration of the peremptive period. Id. When the peremptive period has run, the cause of action itself is extinguished unless timely exercised. State Through Div. of Admin. v. McInnis Bros. Const. , 97-0742 (La. 10/21/97), 701 So.2d 937, 939. "Peremption may be pleaded or it may be supplied by a court on its own motion at any time prior to final judgment." La. Civ.Code art. 3460. "Peremption may not be renounced, interrupted, or suspended." La. Civ.Code art. 3461.
The peremption exception is considered a peremptory exception. Denham Springs Economic Development Dist. v. All Taxpayers, Property Owners and Citizens of Denham Springs Economic Development Dist. , 05-2274 (La. 10/17/06), 945 So.2d 665, 680 ; La.Code Civ. Proc. art. 927. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Carter v. Haygood , 04-0646 (La. 1/19/05), 892 So.2d 1261, 1267. Peremption has been likened to prescription; namely, it is prescription that is not subject to interruption or suspension. Flowers, Inc. v. Rausch , 364 So.2d 928, 931 (La.1978) ; see also La. Civ.Code art. 3461. As such, the following rules governing the burden of proof as to prescription apply to peremption.
If prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Carter, 892 So.2d at 1267. If evidence is introduced at the hearing on the peremptory exception of prescription, the district court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Stobart v. State, through DOTD , 617 So.2d 880, 882 (La.1993).

Rando v. Anco Insulations Inc. , 08-1163 pp. 19-20 (La. 5/22/09), 16 So.3d 1065, 1082.

IV.

LAW AND DISCUSSION

The Louisiana Legislature enacted La.R.S. 9:2772 in 1964 to protect building contractors from liability for past construction projects that could extend for an indefinite period of time. Thrasher Constr., Inc. v. Gibbs Residential, L.L.C. , 15-607 (La.App. 4 Cir. 6/29/16), 197 So.3d 283, writ denied , 16-1453 (La. 11/15/16), 209 So.3d 779. More specifically, La.R.S. 9:2772 provides that a suit arising from the design and construction of an immovable must be brought not more than "five years after the date of registry in the mortgage office of acceptance of the work by owner." La.R.S. 9:2772(A)(1)(a). If no acceptance is recorded within six months of occupancy or possession of the property, the date of occupancy is the date that begins the five-year period for filing suit. La.R.S. 9:2772(A)(1)(b). If the main demand is brought within ninety days of the expiration of the five-year peremptive period, that defendant will have ninety days from the date of service of the main demand to file a third-party claim. La.R.S. 9:2772(A)(1)(c).

Here, the City filed the main demand against Fenstermaker on August 19, 2015, within ninety days of the expiration of the five-year period which began on August 27, 2010, and which ended on August 27, 2015. Thus, GLC argues that Fenstermaker had ninety days from the date of service of the main demand on Fenstermaker within which to file a third-party demand against GLC. The record reveals that service of the main demand was made on Fenstermaker on August 21, 2015. Thus, GLC asserts that La.R.S. 9:2772(A)(1)(c) applies, and Fenstermaker had to file its third-party demand against GLC in November 2015. Fenstermaker did not file its third-party demand against GLC until December 23, 2015. Thus, GLC argues that Fenstermaker's third party demand is perempted.

Fenstermaker contends that the damage to the roadway was discovered by the new City Engineer, Pamela Gonzales-Granger, in March and June 2015, and that La.R.S. 9:2772(C) gives Fenstermaker an additional year from those dates in 2015 to file its third-party demand. Louisiana Revised Statutes 9:2772(C) (emphasis added) provides as follows:

If such an injury to the property or to the person or if such a wrongful death occurs during the fifth year after the date set forth in Subsection A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury , but in no event more than six years after the date set forth in Subsection A, even if the wrongful death results thereafter.

The trial court interpreted "an injury" and "the injury" as the initial deterioration and failure of the roadway that had begun in previous years and was ongoing. In its reasons for judgment the trial court cited the testimony of the City's engineer, Pamela Gonzales-Granger:

After considering the briefs filed and testimony and evidence presented by the parties, the Court sustained the exception of peremption filed by Glenn Lege Construction, Inc. The Court rejected the argument made by C. H. Fenstermaker & Associates, LLC that its third party demand filed on December 23, 2015 was timely pursuant to the provisions of La. R. S. 9:2772 (C) which extends the period for filing a third party demand if the "injury" to the property occurs during the fifth year after the filing of the Notice of Acceptance. After hearing the testimony of City engineer, Pamela Gonzales-Granger, the Court found the deterioration of the roadway that was noted in March and June of 2015 was not a new "injury" to the property but was a reoccurrence of an ongoing issue which existed in the base of the Chemin Metairie Parkway prior to March and June of 2015.

This indicates that the trial court would have applied Paragraph (C) to the third-party demand but believed that it was inapplicable because "the injury" at issue did not occur in the fifth year. As discussed below, we believe that Paragraph (C) does not and did not apply to third-party demands at the pertinent times for other reasons as well. However, we will first discuss the trial court's reasons.

As previously stated, Ms. Granger began her tenure as city engineer in January 2015 with the new mayor's administration. The record reveals that the roadway was already failing at that time. Ms. Granger testified that a repair project was underway that Fenstermaker had begun in December 2014 and that she had stopped that project in February 2015, as she found more and more areas of deterioration in an amount that required rebidding the project.

Three letters from Granger to the mayor recommended cost approvals for "Chemin Metairie Parkway Phase 1 Emergency Roadway Patching and Reconstruction." The first letter, dated February 27, 2015, recommended awarding GLC the construction bid of $456,161 on a repair project that clearly had been studied for some time, as there were alternative proposals at differing costs to "fix failing areas" of the roadway, which was to have had a ten-year life-expectancy when it was accepted by the City in 2010. The second letter from Ms. Granger was dated March 30, 2015. It recommended a change order increasing the amount for reconstruction by $202,477 due to "additional deterioration" and "potholes" identified in a March 18 walk-through that had not appeared in February 3 and 6. A third letter from Ms. Granger dated June 3, 2015, recommended another increase of $553,163 after a June 1 walk through identified "additional deterioration" along the route that on February 3 and 6 had not shown deterioration or potholes "as well as an increase in the areas that showed deterioration previously." At the trial of GLC's exception, Ms. Granger was asked about the March and June letters:

Q. Now, during the course of that inspection in which you reported to Mayor Ritter was there anything new that was happening with the roadway as compared to the prior experiences.
A. No. Both letters in which you are referring to were times along the construction of the project where we identified that there were just additional areas of the same problem and that we needed to address those while we were out there doing the construction.

On direct examination, Ms. Granger reiterated four more times that those inspection letters identified reoccurrences of the same problem. On cross-examination, Ms. Granger testified approximately one dozen times that her inspections in 2015 revealed additional areas of the same type of deterioration in the roadway that were the subject of the repairs and reconstruction already underway in December 2014. If repairs were underway in December 2014, the damage occurred well before that time. Ms. Granger testified that they were patching and reconstructing the road by fixing the worst areas first because money was limited. If areas of the road just had "dips" in them, they moved on to fix the roadway where it was unusable. Then, as the project went forward, the areas that were not as bad also became deteriorated. She rebid the project in February and recommended increases in March and June 2015. While neither the trial court nor the parties discussed any particular dates in 2014 when these preexisting repairs were begun, it appears that the trial court, having just heard and denied Fenstermaker's second exception of peremption, believed that the ongoing problems with the road were in the base of the road as it was originally built. The record as a whole supports that conclusion.

Fenstermaker wishes to isolate the last deteriorations found in March and June 2015 as if Fenstermaker had not planned, designed, and overseen the entire length of the road and required the same materials for the whole length of the road. The new road began to fail shortly after it was accepted by the City, and it continued to deteriorate as the five-year deadline for recovery approached, as evidenced by the letters from the City's new engineer, Ms. Granger. The entire road was flawed, and the same design that caused it to crumble in one place was causing it to crumble in other places. To say that only the most recent deterioration in the fifth year constituted "such an injury" would mean that Fenstermaker was only responsible for the failure of the spots that crumbled in March and June of 2015, but not for the ones found in the previous years.

The City had five years from acceptance of the design to bring suit, and it did so timely under 9:2772(A). Fenstermaker had ninety days from the day it was served by the City to bring its third-party claim against GLC under 9:2772(A)(1)(c). It did not do so. No case on the subject indicates that "the injury" referred to in 9:2772(C) was intended to apply to only the last injuries in a situation such as this. In fact, Fenstermaker accuses GLC of inserting "first" before the word "injury," but Fenstermaker wishes us to insert "last" before the word "injury." The two or three cases cited by Fenstermaker, discussed more fully below, involve a single injury and provide no authority for Fenstermaker's position.

