author: SAUNDERS, J.

text:
    Jude K. MENARD v. Dr. John STROY, et al.
    16-609
    Court of Appeal of Louisiana, Third Circuit.
    OPINIONS RENDERED 12/21/2016

      Kenneth W. DeJean, Adam R. Credeur, Law Offices of Kenneth W. DeJean, P. O. Box 4325, Lafayette, LA 70502, (337) 235-5294, COUNSEL FOR PLAINTIFF/APPELLANT: Jude K. Menard
    Brent E. Kinchen, Kinchen, Walker, Bienvenu, Bargas, Reed & Helm, L.L.C., 9456 Jefferson Highway, Building III, Suite F, Baton Rouge, LA 70809, (225) 292-6704, COUNSEL FOR DEFENDANT/APPELLEE: Shelter Mutual Insurance Company
    Thomas Robert Shelton, Shelton Law Firm, P. O. Drawer 52548, Lafayette, LA 70505, (337) 237-3000, COUNSEL FOR DEFENDANT/APPELLEE: Dr. John Stroy
    Court composed of John D. Saunders, Billy H. Ezell, and D. Kent Savoie, Judges.
   SAUNDERS, J.

[ iThis personal injury suit arises out of an incident where Plaintiffs wrist was injured by Defendant when Defendant grabbed a sheet of paper from Plaintiffs hand. Plaintiff was subsequently diagnosed with De Quervain’s tendinitis, received treatment, and still suffers from pain. Plaintiff was awarded $3,000.00 in general damages and $3,048.00 in special damages. Plaintiff was denied reimbursement for a 2004 medical bill in the sum of $220.00. Plaintiff appeals the amount of general damages as well as the denial of the 2004 medical bill.

FACTS AND PROCEDURAL HISTORY:

Jude K. Menard, hereinafter “Plaintiff,” was employed by Lafayette Motors as a service advisor on the day of the incident on August 29, 2003. Dr. John Stroy, hereinafter “Defendant,” arrived at Lafayette Motors the morning of August 29, 2003, and asked Plaintiff for a copy of a repair estimate that had been previously prepared for Defendant’s wife’s vehicle. This estimate was previously rejected by Defendant’s wife.

Plaintiff went to make a copy of the estimate. While he was making a copy, Buddy Delahoussaye, the service and shop manager was speaking to Defendant. Mr. Delahoussaye instructed Plaintiff not to give the copy of the estimate to Defendant. Plaintiff crumpled the estimate to throw it in the trash. Defendant then grabbed the estimate out of Plaintiffs hand and twisted his right wrist in the process. Defendant left the premises with the copy of the estimate.

Plaintiff suffered injuries to his wrist and arm, and he was later diagnosed with De Quervain’s tendinitis by an orthopedic surgeon. An expert witness obtained by Defendant also confirmed this diagnosis. On April 10, 2012, several years after the incident, Plaintiff testified that he still suffered pain in his wrist.

| ?,On February 10, 2004, Plaintiff filed an Original Petition for Damages against Defendant alleging that the actions of Defendant were the proximate cause of his injuries, as well as the medical bills incurred in light of the injury. Defendant filed an Answer and a Reconventional Demand on February 26, 2004, which contained allegations that Plaintiff had made defamatory and slanderous public statements against Defendant that caused Defendant to suffer embarrassment, humiliation, and mental anguish. On or about March 23, 2006, Plaintiff filed a Motion to Strike and/or Dismiss the Reconventional Demand, which was granted on February 21, 2008, by virtue of a judgment. Plaintiff then filed a First Supplemental and Amending Petition naming Shelter Mutual Insurance Company, Defendant’s homeowner’s insurer, as an additional defendant in the suit. Shelter Mutual Insurance Company filed an Answer to this petition pleading that, despite issuing a homeowner’s insurance to Defendant, this policy did not provide coverage for the incident that occurred between Plaintiff and Defendant. Shelter Mutual Insurance Company filed a Motion for Summary Judgment on October 1, 2012, which was denied.