Moreover, regardless of the date of the injury, we find that Paragraph (C) does not now apply to third-party demands, and it is questionable whether it ever did. More specifically, the words to La.R.S. 9:2772(C) indicate that it covers "an injury" or "the injury" "to the property or to the person" giving rise to the lawsuit; and when considering the statute as a whole, it is clear that (C) is written to benefit the injured party in the main demand. This paragraph does not in any way discuss third party demands or indicate that it is written to benefit the defendant in the main demand. If the injured plaintiff in the main demand takes advantage of the extra year in Paragraph (C), then the defendant has ninety days from service of that filing to file its-third party demand, pursuant to La.R.S. 9:2772(A)(1)(c).

This becomes clearer when analyzing La.R.S. 9:2772(B), which provides that the peremptive periods of Paragraph (A) apply to actions for a deficiency in planning, design, inspection, or construction of improvements to immovable property for "damage to property " or "injury to person " "arising out of any such deficiency. " La.R.S. 9:2772(B)(1)(a) through (c). Louisiana Revised Statutes 9:2772(B)(3) (emphasis added) states: "Except as otherwise provided in Subsection A of this Section, this peremptive period shall extend to every demand , whether brought by direct action or for contribution or indemnity or by third-party practice , and whether brought by the owner or by any other person." Paragraph (B)(3) does not provide for any other extension of the five-year peremptive period for a third-party demand, except for the ninety-day extension in Paragraph (A), specifically Subparagraph (A)(1)(c). If the legislature had intended for the extra year in paragraph (C) to apply to third-party demands, it would have included (C) as an "otherwise provided" extension in the text of (B)(3).

Subparagraph (A)(1)(c) is the only paragraph in La.R.S. 9:2772 that extends the five-year peremptive period for third-party demands. Louisiana Revised Statutes 9:2772 was amended in 2012, and Subparagraph (A)(1)(c) was enacted/added at that time. Thus, it is clearly the applicable subpart in this case.

Moreover, the additional year in Paragraph (C) does not help Fenstermaker in this case because Fenstermaker has not yet suffered damages. More specifically, again, La.R.S. 9:2772(C) (emphasis added) states:

If such an injury to the property or to the person or if such a wrongful death occurs during the fifth year after the date set forth in Subsection A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury , but in no event more than six years after the date set forth in Subsection A , even if the wrongful death results thereafter.

Fenstermaker cannot recover damages that it has not suffered , and it is not an injured entity who has suffered damages until it is cast in judgment. Even if the last date of injury, June 1, 2015, were considered the defining date of injury, and if Fenstermaker were cast in judgment today, the date of acceptance was August 27, 2010, almost eight years ago, which is clearly outside the six-year limit of La.R.S.9:2772(C). In this case, Fenstermaker's claim was perempted under Paragraph (C) before its cause of action arose. It is only Subparagraph (A)(1)(c) that extends the peremptive period for Fenstermaker's filing of a third-party demand.

We are particularly instructed by the Louisiana Supreme Court's analysis in a case which pre-dated the 2012 amendment to La.R.S. 9:2772 which added Subparagraph (A)(1)(c) and the ninety-day extension therein. We note that Paragraph (C) was in existence in 2011, and the supreme court did not apply it, or even address it, because, in 2011, no part of La.R.S. 9:2772 created an extension for a cause of action that had not accrued. In Ebinger v. Venus Construction Corporation , 10-2516 (La. 7/1/11), 65 So.3d 1279, the Louisiana Supreme Court discussed Paragraph (B) and thoroughly and comprehensively addressed whether the 2003 amendment to La.R.S. 9:2772, reducing the seven-year peremptive period to a five-year peremptive period, was in applicable because it disturbed a vested right of the defendant/third-party plaintiff. The court found that the 2003 amendment was applicable because it did not disturb a vested right. The court stated as follows:

[W]e are mindful of the difference between the commencement of peremption and the accrual of a cause of action. These key moments in time apparently have been confused in this case. Although the peremptive period in this matter began on April 22, 1997, nothing in La. R.S. 9:2772 indicates that [the defendant's] right to indemnity vested at that time, as [the defendant] contends. Logic and the nature of indemnity instruct otherwise. Although cracks in the [plaintiff's] brick veneer may create a cause of action for the homeowners, it did not create [the defendant's] cause of action for indemnity. Indemnity is a separate substantive cause of action, independent of the underlying wrong. Nassif v. Sunrise Homes , 98-3193 (La. 6/29/99), 739 So.2d 183, 186. As we explained in Nassif , "[i]ndemnity in its most basic sense means reimbursement, and may lie when one party discharges a liability which another rightfully should have assumed. Id. at 185. Unless and until [the defendant] is cast in judgment, it has discharged no liability for which to seek reimbursement from [the third-party defendant]. A third-party defendant is liable to the third-party plaintiff only if the third-party plaintiff is cast in judgment.
Howard v. Baker Heritage Hosiery , 683 So.2d 827, 830 (La.App. 5 Cir.10/1/96). In other words, liability on a third-party demand is contingent upon the result of the main demand. Burns v. McDermott, Inc. , 665 So.2d 76, 79 (La.App. 1 Cir.1995).

Ebinger , 65 So.3d at 1286-87 (emphasis added).

The court further stated:

When the [plaintiffs] took occupancy in 1997, [the defendant/third-party plaintiff] had no claim for indemnification because it had neither been sued nor cast in judgment. [The defendant/third-party plaintiff's] indemnity right was conditional because it depended on the [plaintiffs'] action; it was contingent because it depended on the outcome of that principal demand. Although cracks in the [plaintiffs'] brick veneer may have established a cause of action for the homeowners, it did not create a cause of action for [defendant's] third-party claim because that action depends on the [plaintiffs] seeking judicial enforcement of their claim. Until [the defendant] has been cast in judgment, it has not suffered damages that can be recovered from [the third-party defendant] through indemnity because liability has not been established. Therefore, [the defendant/third-party plaintiff's] indemnification right was conditional and incomplete when the [plaintiffs] filed suit against the company. For these reasons, we find [the defendant/third-party plaintiff's] right to indemnification was not vested when the 2003 amendment to La. R.S. 9:2772 became effective. Therefore, the five-year peremptive period established by the amendment applies to this matter, and [the defendant/third-party plaintiff's] third-party demand against [the third-party defendant] is perempted.

Id. at 1287-88.

In conclusion, the court stated:

La. R.S. 9:2772, which established a five-year peremptive period for actions involving construction defects, became effective on August 15, 2003. More than three years later, [in 2006, the defendant] filed a third-party demand seeking indemnification from [the third-party defendant]. Because the peremptive period began when the [plaintiffs] occupied the residence in 1997, [the defendant's] claim was perempted [in 2002] before its cause of action arose. Accordingly, the court of appeal's ruling is reversed, and the judgment of the trial court is reinstated.

Id. at 1288.

The following year, La.Acts 2012, No. 762, § 1, S.B. 258, 2012 Reg. Sess. (La.2012), enacted La.R.S. 9:2772(A)(1)(c)"to authorize the filing of certain contribution, indemnity or third-party claims." The Resume Digest for Senate Bill 258 actually quoted from Paragraph (B) when it stated:

Prior law provided that a five-year peremptive period extends to every demand arising under the prior law, whether brought by direct action or for contribution or indemnity or by third party practice, and whether brought by the owner or by any other person.
New law adds an exception that if, within 90 days of the five-year peremptive period, a claim is brought against any person or entity included in the prior law, then that person or entity has 90 days from date of service of the main demand or, in the case of a third-party defendant, 90 days from service of process of the third-party demand, to file a claim for contribution, indemnity or a third-party claim against any other party.

Accordingly, prior to the 2012 enactment of Subparagraph (A)(1)(c), there was no exception to the five-year peremptive period for third-party demands, even though Paragraph (C) had been in existence since 1964. Act 2012 also added at the beginning of Subparagraph (B)(3) of La.R.S. 9:2772, "Except as otherwise provided in Subsection A of this Section, this" which had previously stated, "This peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice, and whether brought by the owner or by any other person." The added language clarifies that no other exception, except the newly enacted (A)(1)(c) would apply to third-party demands.

The cases cited by Fenstermaker appear to be the only cases addressing Paragraph (C), and those cases are wholly distinguishable. Contrary to Fenstermaker's assertion, there have not been "consistent" applications by the courts of Paragraph (C). There have been three cases in thirty-three years, beginning in 1985, and all of the decisions occurred before Ebinger in 2011 and before the 2012 amendments enacting Subparagraph (A)(1)(c). As stated by GLC, the incident at issue in Klein v. Allen , 470 So.2d 224 (La.App. 4 Cir. 1985), was a single injury arising from a bank renovation wherein the bank door caused personal injury to the plaintiff in the ninth year after acceptance of the work, and about two months before peremption. There, the plaintiff filed suit about one month after peremption, but the court applied Paragraph (C) to find the plaintiff's action timely. The fourth circuit also found the bank's third-party demand against the contractor timely where the bank's filing date was exactly one year after the plaintiff's injury date. That finding would be impermissible under the current statute. Further, the fourth circuit court applied La.Code Civ.P. art. 1067 to find the remaining third party demands timely, which we believe to have been an impermissible extension of the peremption period of La.R.S. 9:2772, even in 1985.