A bench trial was held on November 24, 2014. The trial court found in favor of Plaintiff, on the issue of liability against the Defendants, and the court awarded Plaintiff general damages in the amount of $3,000.00. The trial court denied the application of the intentional acts exclusion raised by Shelter Mutual Insurance Company. The trial court also awarded Plaintiff special damages for the medical expenses from August 2003 to November 2003 in the amount of $3,048.00. The trial court denied reimbursement for the March 2004 medical bill in the sum of $220.00.

The Reasons for Ruling were signed on January 20,2015, and a final judgment was entered on April 12, 2016.

| «ASSIGNMENTS OF ERROR:

1. The trial court abused its discretion by awarding $3,000.00 in general damages to Plaintiff, as this is an inadequate award given the evidence and facts.
2. The trial court’s determination that Plaintiffs medical treatment on March 9, 2004 did not relate back to the incident and the court’s denial of medical expenses associated with this treatment was an abuse of discretion and/or manifestly erroneous as it is contrary to the evidence and facts.

STANDARD OF REVIEW:

Vast discretion is accorded the trier of fact in fixing general damage awards. La.Civ.Code art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377, p. 13 (La.App. 1 Cir. 11/8/96), 685 So.2d 163, writ denied, 97-493 (La. 4/4/97), 692 So.2d 421. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Id.

“Factual findings of a trial court are reviewed under the manifest error-clearly wrong standard of review,” Thibodeaux v. Comeaux, 11-127, p. 5 (La.App. 3 Cir. 6/15/11), 69 So.3d 674, 679 (citing Fon- tenot v. Patterson Ins., 09-669 (La. 10/20/09), 23 So.3d 259). An appellate court may not disturb a finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Id.

DISCUSSION OF THE MERITS:

In his first assignment of error, Plaintiff contends the trial court abused its discretion by awarding $3,000.00 in general damages to Plaintiff.

| /‘Vast discretion is accorded the trier of fact in fixing general damage awards.” Stelly v. Zurich American Ins. Co., 11-1144, p. 3 (La.App. 3 Cir. 2/1/12), 83 So.3d 1225, 1228 (citations omitted).

Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award.
Id. at 1228 (quoting Youn, 623 So.2d at 1261).

“The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Cone v. National Emergency Serv. Inc., 99-0934 (La. 10/29/99), 747 So.2d 1085, 1089; Reck v. Stevens, 373 So.2d 498 (La. 1979).” Id. (quoting Duncan v. Kansas City S. Ry. Co., 00-66 (La. 10/30/00), 773 So.2d 670, 682-83).

Plaintiff testified that Defendant grabbed his shoulder, spun him around, and grabbed his wrist and hand with both of his hands and twisted Plaintiffs wrist until he let go of the car repair estimate. Several witnesses were called, and their versions differed; one witness claimed Defendant grabbed Plaintiffs hand causing him to turn, and another testified that Defendant tried to grab the estimate from behind Plaintiff. Defendant himself testified that he was just standing close to Plaintiff and did not have any physical contact with him.

Plaintiff testified that he began to feel sharp pains in his wrist the day of the incident. Two days after the incident, Plaintiff went to the emergency room for the pain and was referred to an orthopedist. He had three visits with the orthopedist over the course of seven months, and Plaintiff was told after the third visit he should return on an as-needed basis and was released to full-duty status. Plaintiff did not appear for his next two scheduled visits with the orthopedist and did not seek any further treatment.

| ¡¡Plaintiff testified that he experienced daily wrist pain for the first six months following the incident and then the pain would “come and go.” Plaintiff sporadically used several prescriptions, often waiting several days, weeks, and months to refill them. Ultimately, the trial court did not find that Plaintiff suffered significant injuries. We agree.

After considering the nature and extent of Plaintiffs injuries along with the treatment plan and its duration, we cannot say the trial court erred in its general damage award of $3,000.00. A reasonable trier of fact could have ascertained this amount based on the facts before it and especially in light of the vast discretion afforded the trier of fact. The trial court found that the suit before us rested on the issues of credibility and its belief that Plaintiff did not suffer significant injuries to afford him a higher general damages award.