Also cited by Fenstermaker is Sinnett v. Hilton Riverside LLC , 09-5631, 2011 WL 1703719 (E.D. La. May 3, 2011), where the plaintiff sustained a single injury while attempting to use the shower seat in the hotel room. Sinnett was also decided prior to Ebinger in July 2011, and prior to the 2012 enactment of La.R.S. 9:2772(A)(1)(c). In fact, in 2011, Ebinger , 65 So.3d 1279, reversed this court's decision in Ebinger v. Venus Construction Corporation , 10-194 (La.App. 3 Cir. 10/6/10), 48 So.3d 375, wherein we erroneously found that the defendant's right of action for a third-party demand vested simultaneously with the plaintiff's injury. Sinnett referenced the reversed Ebinger case and followed that reasoning but found the third-party demand untimely in Sinnett because it was filed more than one year after the plaintiff's injury. Sinnett provides no authority for the case before us.

Nor does Fenstermaker's last case support its position.

In re Katrina Canal Breaches Litigation , 05-886, 2006 WL 3627749 (E.D. La. December 8, 2006), is an earlier unreported case that did not even involve a third-party demand. That was a direct-action case where the work was completed on May 26, 2000, and the event causing injury to the plaintiffs occurred on August 29-30, 2005, more than five years after completion of the levy walls. The court stated, "When a statute is clearly peremptive such as the one at issue, a cause of action is extinguished if the injury has not yet occurred."

Accordingly, we find no manifest error or legal error in the trial court's interpretation of "the injury" as the ongoing deterioration that began before the fifth year after the City recorded its acceptance of the work. We further clarify that Paragraph (C) does not apply to Fenstermaker because Fenstermaker has not yet suffered damages for which it can recover under (C); and it did not file its third-party demand timely under the only Subparagraph authorizing such filing, La.R.S. 9:2772(A)(1)(c).

V.

CONCLUSION

Based upon the foregoing, the trial court's judgment granting GLC's exception of peremption is affirmed. Costs of this appeal are assessed to the defendant, C. H. Fenstermaker & Associates, L.L.C.

AFFIRMED.

      Louisiana Revised Statutes 9:2772, entitled "Peremptive period for actions involving deficiencies in surveying, design, supervision, or construction of immovables or improvements thereon," provides in pertinent part as follows:
      A. Except as otherwise provided in this Subsection, no action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable property which may include, without limitation, consultation, planning, designs, drawings, specification, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought against any person performing or furnishing land surveying services, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1 :
      (1)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner.
      (b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than five years after the improvement has been thus occupied by the owner.
      (c) If, within ninety days of the expiration of the five-year peremptive period described in Subparagraph (a) of this Paragraph, a claim is brought against any person or entity included within the provisions of this Subsection, then such person or entity shall have ninety days from the date of service of the main demand or, in the case of a third-party defendant, within ninety days from service of process of the third party demand, to file a claim for contribution, indemnity or a third-party claim against any other party.
      ....
      B. (1) The causes which are perempted within the time described above include any action:
      (a) For any deficiency in the performing or furnishing of land surveying services, as such term is defined in R.S. 37:682, including but not limited to those preparatory to construction or in the design, planning, inspection, or observation of construction, or in the construction of any improvement to immovable property, including but not limited to any services provided by a residential building contractor as defined in R.S. 37:2150.1(9).
      (b) For damage to property, movable or immovable, arising out of any such deficiency.
      (c) For injury to the person or for wrongful death arising out of any such deficiency.
      ....
      (3) Except as otherwise provided in Subsection A of this Section, this peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice, and whether brought by the owner or by any other person.
      C. If such an injury to the property or to the person or if such a wrongful death occurs during the fifth year after the date set forth in Subsection A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury, but in no event more than six years after the date set forth in Subsection A, even if the wrongful death results thereafter.

      City of Youngsville v. C.H. Fenstermaker and Associates, L.L.C. , writ application, No. 16-431, denied as to Fenstermaker's exception of peremption (La.App. 3 Cir. 9/26/16), --- So.3d ----.

      Paragraph (C) of La.R.S. 9:772 was part of the 1964 version, and its only revisions were in 1999, which reduced the extended period from eleven to eight years; and again in 2003, which reduced the extended period from eight to six years.

      See Peck v. Richmar Construction, Inc. , 13-1170 (La.App. 1 Cir. 2/26/14), 144 So.3d 1042, writ denied , 14-830 (La. 6/20/14), 141 So.3d 810, following the Louisiana Supreme Court's reasoning in Ebinger and refusing to apply La.Code Civ.P. art. 1067, a general statute, to extend the time for filing a third-party demand under La.R.S. 9:2772before the 2012 enactment of Subparagraph (A)(1)(c) (found that La.R.S. 9:2772(A)(1)(c) changed the law and was intended to avoid the result reached in Ebinger in cases which arise in the future); "Louisiana Revised Statute 9:2772(A)(1)(c) now affords a defendant a period of ninety days from service of process to file a claim for contribution or indemnity. However, the amended version of the statute does not apply herein." Peck , 144 So.3d at 1049-50.


source: Caselaw Access Project

author: KYZAR, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jose Isreal AYALA, III
    17-1042
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018
    Peggy J. Sullivan, Louisiana Appellate Project, P.O. Box 2806, Monroe, LA 71207-2806, (318) 855-6038, COUNSEL FOR DEFENDANT/APPELLANT: Jose Isreal Ayala, III
    Asa Allen Skinner, District Attorney, Terry Wayne Lambright, First Assistant District Attorney, 30th Judicial District, P.O. Box 1188, Leesville, LA 71446-1188, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and Van H. Kyzar, Judges.
   KYZAR, Judge.

The Defendant, Jose Isreal Ayala, III, appeals his sentence imposed following a guilty plea to the offense of aggravated escape, entered pursuant to a plea agreement with the State of Louisiana. For the reasons assigned, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 3, 2015, the State filed a bill of information charging Defendant with attempted aggravated escape, a violation of La.R.S. 14:110(C) and La.R.S. 14:27, and three companion charges. The charges proceeded under trial court docket number 87,354. Defendant was also charged under a separate docket number with second degree murder and obstruction of justice, though the matters were not consolidated with the instant case. On April 27, 2017, Defendant entered a plea of guilty pursuant to a plea agreement with the State to aggravated escape in addition to a charge of manslaughter, reduced from an original indictment for second degree murder, and obstruction of justice, in cases proceeding under the other docket number, 86,777. The three companion charges from the bill of information in docket number 87,354 that included the aggravated escape charge were dismissed as part of the plea agreement.

The following factual recitation by the prosecutor appears in the record:

BY MR. MASON:
Yes, Your Honor, may it please the court, the State contends that, on or about September 2nd of 2014, Deputy Dalme of the Vernon Parish Sheriff's Office was returning an inmate to S-Cell 1, located at the Vernon Parish Jail at 203 South 3rd Street, Leesville, Vernon Parish, Louisiana. After returning the inmate to his cell, Deputy Dalme proceeded to S-Cell 2 to escort an inmate by the name of "Griffin" to the front office for his nightly glucose check. Upon opening S-Cell 2, defendant, Jose Ayala, struck Deputy Dalme multiple times in the face and intentionally departed from S-Cell 2 and from the custody of Deputy Dalme and ran toward the front of the jail. The defendant, thereafter, entered the main office of the jail and rushed Deputy Tom Scott, who was seated in the office. The defendant then proceeded to yell profanities at Deputy Scott and started striking the deputy on the side of his face and the back of his head using a closed fist. As a result of the attack, Deputy Scott fell from his chair onto the floor, at which time the defendant continued to strike Deputy Scott in the face until Deputy Dalme was able to return to the main office and assist Deputy Scott in pushing the defendant and inmate Griffin out of the office and into the hallway. Once Deputy Dalme returned and was in the office with Deputy Scott, Deputy Dalme observed Jose Ayala with a set of jail keys attempting to open the gate between Bullpen 2 and Bullpen 4. Deputy Dalme yelled commands to the defendant and at Griffin to return to their cells, at which time they retreated slowly. Thereafter, other agents, law enforcement arrived and secured the defendant and the inmate, Griffin, in their cells. As a result of this incident, Deputy Dalme suffered injury and Deputy Scott suffered severe injuries to his face and to his head that resulted in treatment by the hospital and physicians located there. And, Your Honor, also, with regards to this, the State's recitation of facts, the State would also move to incorporate all discovery responses filed by the State and the suit record in its entirety.

On June 29, 2017, the district court sentenced Defendant to ten years at hard labor for aggravated escape, to be served consecutively to his other sentences and to be served without benefit of parole. A written motion to reconsider sentence was filed on July 7 and denied by the trial court on July 12. Defendant now seeks review of the ten-year sentence imposed herein.

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 that there is a possible error patent concerning the offense to which Defendant pled guilty and an error patent involving the sentence imposed.

Defendant was originally charged in this docket number with four counts, all felonies. In the bill of information, Defendant was charged with attempted aggravated escape in "Count 1", that "on or about September 2, 2014, defendant did intentionally attempt to depart from legal custody under circumstances wherein human life was endangered, in violation of R.S. 14:110.C. (Felony)." Defendant indeed understood that charge to be attempted aggravated escape as reflected in a Motion for Preliminary Examination and Bond Reduction wherein he alleged, "The defendant has been charged herein with Attempted Aggravated Escape, Taking Contraband To & From Penal Institutions, two (2) counts Battery of a Correctional Facility and has not been indicted by a Grand Jury." On April 27, 2017, Defendant entered a plea of guilty, pursuant to a plea agreement, to the completed offense of aggravated escape. However, at no time did the State move to amend the bill of information to upcharge Defendant from the original attempt count. While it is clear that a "defendant, with the consent of the district attorney, may plead guilty to a lesser included offense to the offense charged in the indictment" without any formal amendment to the information or indictment as per La.Code Crim.P. art. 558, and that "the district attorney shall not be required to file a new indictment to charge the crime to which the plea is offered" when the defendant pleads to a non-responsive charge as per La.Code Crim.P. art. 487(B), Defendant here pled guilty to the completed offense of aggravated escape, not the lesser included offense, and there was no amendment of the bill of information. While a "trial judge is not without jurisdiction to accept a defendant's knowing and voluntary guilty plea simply because the plea is not responsive to that charged in the bill of information and the district attorney has not amended the bill to conform to the plea" and we are no longer required to view such as an error patent, this does not "alter the fundamental requirement that prosecution be properly instituted by bill of information that informs the accused of the nature of the accusations against him nor does it alter the requirement that a defendant's guilty plea be voluntarily and intelligently made" as a "nonresponsive guilty plea made without an amended bill might raise the concern that a defendant did not understand the nature of the charges against him." State v. Jackson , 04-2863, p. 14 (La. 11/29/05), 916 So.2d 1015, 1023.

The state of the record herein requires us to ascertain whether Defendant actually entered the plea of guilty to aggravated escape or whether it was intended to be a plea of guilty to the originally charged offense of attempted aggravated escape. The consequence matters greatly here, as the penalty imposed on Defendant was ten years, the maximum sentence for the completed offense, whereas the maximum penalty for an attempted aggravated escape is only five years. La.R.S. 14:27.

At sentencing, the trial court alluded that Defendant was being sentenced for attempted aggravated escape, stating, "Now, to the, uh, to the sentencing itself, .... In 87,354, the attempted aggravated escape, while he was incarcerated" and later stated that, "He never did make it out of the jail. Thus, the-the-the-the charge-but it doesn't matter if he did, or not, the simple escape started when he jumped on the deputy and he left that cell without any approval from anyone". Despite this wording, the trial court went on to impose the maximum sentence for aggravated escape. In addition, the minutes of court refer to the original "Count 1" charge in this matter on multiple occasions as simple escape.

A review of the record from Defendant's plea entered on April 27, 2017 reflects that Defendant in fact pled guilty to the completed offense of aggravated escape after being fully advised of the correct charge and the maximum sentence for the completed charge.

BY THE COURT:
Okay, lastly, under Number 87,354, the-the charge of aggravated escape, under Title 14, Section HOC, reads: "Aggravated escape is the intentional departure of a person from the legal custody of any officer of the Department of Public Safety and Corrections or any law enforcement officer or from any place where such person is legally confined when his departure is under circumstances wherein human life is endangered." Do you understand those elements?
A. I understand, Your Honor
Q. And the penalty provisions there are-
BY MR. MASON:
And, Your Honor, those would be in paragraph C (2).
BY THE COURT:
C (2), yes.
Q. Whoever commits an aggravated escape is herein defined-as herein defined, shall be imprisoned at hard labor for not less than five years or more than ten years and any sentence on this offense shall not run concurrent with any other sentence. Do you understand that?
A. I understand, Your Honor.
Q. And that means that, in this case, on the three charges I would sentence you on, I have to run the sentence I give you on the aggravated escape consecutive to the other two sentences. You understand that?
A. I understand, Your Honor.
Q. All right, sir. Now, you heard your attorney cite what the agreement is. You'd plead to the lesser charge of manslaughter. You would plead to the charge of obstruction as charged, and you would plead to the charge of aggravated escape. In return, the State agrees to accept your plea to the lesser charge of manslaughter and to dismiss Counts 2, 3, and 4 on Bill of Information Number 87,354. Is that correct, sir?
A. That's correct, Your Honor.
Q. All right. Did they or did I leave anything out that you have been led to believe is part of the deal?
A. No, Your Honor.
Q. We've covered it completely?
A. Yes, Your Honor.

The trial court fully advised Defendant of the nature of the charge of aggravated escape and the penalty therefor, his constitutional rights in connection with his plea, and found that Defendant knowingly and voluntarily waived his rights in compliance with Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Additionally, we find there was no misunderstanding as to the actual charge being pled to pursuant to the plea agreement considering the transcript from the plea itself, and further considering the affidavit of understanding of rights and nature of the plea that was executed and filed contemporaneously with the plea indicating that Defendant was pleading to the completed offense of aggravated escape. See State v. Readoux , 614 So.2d 175 (La.App. 3 Cir. 1993). Thus, we conclude that Defendant entered a knowing, intelligent and voluntary plea to aggravated escape as per the plea agreement and was sentenced for the completed offense.

We do, however, find that Defendant received an illegally excessive sentence for aggravated escape in this case, though this error likewise does not require a reversal and remand. Defendant was sentenced to serve ten years at hard labor without benefit of probation, parole, or suspension of sentence. Louisiana Revised Statutes 14:110 does not require that the sentence be served without benefit of probation, parole, or suspension of sentence. This in and of itself does not require the reversal of the sentence. As stated by this court in State v. Hurst , 10-1204, pp. 5-6 (La.App. 3 Cir. 4/13/11), 62 So.3d 327, 332, writ denied , 11-975 (La. 10/21/11), 73 So.3d 383 :

The trial court imposed an illegally excessive sentence on the conviction of purse snatching. The trial court sentenced Hurst to twenty years at hard labor without the benefit of probation, parole, or suspension of sentence. Louisiana Revised Statutes 14:65.1 does not prohibit the benefits of probation, parole, or suspension of sentence. Although the trial court has discretion to refuse to suspend the sentence, the trial court does not have discretion to deny parole eligibility when the penalty provision does not authorize such a denial. Accordingly, this court amends Hurst's sentence to delete the denial of parole. See State v. Yancy , 93-2798 (La. 5/31/96), 673 So.2d 1018 ; State v. Buckley , 02-1288 (La.App. 3 Cir. 3/5/03), 839 So.2d 1193. See also State v. Sanders, 04-17 (La. 5/14/04), 876 So.2d 42 (stating that an appellate court should not rely on the self-activating provisions of La.R.S. 15:301.1 when the trial court imposes limits beyond those statutorily authorized). This court also instructs the trial court to make an entry in the minutes reflecting this change. See State v. Tate , 99-1483 (La. 11/24/99), 747 So.2d 519.

Accordingly, Defendant's sentence will be amended to delete the denial of parole eligibility, and the trial court is instructed to make an entry in the court minutes and on the commitment order reflecting this change.

ASSIGNMENT OF ERROR

Defendant asserts that his ten-year sentence is excessive. Pursuant to La.R.S. 14:110, this is the maximum sentence for aggravated escape.

To find that a sentence is excessive, this court must conclude that the penalty is so grossly disproportionate to the severity of the crime as to shock the sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La. 1981) ; State v. Everett , 530 So.2d 615 (La.App. 3 Cir. 1988), writ denied , 536 So.2d 1233 (La. 1989). In light of the criteria expressed by Article 894.1, a review for excessiveness of an individual sentence should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Lewis , 489 So.2d 1055, 1061 (La.App. 1 Cir.), cert denied , 493 So.2d 1218 (La. 1986).

State v. Texada , 98-1647, pp. 19-20 (La.App. 3 Cir. 5/5/99), 734 So.2d 854, 865.