In his second assignment of error, Plaintiff contends the trial court’s determination that Plaintiffs medical treatment on March 9, 2004, did not relate back to the incident, and the court’s denial of medical expenses totaling $220.00 associated with this treatment was an abuse of discretion and/or manifestly erroneous as it is contrary to the evidence and facts.

Plaintiff argues that the November 11, 2003 doctor’s visit and the March 9, 2004 doctor’s visit are clearly related to and resulted from the original incident between Plaintiff and Defendant when the wrist injury occurred. While this appears to be plausible considering the timeline and medical treatment sought, the trial court found that “the lapse between these visits is too tenuous to relate back to the paper pulling incident.” Considering the vast discretion afforded to the trial court as trier of fact, we cannot say this determination was manifestly erroneous.

| (¿DISPOSITION:

Plaintiff, Jude K. Menard, raised two assignments of error. For the foregoing reasons, we affirm the trial court’s judgment and assess all costs of this appeal to Plaintiff.

AFFIRMED.


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    STATE of Louisiana v. George Adonis CARTER
    NO. 2016 KA 1078
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 22, 2016

      Richard Ward Jr., District Attorney, Chad Aguillard, Assistant District Attorney, New Roads, Louisiana, Attorneys for Plaintiff/Appellee, State of Louisiana
    Prentice L. White, Baton Rouge, Louisiana, Attorney for Defendant/Appellant, George Adonis Carter
    George Adonis Carter, Angola, Louisiana, In Proper Person
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

|?The defendant, George Adonis Carter, appeals sentences imposed by the trial court following the affirmation of his convictions by this court and a remand for resentencing. We affirm the sentence on count one, amend the sentence on count two, and, as amended, affirm that sentence.

FACTS AND PROCEDURAL HISTORY

The facts and procedural history pertinent to the defendant’s convictions are set forth in the opinion rendered by this court in the prior appeal. See State v. Carter, 14-0742 (La.App. 1 Cir. 3/25/15), 167 So.3d 970. In sum, the defendant was found guilty of armed robbery by use of a firearm, a violation of Louisiana Revised Statutes 14:64 and 14:64.3 (count one), and being a convicted felon in possession of a firearm, a violation of Louisiana Revised Statute 14:95.1 (count two). He was sentenced to imprisonment at hard labor for ninety-nine years for the armed robbery conviction, plus an additional five years pursuant to Section 14:64.3, and twenty years at hard labor for the felon in possession of a firearm conviction. The sentences were ordered to be served consecutively.

In the previous appeal, this court affirmed those convictions. See Carter, 167 So.3d at 975-80. However, because the trial court sentenced the defendant before expiration of the minimum 24-hour delay required by Louisiana Code of Criminal Procedure article 873, this court vacated the sentences and remanded the matter for resentencing. See Carter, 167 So.3d at 979-80. On remand, the trial court reimposed the original sentences, which were again ordered to be served consecutively. The defendant appeals and asserts that the trial court’s sentences also included fines, which the defendant contends are excessive. In a pro se brief, the defendant additionally contends that the trial court erred in using a prior | ¿juvenile conviction as a predicate offense for purposes of sentencing him as a habitual offender.

DISCUSSION

Following the previous remand by this court, the trial court held a hearing to resentence the defendant. At that hearing, the record reflects some initial confusion by the trial court and counsel about why the original sentences were vacated. Under the erroneous impression that the sentences were vacated because they omitted mandatory fines, the trial court stated that the defendant was sentenced to a $4,000 fine for the conviction on count one (armed robbery by use of a firearm) and a $1,000 fine for the conviction on count two (convicted felon in possession of a firearm).