Sentences falling within statutory sentencing ranges may still be unconstitutionally excessive if they shock the sense of justice or make no meaningful contribution to acceptable penal goals. Several factors may be considered when reviewing such a sentence for excessiveness:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith , 99-0606 (La. 7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste , 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958.

State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061.

In pronouncing the sentence for the aggravated escape charge herein, the district court stated:

Now, to the, uh, to the sentencing itself, ....
In 87,354, the attempted aggravated escape, while he was incarcerated, after his arrest on this charge, he, uh, he and other-another inmate was [sic] able to obtain the presence of Deputy Dalme in the cell and this defendant jumped on the deputy, struck him repeatedly, caused some injuries and then he made his way out of the cell towards the front area of the jail towards the office area and he was confronted by Deputy Scott, who he then got into a fight with and injuries resulted from that to the deputy. He never did make it out of the jail.
Thus, the-the-the-the charge-but it doesn't matter if he did, or not, the simple escape started when he jumped on the deputy and he left that cell without any approval from anyone. And, quite frankly, that's-that's what we have here. Now, the plea agreement and there was one in all these cases of-of different-different plea agreements, but in this case, he was charged with second degree murder. He entered a plea to a lesser included charge of manslaughter, and the State agreed to accept that. He also agreed to plead to Count 2, the obstruction of justice, and the other bill of information concerning the escape. Uh, the State dismissed Counts 2, 3, and 4, other charges contained in eight-87,354, and, uh, he-he has benefitted substantially from the plea agreement. Instead of a life sentence, which is mandatory for second degree murder, his exposure now is less on each of these charges. Uh and-and, so, there's substantial benefit here from this, uh, and that's some of the things that the court has considered. As I said, there are numerous letters from the victim's family and friends, uh, and I did read those documents I referred to from Mr. Ayala and also a-the expandable folder-folder of things including statements given by other witnesses, as I noted, some of whom Mr. Ayala noted or referred to or referenced in his-in his letter to the court in the attachments. I see no substantial grounds which would tend to excuse his criminal conduct, and this is-these are factors under Article 894.1 of the Code of Criminal Procedure. He's young, he's 27 years of age. He served in the United States Army, he was an M. P. at one time. He is single. He's in good health. He was discharged from the United States Army after he had been, on multiple times, found to be using or-or-or have possession of marijuana. And, uh, one would think that an M.P., first of all, would know the consequences of that and, certainly, one would think that if he got hit the first time with punishment for an infraction, he would not do it again but, ultimately, he did, and the Army gave him a general discharge. He received his G.E.D., uh, high school education G.E.D. in 2009. He admitted to the use of alcohol, marijuana, and cocaine in the past. While in the United States Army, in 2012, he had counseling or treatment for his marijuana problem. He had a prior record in that there are three convictions for marijuana use in the United States Army. He has no convictions in the civilian arena.

Although the trial court sentenced Defendant to the maximum term of ten years for aggravated escape, Defendant received a substantial benefit by his plea agreement with the State, that included the reduction of a second degree murder charge to manslaughter in another case, and the benefit of the dismissal of other charges filed within trial court docket number 87,354 in the instant case, including two counts of battery on a correctional facility employee, and introduction of contraband into a penal facility, all felony offenses. Indeed, the maximum sentencing exposure faced by Defendant prior to the plea agreement was life, without the possibility of parole for second degree murder, plus sixty-five years in prison, twenty-five of which would be required to run consecutively to the other sentences.

Generally, maximum sentences are reserved for the most serious violation of the offense and the worst type of offender. State v. Russell , 42,479 (La.App. 2 Cir. 9/26/07), 966 So.2d 154, 156, writ denied , 07-2069 (La. 3/7/08), 977 So.2d 897. However, "where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense." State v. Falcon , 44,829, p. 4 (La.App. 2 Cir. 10/28/09), 26 So.3d 172, 175.

State v. Herbert , 12-228, pp. 5-6 (La.App. 3 Cir. 6/13/12), 94 So.3d 916, 920, writ denied , 12-1641 (La. 2/8/13), 108 So.3d 78.

In the instant case, the trial court gave extensive reasons for the sentence imposed and thoroughly considered, as required by La.Code Crim.P. art. 894.1, the background of Defendant, the circumstances surrounding the aggravated escape charge, including the facts presented that two deputies were injured in the crime, with one suffering serious face and head injuries, the benefit received by Defendant from the reduction of the second degree murder charge to manslaughter in the overall plea agreement with the State, and the dismissal of three other felony charges pending. Considering this, we do not find the maximum sentence imposed for aggravated escape to be excessive.

DECREE

For the reasons herein, we affirm Defendant's sentence of ten years at hard labor with the Louisiana Department of Corrections, to run consecutively to the other sentences Defendant is ordered to serve. However, we amend the sentence to reflect that Defendant is entitled to the benefit of parole eligibility, and the trial court is instructed to make an entry in the court minutes and on the commitment order reflecting this change.

AMENDED AND AFFIRMED.

      The bill of information referenced the underlying crime statute but did not reference the attempt statute, La.R.S. 14:27.

      The Motion to Reconsider Sentence bears both trial court docket numbers.

      Defendant's charges and sentences under docket numbers 87,354 and 86,777 were addressed together at the plea hearing and the sentencing hearing. Defendant has also appealed his sentences in 86,777. As the cases were not consolidated, the appeals bear two docket numbers with this court: 17-1041 and 17-1042.

      The bill does not contain the statutory citation for attempt, La.R.S. 14:27. However, as will be discussed in this opinion, the omission did not mislead Defendant to his prejudice. La.Code Crim.P. art. 464. Defendant understood he was charged with attempt and he knowingly and intelligently pled guilty to the completed offense pursuant to a plea agreement.

      When there is a conflict between the transcript and the minutes, the transcript prevails. State v. Salameh , 09-1422, p. 3 (La.App. 3 Cir. 5/5/10), 38 So.3d 568, 569.

      Defendant's heading in brief indicates there are two assignments of error, and the State responds in kind. However, there is essentially one argument addressing two sub-issues. Defendant did not assert that the sentence was excessive as having been ordered to be served without benefits.

      La.R.S. 14:110 requires that the sentence run consecutively to any other sentence imposed.

      Although the trial court stated the charge was attempted aggravated escape, Defendant in fact pled guilty to aggravated escape as addressed above.

      La.R.S. 14:130.1, Obstruction of Justice, provides for a maximum of forty years in prison. La.R.S. 14:34.5 provides a maximum sentence of five years, which must be imposed consecutively to any other sentence. La.R.S. 14:402 provides for a maximum penalty of five years for a violation of section E thereof, to be run consecutively with any other sentence.


author: Judge Edwin A. Lombard

text:
    STATE of Louisiana v. Albert LEWIS
    NO. 2017-KA-0651
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 18, 2018
    Leon Cannizzaro, District Attorney, Donna Andrieu, Assistant District Attorney, Chief of Appeals, Christopher J. Ponoroff, Assistant District Attorney, Parish of Orleans, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA
    Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, P. O. Box 4015, New Orleans, LA 70178-4015, COUNSEL FOR DEFENDANT /APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown )
   Judge Edwin A. Lombard

The defendant, Albert Lewis, appeals his sentence to life imprisonment with possibility of parole. After review of the record in light of the applicable law and arguments of the parties, the defendant's sentence is affirmed.

Relevant Facts and Procedural History

In 1976, the defendant and his co-defendant, Kenneth R. Smith, were convicted of the second degree murder of Maria Digiovani. The defendant, seventeen years old at the time of the offense (which took place on July 13, 1976 ), was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence for forty years.

Based on an errors patent review, the convictions and sentences of the defendant and his co-defendant were initially affirmed by per curiam opinion. State v. Lewis , 413 So.2d 513 (La. 1982) (table). Subsequently, both defendants were granted an out-of-time appeal and their convictions and sentences were affirmed by this Court. State v. Smith , 623 So.2d 942 (La. App. 4 Cir. 1993). As recited in that opinion, the underlying facts of this case are as follows:

On the morning of July 30, 1976, the body of 74 year old Maria DiGiovanni was found in the bedroom of her home at 1414 Mandeville Street. The apartment was in disarray. The bathroom window was broken and the telephone wire to the receiver was cut.
An autopsy revealed Ms. DiGiovanni was strangled, stabbed over 100 times in the face, shoulder and abdomen, received injuries to her face including black eyes and missing teeth, a broken breastbone and broken ribs, lacerations to her vagina and a head injury so severe that one of her ears was nearly severed. The head injury contained small pieces of metal which matched an aluminum wrapped brick found in the apartment. In addition, a wooden handle with a broken piece of metal on the end was found deep inside her vagina.
Vaginal samples were positive for spermatozoa. Ms. DiGiovanni had type "O" blood. Seminal fluid found on her nightgown and inside her vagina came from a type "B" blood type secretor. Kenneth Smith's blood type is "O". Albert Smith's blood type is "B".
The murder investigation revealed that Ms. DiGiovanni had recently purchased a large color television set which was missing from the apartment. After receiving a telephone call from Smith's sister, Smith and Lewis became the prime suspects in the murder. Both were arrested and taken to police headquarters. There they both waived their rights and gave written statements admitting to the murder.

Smith , 623 So.2d at 943.

In addition, both defendants' fingerprints were found inside Ms. DiGiovanni's residence and items belonging to her were found at the residences of Smith and his girlfriend.

On June 25, 2012, the United States Supreme Court held the Eighth Amendment forbids a sentencing scheme that mandates a life sentence without the possibility of parole for juvenile offenders and that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders. Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Notably, Miller did not establish a categorical prohibition against life sentences without parole for juvenile homicide offenders; rather, Miller required the sentencing court to consider certain factors, including the offender's youth, before deciding whether to impose life with or without parole. In 2013, the Louisiana Legislature implemented Miller by enacting La. Code Crim. Proc. art. 878.1 and La. Rev. Stat. 15:574.4(E). The Louisiana Supreme Court initially held that Miller was not retroactively applicable, State v. Tate , 2012-2763 (La. 11/5/13), 130 So.3d 829, but that decision was ultimately overruled by the United States Supreme Court's determination that the Miller decision was a new substantive rule of constitutional law and, therefore, retroactively applicable to cases on collateral review as it rendered a certain penalty unconstitutionally excessive for a category of offenders. Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (reversing State v. Montgomery , 2013-1163 (La. 6/20/14), 141 So.3d 264 ). Accordingly, the Louisiana Supreme Court instructed the lower courts that, absent new legislation to the contrary, La. Code Crim. Proc. art. 878.1 and La. Rev. Stat. 15:574.4(E) were applicable to resentencing hearings conducted on collateral review of juvenile homicide defendants sentenced prior to Miller to determine parole eligibility should be granted or denied.

The Court explained:

Article 878.1 requires the District Court to conduct a hearing "[i]n any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense ... to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E)." La. R.S. 15:574.4(E) then provides the conditions under which any person serving a sentence of life imprisonment for first or second degree murder committed under the age of 18 can become parole eligible, provided a judicial determination has been made the person is entitled to parole eligibility pursuant to Article 878.1.

State v. Montgomery , 2013-1163, pp. 2-3 (La. 6/28/16), 194 So.3d 606, 607.

Meanwhile, the defendant in this case filed a motion to correct illegal sentence based on Miller but, because it had not yet been determined that Miller applied retroactively to cases on collateral review, it was initially denied. Ultimately, however, counsel was appointed to represent the defendant and a Miller resentencing hearing was held on September 16, 2016. After the parties' preliminary statements, the trial court conducted an on-the-record review of the defendant's disciplinary history from the Department of Corrections. The defendant testified as did his nephew, Lest Williams, who affirmed that he had visited the defendant while incarcerated and observed a positive spiritual change in him. At the conclusion of the hearing, the trial court sentenced the defendant to life imprisonment with parole pursuant to La. Code Crim. Proc. art. 878.1.

Thereafter, the Louisiana Supreme Court issued a per curiam in State ex rel. Lewis v. State , 2016-1908 (La. 1/9/17), 208 So.3d 882, remanding the matter to the district court to grant the defendant an out-of-time appeal from his resentencing and to appoint appellate counsel to assist him in that endeavor. Appellate counsel was appointed but filed an Anders brief and a motion to withdraw in this court. The defendant filed a supplemental pro se brief with assignments of error on February 7, 2018.

Errors Patent Review

By his sole counseled assignment of error, the defendant requests a review of the record for errors patent . Counsel's detailed review of the procedural history and the facts of the case indicate a thorough review of the record and, as noted by counsel, the issues raised by the defendant in his motion to correct illegal sentence have been addressed and found to be without merit by numerous courts in this state. As such, appellate counsel has complied with the procedures outlined by Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin , 573 So.2d 528 (La. App. 4 Cir. 1990). Because counsel's finding, based on a conscientious review of the record, that there are no non-frivolous issues for appeal has merit, the motion to withdraw is granted.

Supplemental Pro Se Assignment of Error 1

The defendant argues that both his re-sentencing and appellate counsel rendered ineffective assistance of counsel because neither challenged the application of La. Code Crim. Proc. art. 878.1 to his resentencing. With citation to State v. Tate , the defendant argues that Article 878.1 cannot be applied retroactively because it was not in force at the time his crime was committed. Relying upon the principles of State v. Craig , 340 So.2d 191 (La. 1976), the defendant argues that he should be resentenced to the most serious penalty for the next lesser included offense, manslaughter.

For a number of reasons, defendant's argument pursuant to Tate is without merit. In overruling Tate , the Montgomery court found that Miller was to be given retroactive effect, thereby allowing those defendants sentenced to life without parole prior to the Miller decision, the opportunity to be resentenced to life with parole under Miller . Because La. Code Crim. Proc. art. 878.1 codifies the Miller rule, it necessarily applies retroactively to sentences imposed prior to Miller .

Also, Montgomery itself stated that permitting juvenile homicide offenders to be considered for parole was an appropriate remedy for a Miller violation:

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g. , Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.

Montgomery v. Louisiana , 136 S.Ct. at 736.

Furthermore, the so called Craig solution advocated by the defendant has been repeatedly rejected, as succinctly explained in State v. Plater , 51, 338 (La. App. 2 Cir. 5/17/17), 222 So.3d 897 :

In State v. Craig , 340 So.2d 191, 193-94 (La. 1976), the Louisiana Supreme Court held that the mandatory death sentence for aggravated rape was unconstitutional and that the appropriate remedy to correct an illegal sentence was to remand the case for resentencing of the defendant to the most serious penalty for the next lesser included offense.
However, in State v. Shaffer , 11-1756 (La. 11/23/11), 77 So.3d 939, the Louisiana Supreme Court took a different approach. There, in consolidated writ applications, three defendants sought relief from their life sentences following their convictions for aggravated rape committed while juveniles after the United States Supreme Court held that the Eighth Amendment precludes sentencing a juvenile to life imprisonment without the possibility of parole for a non-homicide offense in Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The Louisiana Supreme Court rejected the defendants' argument that they should be sentenced under the lesser included offense of attempted aggravated rape as was done in State v. Craig, supra . Instead of remanding the cases for resentencing, the supreme court amended the defendants' life sentences to delete the restriction on parole eligibility. See also State v. Leason , 11-1757 (La. 11/23/11), 77 So.3d 933.
Further, this Court, along with several other circuits, has rejected the claim that juvenile homicide defendants should be sentenced under the manslaughter statute. See State v. Williams , 50, 060 (La. App. 2 Cir. 9/30/15), 178 So.3d 1069, writ denied , 15-2048 (La. 11/15/16), 209 So.3d 790 ; State v. Williams , 15-0866 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, writ denied , 16-0332 (La. 3/31/17), 217 So.3d 358, 2017 WL 1315822 ; State v. Jones , 15-157 (La. App. 5 Cir. 9/23/15), 176 So.3d 713 ; State v. Graham , 14-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied , 15-1028 (La. 4/8/16), 191 So.3d 583.

Plater, 51, 338, pp. 4-5, 222 So.3d at 901.

This assignment of error is without merit.

Supplemental Pro Se Assignment of Error 2

Pursuant to State v. Dorthey , 623 So.2d 1276 (La. 1993), the defendant asserts that the trial court erred by failing to impose a sentence below the statutory minimum. The defendant argues that a downward departure is warranted because he is fifty-nine years old, suffers from glaucoma, and has been rehabilitated. The record indicates, however, that the defendant did not file a timely motion to reconsider sentence. La. Code Crim. Proc. art. 881.1 provides in pertinent part:

A. (1) Within thirty days following the imposition of sentence ... the defendant may make or file a motion to reconsider sentence.
(2) The motion ... shall set forth the specific grounds on which the motion is based.
* * *
D. Failure to make or file a motion to reconsider sentence ... shall preclude ... the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Because the defendant failed to file a timely motion to reconsider sentence, he is precluded from challenging the trial court's failure to impose a sentence below the statutory minimum. State v. Mims , 619 So.2d 1059 (La. 1993) ; La. Code Crim Proc. art. 881.1.

Moreover, even under the guise of an ineffective assistance of counsel claim, the defendant fails to demonstrate prejudice. We find nothing in the record that suggests the defendant in this case "is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case." State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, 676 (citation and internal quotation marks omitted). Accordingly, the defendant's life sentence with benefit of parole is not inappropriate. This assignment of error is without merit.

Conclusion

For the foregoing reasons, we affirm the defendant's sentence and grant counsel's motion to withdraw.

SENTENCE AFFIRMED; MOTION GRANTED.