However, in response to requests by counsel, the trial court recessed to actually review this court’s previous opinion. After the recess, the trial court resumed the hearing and stated:

So, back to Mr. Carter. The—the Court, together with the Prosecutor, and [defense counsel] reviewed the specifics again of the First Circuit’s opinion, and clearly what they have mandated to the Court was that after a denial of a Motion to Reconsider, I needed to get the waiver of the Defendant, which I obviously didn’t do, or I have to wait twenty-four hours before I sentenced him.
* * *
Therefore, on—on Count One, Armed Robbery, since clearly more than twenty-four hours has existed since the Motion for 1 ^Reconsideration was denied, I’m going to hereby sentence Mr. Carter on Court One, Armed Robbery, to ninety-nine years, period.
On Count—in addition to that, because there was a firearm used, the Court is going to impose the additional five years at hard labor in addition to the ninety-nine.
On Count Two ... being convicted of a Convicted Felon Possessing a Firearm ... the Court is going to sentence him to twenty years at hard labor on that charge. The sentences are to run consecutive with each other, credit for any time that the law gives him credit for

On appeal, the defendant maintains that the sentences imposed by the trial court include a total of $5,000 in fines, which the defendant contends are excessive and are based on an erroneous interpretation of this court’s earlier opinion. We disagree.

The transcript reveals that after the trial court reviewed this court’s earlier opinion, it recognized that the matter was remanded because the original sentences were imposed prior to the expiration of the required sentencing delays, not because of the absence of fines as it had earlier stated. The trial court then resentenced the defendant on each count to the stated terms of imprisonment. The sentences imposed at that time do not include any mention of fines. The minutes for the hearing likewise reflect that the defendant was sentenced to the stated terms of imprisonment, without any fines.

We find that the fines mentioned by the tidal court prior to recessing the hearing do not form a part of the sentences imposed. Consequently, there is no merit to the defendant’s contention that the trial court abused its discretion or imposed an excessive sentence by assessing fines totaling $5,000. This assignment of error is without merit.

In a pro se brief, the defendant also assigns as error the trial court’s purported use of a prior juvenile conviction as a predicate offense in sentencing the defendant as a habitual offender under Louisiana Revised Statute 15:529.1. We | ^initially note that the record does not contain a habitual offender bill of information, nor does the record suggest that the defendant’s sentences were enhanced under the habitual offender law. Nonetheless, we do not address the merits of this pro se assignment of error, because the issue was not raised in the trial court. An irregularity cannot be availed of after the verdict unless it was objected to at the time of the occurrence. See La. Code Crim. Pro. art. 841 A.

REVIEW FOR ERROR

Pursuant to Louisiana Code of Criminal Procedure article 920, this court routinely conducts a review for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. After a careful review of the record, we have found a sentencing error.

Upon conviction for being a convicted felon in possession of firearm, Louisiana Revised Statute 14:95. IB mandates imposition of a fine of not less than $1,000 nor more than $5,000. The defendant’s sentence does not include any fine. Because the sentence does not comply with the legislatively mandated sentencing range in Section 14:95.1B, it is illegally lenient. See State v. Bell, 14-1046 (LaApp. 1 Cir. 1/15/15), 169 So.3d 417, 426; State v. Passow, 13-0341 (La.App. 1 Cir. 11/1/13), 136 So.3d 12, 15.

The defendant has no constitutional or statutory right to an illegally lenient sentence. See State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 797; see also State v. Kondylis, 14-0196 (La. 10/3/14), 149 So.3d 1210, 1211. As an appellate court, we are authorized to correct an illegal sentence that involves no more than the ministerial correction of a sentencing error. See La. Code Crim. Pro. art. 882A; State v. Haynes, 04-1893 (La. 12/10/04), 889 So.2d 224 (per curiam). In general, imposition of a mandatory minimum fine can be considered nothing more than the ministerial correction of a sentencing error. See State v. Robertson, 14-0252, 2014 WL 4668685 (La. App. 1 Cir. 9/19/14) (ille-gaily lenient sentence under Section 14:95.1B was amended on appeal to include the minimum fíne of $1,000); contrast Haynes, 889 So.2d at 224 (finding that court of appeal erred by amending an illegally lenient sentence under Section 14:95.1B to include the maximum fine of $5,000).

An amendment of the defendant’s sentence on count two to include this non-discretionary fine, in the minimum amount, does not constitute a due process violation because neither actual retaliation nor vindictiveness exists in this correction. See Robertson, 2014 WL 4668685 at *6; State v. Gregoire, 13-0751 (La.App. 1 Cir. 3/21/14), 143 So.3d 503, 510, writ denied, 14-0686 (La. 10/31/14), 152 So.3d 151. Accordingly, we amend the defendant’s sentence for his conviction under count two to include a fine in the minimum amount of $1,000.

SENTENCE ON COUNT ONE AFFIRMED; SENTENCE ON COUNT TWO AMENDED AND, AS AMENDED, AFFIRMED.

      . In both counselled and pro se briefs, the defendant asserts that the bill of information in this proceeding lacked sufficient information to fairly inform him of the charged offense. As noted, this court previously addressed and affirmed the defendant’s convictions. See Carter, 167 So.3d at 975-80. Those convictions are now final. See La. Code Crim. Pro. art. 922. Therefore, the scope of review for this appeal is limited only to alleged errors in the defendant’s resentencing. See State v. Kelly, 12-1197, 2013 WL 1300731 (La. App. 1 Cir. 4/1/13), writ denied, 13-1332 (La. 11/8/13), 125 So.3d 450; State v. LeBlanc, 07-654, 2007 WL 4248591 (La. App. 3 Cir. 12/5/07); State v. Wise, 14-378 (La.App. 5 Cir. 10/15/14), 182 So.3d 63, 75; State v. Anderson, 12-869 (La.App. 5 Cir. 6/27/13), 121 So.3d 119, 124, writ denied, 13-1861 (La. 2/21/14), 133 So.3d 679. Accordingly, any assignments of error concerning the defendant’s convictions are not subject to review in this appeal. Id.


text:
    IN the MATTER OF the SUCCESSION OF Carole Bagwell BEARD
    NO. 2016 CA 0304
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 22, 2016

      David M. Cohn, D. Brian Cohn, Bartley P. Bourgeois, M. Virginia Kelley Smith, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellee Julius Beard Jr.
    Randall A. Shipp, Baton Rouge, Louisiana, Attorney for Defendant/Appellant Christopher D. Shows
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

|2In a previous appeal, this matter was remanded to the trial court for a determination of the appropriate amount and form of security to be posted by a usufructuary. See In re Succession of Beard, 13-1717 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 765. On remand, the trial court held an eviden-tiary hearing and thereafter signed a judgment fixing the security. A naked owner appealed, and the usufructuary answered the appeal. We amend the judgment and, as amended, affirm.

FACTS AND PROCEDURAL HISTORY

Carole Beard died testate on November 5, 1993. Her surviving husband, Julius Beard Jr., instituted this proceeding and obtained a judgment of possession that, in relevant part, placed him in possession of the usufruct of an undivided one-half interest in most of the couple’s former community property. The judgment of possession also vested each of Carole’s four children, two by a prior marriage and two from her marriage with Julius, with an undivided one-eighth interest in the subject property.

Approximately fourteen years after the entry of the judgment of possession, one of Carole’s children from her first marriage, Christopher Shows, filed a petition in the proceeding seeking to terminate the usu-fruct or, alternatively, requesting that Julius post security. After a trial on the merits, the trial court denied Christopher’s claims. Christopher appealed, and, in a prior opinion, this court reversed the trial court’s denial of the request for security, holding that under the law applicable at Carole’s death, Julius was obligated to provide security because the petitioner, Christopher, was a child of Carole’s prior marriage. See Succession of Beard, 147 So.3d at 763-64. The matter was remanded to the trial |scourt for a determination of the appropriate amount and form of the security. See In re Succession of Beard, 147 So.3d at 765.

On remand, the trial court held a contradictory hearing where the parties presented a joint stipulation that established the total values for the property interests in the estate. Based upon those values, the property interests subject to the usufruct are as follows:

Movabie Property; $1,924,736.68
Immovable Property: $ 497.500.00
Total: $2,422,236.682

[Editor’s Note: The preceding image contains the reference for footnote].