      The screening action form states that the defendant's birthdate is 1/29/1958, indicating that the defendant was eighteen years old at the time of the offense; however, at the re-sentencing hearing, it was uncontested that defendant was seventeen years old at the time of the offense.

      Life without parole did not become the designated sentence for second degree murder until 1979. Acts 1979, No. 74, § 1. The defendant is not eligible for parole absent resentencing, however, because La. Rev. Stat. 15:574.4(B) provides that no prisoner serving a life sentence shall be eligible for parole consideration until that sentence has been commuted to a fixed number of years. See generally Bosworth v. Whitley, 627 So.2d 629 (La. 1993).

      Without comment, the State suggests that defendant's motion was filed on or about April 23, 2013; however, defendant's motion is not contained in the record, and its filing was not documented by a minute entry. Appellant counsel filed a motion to supplement the record to include, among other items, the motion to correct an illegal sentence and the State's response. In response, the Clerk of Court advised that the documents could not be located.

      Under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show that his counsel's performance was deficient and that the deficient performance prejudiced him. With regard to counsel's performance, the defendant must show that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed by the Sixth Amendment. As to prejudice, the defendant must show that counsel's errors were so serious as to deprive the defendant of a fair trial, i.e. , a trial whose result is reliable. Id. , 466 U.S. at 687, 104 S.Ct. 2052. Both showings must be made before it can be found that the defendant's conviction resulted from a breakdown in the adversarial process that rendered the trial result unreliable. Id.


author: Judge Dennis R. Bagneris, Pro Tempore

text:
    Robert G. HARVEY, Sr. v. Allen J. KROUSE, III
    NO. 2017-CA-0937
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 18, 2018
    Donald C. Douglas, Jr., THE DOUGLAS LAW FIRM, LLC, 1070 West Causeway Approach, Suite B, Mandeville, LA 70471, COUNSEL FOR PLAINTIFF/APPELLANT
    Gus A. Fritchie, III, Edward W. Trapolin, IRWIN FRITCHIE URQUHART & MOORE, LLC, 400 Poydras Street, Suite 2700, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE, ALLEN J. KROUSE, III
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dennis R. Bagneris, Pro Tempore)
   Judge Dennis R. Bagneris, Pro Tempore

Appellant, Robert G. Harvey, Sr. ("Harvey"), appeals the judgment of the district court granting summary judgment in favor of defendant, Allen J. Krouse, III ("Krouse"), and dismissing the defamation claims filed by Harvey against Krouse. For the reasons that follow, we find that the judgment of the district court should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

This matter stems from a personal injury suit filed following an automobile accident in December 2014 in which Appellant, Harvey, represented the plaintiff, Antoine M. Saacks, Jr. ("Saacks"). The lawsuit was filed in state court and removed to federal court. Appellee, Krouse, represented the insurance company defendant, Privilege Underwriters Reciprocal Exchange ("PURE"). Following discovery of medical records which suggested to PURE that the plaintiff's claim may have been fraudulent, on December 20, 2016, PURE, through Krouse, sought leave to file an amended answer that alleged, inter alia , that "suspicious circumstances in this case show Plaintiff's intent to defraud PURE in his uninsured motorist claim for ... the accident of December 30, 2014." While the allegations of the amended answer touch on a wide range of alleged failures by Saacks to cooperate with PURE in its claim investigation, they center on the fact that following the accident, in his recorded statement to PURE, Saacks explicitly and unequivocally denied ever having received treatment for his neck or back; however, PURE alleged that subsequent discovery revealed that he had received extensive prior treatment for these injuries, and had brought three prior personal injury lawsuits for similar or even identical injuries, and was represented by Harvey in two of them.

With respect to Harvey, the sole specific allegation states that "at the time PURE requested relevant medical records from [Saacks] concerning his alleged injuries from the December 30, 2014 accident, both [Saacks] and his attorney, Harvey, knew of the existence of these prior lawsuits and pre-existing injuries," that Harvey represented Saacks in two of the prior cases (Spruell and Hawkes ), and that despite their knowledge, Saacks and Harvey failed to tender the requested relevant medical records and concealed the lawsuits involving the same injuries Saacks claimed he sustained on December 30, 2014. Amended Answer, ¶ 7.

On December 27, 2016, Harvey moved to strike the amended answer and for Federal Rule 11 sanctions against Krouse, and on December 28, 2016, filed the instant defamation suit against Krouse and PURE alleging that the statements made by Krouse in the amended answer were defamatory per se , untrue, and made without any probable cause. Subsequent to the filing of the instant defamation suit, on January 18, 2017, the United States Magistrate Judge denied both Harvey's motion to strike and Rule 11 sanctions request, specifically finding that "the amendment was sought simply to conform the pleadings to the evidence that ha[d] been revealed through discovery."

On January 27, 2017, PURE removed the defamation case to federal court, alleging that Krouse was improperly joined and that diversity jurisdiction was present. However, on March 9, 2017, before an answer was filed, Harvey voluntarily dismissed PURE, leaving Krouse, undisputedly a Louisiana citizen, the sole defendant. Accordingly, the matter was remanded to state court.

On March 31, 2017, Krouse filed a "Peremptory Exception of No Cause of Action and Alternative Motion for Summary Judgment." Following a hearing on June 23, 2017, the district court granted Krouse's motion for summary judgment in a judgment entered on September 12, 2017. In so ruling, the district court stated that "upon finding that the statements alleged to be defamatory are protected by the qualified privilege provided by LSA-R.S. 14:49(4), and that the statements were not made about plaintiff herein personally, but in his capacity as disclosed agent for his client, which is clear from the Motion for Leave to Amend Answer filed in the Federal Court proceeding: and upon further finding that there is no evidence that the alleged defamatory statements were made with malice," summary judgment dismissing the claims was granted. This timely appeal followed.

ISSUES PRESENTED FOR REVIEW

On appeal, Harvey contends that the district court erred in the following respects: (1) the motion for summary judgment should not have been considered because it was premature; (2) there was no record evidence introduced at the hearing upon which the district court could base his ruling; (3) plaintiff was not and should not have been required to prove malice; (4) defendant's alleged defamatory statements were not protected by a qualified privilege; and (5) fact issues existed that precluded summary judgment. We address each below.

STANDARD OF REVIEW

We review the district court's decision to entertain the motion for summary judgment for abuse of discretion.

Rivarde v. City of New Orleans , 15-0655, p. 5 (La. App. 4 Cir. 3/9/16), 190 So.3d 400, 403. Our review of the summary judgment itself is de novo. Costello v. Hardy , 03-1146, p. 8 (La. 1/21/04), 864 So.2d 129, 137.

DISCUSSION

Louisiana Code of Civil Procedure article 966 provides that "[a] party may move for a summary judgment for all or part of the relief for which he has prayed.... [and a] defendant's motion may be filed at any time. La. C.C.P. 966(A)(1). "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." Id. at (A)(3).

"The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions."Id. at (A)(4). "For good cause shown, the court may order a continuance of the hearing" on the motion for summary judgment. Id. at (C)(2).

The mover bears the burden of proof. Id. at (D)(1). However, if the mover will not bear the burden of proof at trial on the issue raised by the motion, "the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense." Id. Instead, the mover must "point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." Id. The opponent of the motion then bears the burden of producing "factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

In resolving the motion, "[t]he court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made." Id. at (D)(2). Objections to any documents must be raised in a timely filed opposition or reply memorandum. Id.

Finally, we note that "because of the chilling effect on the exercise of free speech, defamation actions have been found particularly susceptible to summary judgment. Summary adjudication, we have recognized, is a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press." Kennedy v. Sheriff of E. Baton Rouge , 05-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686 (citation omitted).

The motion for summary judgment was not premature.

Harvey argues that Krouse's motion for summary judgment was premature because there was not adequate time for discovery prior to the hearing. However, a defendant's motion for summary judgment "may be filed at any time." La. C.C.P. 966(A)(1). Moreover, "[t]he jurisprudence holds that while parties must be given fair opportunity to carry out discovery and present their claim, there is no absolute right to delay action on [a] motion for summary judgment until discovery is complete." Mitchell v. Valteau , 09-1095, p. 13 (La. App. 4 Cir. 1/27/10), 30 So.3d 1108, 1116 (internal quotations omitted). Our Supreme Court directs that " '[t]he only requirement is that the parties be given a fair opportunity to present their claim. Unless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact.' "

Id. , 09-1095 at p. 14, 30 So.3d at 1116, quoting Simoneaux v. E.I. du Pont de Nemours and Co. , 483 So.2d 908, 912-13 (La.1986). Applying these precepts, we find that the district court did not prematurely grant summary judgment.