Christopher argued that the security should be in the form of a surety bond in the amount of $1,200,000.00, which is the approximate value of the undivided interests in the property held by the two children from Carole’s prior marriage, Christopher and his sister, Molly Shows. Julius countered that Molly’s interest in the property should not be considered because she did not request security. Julius also argued that the value of Christopher’s property interest should be discounted by the value of the outstanding usufruct burdening that interest and should be reduced by expenses reflected in the detailed descriptive list. Applying those deductions, Julius arrived at a figure of $193,475.56, which he suggested should be in the form of a promissory note. Julius also offered to provide periodic reports for an investment account at a financial firm that contained most of the liquid assets subject to the usufruct. Arguing that the cost of a commercial surety bond would be prohibitive, Julius cited evidence indicating that the cost of such a bond is at least 1% of the bond amount on an annual basis.

After taking the matter under advisement, the trial court ordered that Julius post a bond in favor of Christopher and Molly in the amount of $575,000.00, to be |4set forth in a promissory note executed by Julius. The trial court further ordered that the promissory note include an agreement that Julius provide Christopher and Molly an annual accounting of the investment account. The trial court’s ruling was reduced to a judgment signed on November 5, 2015.

On appeal, Christopher contends the bond should be in the amount of $2,422,236.68 and in the form of a surety-bond. Julius answered the appeal and maintains that the bond should only be in favor of Christopher and should not exceed $260,477.98, which he contends is the value of Christopher’s naked ownership in the movable property subject to the usufruct.

DISCUSSION

Pursuant to Louisiana Civil Code article 572, when a usufructuary is obligated to provide security, the security “shall be in the amount of the total value of the property subject to the usufruct.” However, the trial court “may increase or reduce the amount of the security, on proper showing, but the amount shall not be less than the value of the movables subject to the usufruct.” La. Civ. Code art. 572. Within those boundaries, the trial court has discretion in determining the amount of the security. See Succession of Beard, 147 So.3d at 764.

The form of the security is governed by Louisiana Revised Statute 9:1202, which authorizes the court to “order the execution of notes, mortgages, or other documents as it deems necessary” or “impose a mortgage or lien” on the property as security. See also La. Civ. Code art. 1514. These provisions allow for whatever kind of security the trial court, in its discretion, deems appropriate. See Trahan, Successions & Donations, 64 La. L. Rev. 315, 329-30 (2004); see also La. Civ. Code art. 572, Revision Comments—1976, Comment (b) (“The rules adopted impose no limitations on the kinds of security that the usufructuary may furnish.”). A trial court’s judgment determining the amount and kind of security will not be disturbed on appeal absent an abuse of discretion. See Succession of Blythe, 576 So.2d 1207, 1208-09 (La. App. 5 Cir.), writ denied, 580 So.2d 385 (La. 1991).

Arguing that the security should be greater, Christopher points out the total value of the property subject to the usu-fruct is $2,422,236.68 and that an “unsecured note offers no security at all.” Conversely, Julius contends that the amount of the security should be reduced to reflect a discount in the value of Christopher’s interest attributable to the outstanding usu-fruct on the property.

At the outset of our analysis, we again note that the obligation to post security in this case arose solely because it was requested by Christopher, a child of Carole’s prior marriage and one of four naked owners holding an undivided interest in the property. In interpreting Article 572 under these circumstances, we are mindful of the language of former Louisiana Code of Civil Procedure article 3154.1, one of two statutory provisions previously cited by this court as the source of Christopher’s right to request the security. See Succession of Beard, 147 So.3d at 763-64. Notably, Article 3154.1 directed that the requested security be “in an amount determined by the court as adequate to protect the petitioner’s interest.” (Emphasis added.) The emphasized language indicates that when a naked owner requests security under this provision, the security need only be sufficient to protect his interest. By extension, if, as here, the property is owned by multiple naked owners and only one such owner requests security, the security need not be sufficient to protect the interest of the naked owners who did not request security.