The record reflects that at the time of the hearing, in June 2017, Krouse's motion for summary judgment had been pending for almost three months. The record also establishes that Harvey, after filing suit in December 2016, did not attempt to conduct any discovery in the six months prior to the district court's judgment. At no time did Harvey seek a continuance of the motion, nor did he submit an affidavit setting forth any reasons stating how or why he was prevented from adequately opposing the motion. See La. C.C.P. 966(C)(2). Rather, he argued in his opposition and at the hearing that discovery of PURE's claim file was required, without explaining how or why the claim file was material to his defamation claims or Krouse's defenses. He does not specify why the contents of PURE's claim file (at that point a non-party) would shed light on the issue of Krouse's alleged malice. Moreover, it appears that parts of PURE's claim file, including the transcribed interview of Saacks and PURE's claim notes, were made part of the summary judgment record. Accordingly, we find that the motion for summary judgment was not premature, and the district court did not abuse its discretion in entertaining it or granting it.

The record adequately supports the district court's ruling.

Harvey contends that there was no record evidence introduced at the hearing, and therefore no record evidence upon which the district court could base its ruling. In making this argument, Harvey argues that the defendant did not offer and introduce any of the documents on which the motion was based into the record, nor did the district court specifically rule that the documents attached to the exception were accepted into evidence and made part of the record. We are unpersuaded.

While it is true that over time, our legislature has amended the requirements for admissibility of summary judgment evidence, the version of La. C.C.P. 966 in effect when Krouse filed his motion for summary judgment, on March 31, 2017, (which is still current), provides in pertinent part that "[t]he court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made . Any objection to a document shall be raised in a timely filed opposition or reply memorandum." La. C.C.P. art. 966(D)(2) (emphasis added). The article does not include a requirement that evidence be formally offered and introduced before a reviewing court may consider a motion for summary judgment. Rather, the court may consider any of the enumerated "documents" that are "filed" with the motion and for which no objection is made. See Washington v. Gallo Mechanical Contractors, LLC , 16-1251, pp. 5-6 (La. App. 4 Cir. 5/17/17), 221 So.3d 116, 120-21.

Krouse's motion for summary judgment included a statement of undisputed material facts that was supported by his own affidavit which authenticated and made part of the summary judgment record the relevant pleadings and rulings from the underlying personal injury case, in conformity with the applicable versions of La. C.C.P. articles 966 and 967. Harvey did not object to the affidavit or the attached documents. Accordingly, Krouse's documents were properly made part of the summary judgment record, and this assignment of error has no merit.

Harvey has failed to establish that Krouse's alleged defamatory statements were made with malice.

Harvey alleges that Krouse defamed him by the allegations contained in his amended answer in support of PURE's fraud defense to Saacks' claims. To establish a claim for defamation, a plaintiff must show: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Kennedy, 05-1418 at p. 4, 935 So.2d at 674 citing Costello , 03-1146 at p. 12, 864 So.2d at 139 ; RESTATEMENT (SECOND) OF TORTS § 558 (1977) (other citations omitted). The fault requirement is generally referred to in the jurisprudence as malice, actual or implied. Kennedy , 05-1418 at p. 4, 935 So.2d at 674. "Malice (or fault), for purposes of the tort of defamation, is a lack of reasonable belief in the truth of the statement giving rise to the defamation." Costello , 03-1146 at p. 18, 864 So.2d at 143.

Words that expressly or implicitly accuse another of criminal conduct or that, by their nature, tend to injure one's personal or professional reputation are considered defamatory per se. Kennedy , 05-1418 at pp. 4-5, 935 So.2d at 675. If a plaintiff makes a showing that a statement is defamatory per se , falsity and malice (or fault) are presumed, but the presumption may be rebutted by the defendant. Id.

However, "even when a plaintiff makes a prima facie showing of the essential elements of defamation, recovery may be precluded if the defendant shows either that the statement was true, or that it was protected by a privilege, absolute or qualified. Costello, 03-1146 at p. 15, 864 So.2d at 141. As set forth more fully below, we find that the alleged defamatory statements made by Krouse were privileged, and thus Harvey has failed to establish the second requirement for a defamation claim-unprivileged communication.

Louisiana Revised Statute 14:49 provides that "[a] qualified privilege exists and actual malice must be proved, regardless of whether the publication is true or false ... [w]here the publication or expression is made by an attorney or party in a judicial proceeding." "Although La. R.S. 14:49 is part of the Louisiana Criminal Code, the qualified privileges that it enumerates as defenses for criminal defamation ... are also applicable to civil defamation cases." Hornot v. Cardenas , 06-1341, p. 21 (La. App. 4 Cir. 10/3/07), 968 So.2d 789, 803 (citation omitted). The Louisiana Supreme Court has held that "[s]tatements made in the course of a judicial proceeding are subject to a qualified privilege if the statements are material to the proceeding, and are made with probable cause and without malice." Costello , 03-1146 at p. 16, n.13, 864 So.2d at 142, n.13 (citation omitted).

At the outset, we observe that the vast majority of the complained of allegations are not directed to Harvey at all-they allege various instances in which PURE claimed that Saacks was not forthcoming regarding his prior accidents and injuries, and this fraud is not imputed to Harvey. In fact, PURE, through Krouse, specifically repudiated that it was imputing Saacks' alleged fraudulent statements to Harvey, and PURE explicitly stated in the federal proceeding that "[n]one of Mr. Saacks' conduct or his knowledge of his fraud is imputable to his former counsel. Nothing PURE alleged in its Amended Answer about fraudulent conduct is toward any person other than the insured(s) under the PURE Policy. ..." Likewise, the federal magistrate judge, in determining whether the amended answer should be stricken, stated "I think they've made it pretty clear in their pleadings that ... [fraud by Harvey is] not their argument. This is an argument about an exclusion in the policy that pertains to your client's claim, not the lawyer."

Nevertheless, Krouse's amended answer did allege with respect to Harvey, specifically, that he concealed prior lawsuits involving the same injuries Saacks claimed to have sustained on December 30, 2014, when he knew of the prior suits and had represented Saacks in two of them. Such a statement by its nature is injurious to Harvey's personal and professional reputation, and therefore may be considered defamatory per se , and malice is therefore presumed. The burden thus shifted to defendant Krouse to rebut the adverse presumption, and to point to facts which demonstrate an absence of malice-that is, to show that the statements were not made with a lack of reasonable belief in their truth.

We find that Krouse has met this burden, because given the information obtained through discovery, the allegations were made with a reasonable belief in their truth. The record evidence establishes that at the time Krouse's original answer was filed, on February 12, 2016, Saacks, represented by Harvey, had stated to PURE that he had not been involved in any prior accidents or lawsuits. However, subsequent discovery (after Harvey had withdrawn as Saacks' counsel and he was represented by a new attorney) revealed that Harvey had previously represented Saacks in two prior lawsuits claiming injuries to the same body parts allegedly injured in the December 2014 accident. Harvey acknowledges his prior representation of Saacks in his affidavit, but claims that his personal records of the prior suits were lost in Hurricane Katrina, and in any event that the suits were public record. We take no position on whether Harvey's actions constituted intentional concealment or not, but note with respect to the allegations in PURE's amended answer, that "[w]hether or not a litigant has probable cause for the averments of his judicial pleadings does not depend merely upon the actual state of the case, but upon his honest belief in making said averments." Costello , 03-1146 at p. 23, 864 So.2d at 146.

On the record before us, we cannot find that the allegations of the amended answer were made with a lack of reasonable belief in their truth, and it is "[o]nly when a statement is found to be made without reasonable grounds for believing it to be true can the person uttering the statement be found to be actuated by malice or ill will." Kennedy , 05-1418 at p.20, 935 So.2d at 683. Rather, we agree with the federal magistrate judge and federal district judge who reviewed the allegations and the discovery and determined that the allegations were not malicious, specifically finding that they were made to conform the pleadings to facts which had been revealed through discovery. Further, they were made during the course of litigation, and were material to PURE's fraud defense. Accordingly, the statements complained of by Harvey are protected by a qualified litigation privilege.

No fact issues existed that precluded summary judgment.

Based on our de novo review of the record, we agree with the district court that Harvey failed to introduce summary judgment evidence indicating a genuine issue of material fact for trial on the issue of malice. Notwithstanding the burden-shifting that resulted from the fact that certain complained of allegations could be considered defamatory per se , the record establishes that Krouse met his burden by demonstrating that he had probable cause to make the averments and they were not made without a reasonable belief in their truth. Consequently, the trial court did not err in holding that the alleged defamatory statements were subject to qualified privilege and that Harvey failed to overcome that privilege. Accordingly, the judgment of the district court is affirmed.

AFFIRMED

MCKAY, C.J., CONCURS

      Saacks' wife also sought damages for loss of consortium in that suit, but because the facts at issue in the instant case relate only to Antoine Saacks, Jr., for the sake of convenience, we refer to plaintiff Saacks in the singular throughout this opinion.