|fiLaws on the same subject matter must be interpreted in pari materia, or in reference to each other. See La. Civ. Code art. 18; Pierce Foundations, Inc. v. Jaroy Construction, Inc., 15-0785 (La. 5/3/16), 190 So.3d 298, 303. Construing the cited articles in that manner, we find that when the obligation to post security arises by request of a naked owner pursuant to former Article 3154.1, the amount of the security should be based upon the value of the requesting naked owner’s interest in the property. Thus, for purposes of Article 572, the “value of the property subject to the usufruct” and the “value of the movables subject to the usufruct” mean the value of such property owned by the naked owner requesting the security.

To construe the article otherwise would allow a naked owner with only a nominal interest in the property to compel the usu-fructuary to post security for the full value of the property or, at a minimum, the full value of the movable property subject to the usufruct. Where only one of multiple naked owners requests security, no purpose would be served by requiring the usufructuary to post security in the total amount of all the naked owners’ interests. The non-requesting naked owners, by their silence, have indicated that they do not desire security for their interest.

For these reasons, and given that Christopher is the only naked owner to request security, we reject his contention that Article 572 mandates security in an amount greater than the value of his interest. We likewise reject his argument that the security cannot take the form of a promissory note signed by the usufructu-ary. Section 9:1202 specifically authorizes the court to order “the execution of notes” to satisfy the requirement of security.

As to Julius’ contentions, we find no merit in his argument that the security should be reduced to reflect a discount in the value of Christopher’s interest | attributable to the outstanding usufruct on the property. At the termination of the usufruct, Julius will be obligated to deliver the property to the naked owners, or in the case of consumables, deliver things in the same quantity and quality or value that they had at the commencement of the usufruct. See La. Civ. Code arts. 628 and 629. The interest protected by the security is not limited to the naked ownership interest; it is the undivided interest in full ownership, unencumbered by a usufruct. Thus, for purposes of determining the appropriate amount of security, the value of the property should not be discounted by a usufruct that will no longer exist when the property is returned to the naked owners.

The amount of Julius’ security must either equal the total value of Christopher’s undivided interest in the property, or, on proper showing, be no less than the value of Christopher’s interest in the movable property subject to the usufruct. Based upon the parties’ stipulation, the value of Christopher’s undivided interest in all of the property is $605,559.17, and the value of his interest in the movable property is $481,184.17. After considering the evidence presented at the hearing, including testimony and records establishing that most of the movable property consists of liquid assets invested with a professional investment firm, the trial court, in its discretion, set the amount of Julius’ security at $575,000.00, in the form of a promissory note signed by Julius with an agreement to provide an annual accounting of the investment account. Based upon our review of the entirety of the record, we find no abuse of discretion in that determination.

The trial court did, however, err as a matter of law in ordering that the security additionally be provided to Molly, who did not request security and has never made an appearance in this proceeding. We therefore amend the judgment to provide that the security is only in favor of Christopher Shows.

^CONCLUSION

The trial court’s judgment signed on November 5, 2015, is amended to provide that the security be posted by Julius Beard in favor of Christopher Shows only. As amended, the judgment is affirmed. Costs of this appeal are assessed equally to Julius Beard and Christopher Shows.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

      . The judgment of possession also recognized Julius’ full ownership of one-half of the former community property. A portion of the former community property, principally the family home and furnishings, was bequeathed by Carole to Julius in full ownership.

      . The parties stipulated to the total value of all of the pertinent community property, including the one-half that went to Julius in full ownership. Because only Carole’s share of the community property bequeathed to the children is subject to the usufruct, the above valuations are one-half of the total value of the pertinent community property,

      . The judgment also required Julius to provide written notice of the anticipated sale of any immovable property.

      . Section 9:1202 and the pertinent language in Article 1514 were adopted by Louisiana Acts 2003, No. 1207, §§ 1-2, which this court previously found applicable to this case. See Succession of Beard, 147 So.3d at 764.

      . Former Article 3154.1 was repealed by La. Acts. 2004, No. 158, § 2. The other provision relied upon by this court was a prior version of Louisiana Civil Code article 890 (repealed by La. Acts. 1996, No. 77, § 1), which recognized that "security may be requested” by heirs who were not children of the surviving spouse. See Succession of Beard, 147 So.3d at 763.


author: McClendon, J.

text:
    Kimberly BICE and Steve Bice v. HOME DEPOT U.S.A., INC., AND XYZ Insurance Company
    2016 CA 0447
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 22, 2016

      Heidi M. Vessel, Zachary, Louisiana, Counsel for Plaintiffs/Appellants, Kimberly Bice and Steve Bice
    Megan S. Peterson, M. Davis Ready, New Orleans, Louisiana, Counsel for Defendant/Appellee, Home Depot USA, Inc.
    BEFORE: WHIPPLE, CJ., GUIDRY, and McClendon, jj.
   McClendon, J.

|aThe plaintiffs appeal the grant of summary judgment that dismissed their suit for damages after a fall in the defendant’s home improvement store. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 10, 2013, Kimberly Bice was in the Home Depot store in Zachary, Louisiana, to purchase a stove. As she entered the appliance department, she parked her shopping cart near a bollard, a post approximately three feet high. Ms. Bice then left her cart to select a stove. After making her selection, Ms. Bice returned to her cart. Unable to move the cart in a forward direction, she walked backwards with the cart and fell over the bollard.

On April 24, 2014, Ms. Bice and her husband, Steve Bice, filed a Petition for Damages against the defendant, Home Depot U.S.A., Inc,, asserting the negligence of Home Depot in the placement of the bollard. Home Depot filed an answer denying liability for the injuries alleged and subsequently filed a motion for summary judgment seeking dismissal of the Bices’ claims. Following a hearing on the motion, the trial court granted the motion and rendered summary judgment dismissing Home Depot from the matter with prejudice. The trial court signed its judgment on December 7, 2015. Thereafter, the trial court denied the Bices’ motion for new trial, and they filed a suspensive appeal, assigning as error the grant of summary judgment.

DISCUSSION

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. LSA-C.C.P. art. 966B(2); Tomaso v. Home Depot, U.SA., Inc., 14-1467 (La.App. 1 Cir. 6/5/15), 174 So.3d 679, 681. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966A(2). The purpose of the procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 769 (per curiam).

The mover bears the burden of proving that he is entitled to summary judgment. LSA-C.C.P. art. 966C(2). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. Id.; Janney v. Pearce, 09-2103 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 289, writ denied, 10-1356 (La. 9/24/10), 45 So.3d 1078.

In ruling on a motion for summary-judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines, 876 So.2d at 765. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Clark v. J-H-J Inc., 13-0432 (La.App. 1 Cir. 11/1/13), 136 So.3d 815, 817, writ denied, 13-2780 (La. 2/14/14), 132 So.3d 964.

| ¿The general rule is that the owner or custodian of property has a duty to keep the property in a reasonably safe condition. The owner or custodian must discover any unreasonably dangerous condition on the premises and either correct the condition or warn potential victims of its existence. Henry v. NOHSC Houma No. 1, L.L.C., 11-0738 (La.App. 1 Cir. 6/28/12), 97 So.3d 470, 473, writ denied, 12-1761 (La. 11/2/12), 99 So.3d 677. This duty is the same under theories of negligence or strict liability. Under either theory, the plaintiff has the burden of proving that: (1) the property that caused the damage was in the “custody” of the defendant; (2) the property had a condition that created an unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous condition was a cause in fact of the resulting injury; and (4) defendant had actual or constructive knowledge of the risk. Henry, 97 So.3d at 473-74; see also LSA-C.C. arts. 2315, 2317, and 2317.1.

With regard to the burden of proof in claims against merchants, LSA-R.S. 9:2800.6 provides, in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Failure to prove any one of the foregoing requirements is fatal to a plaintiffs case. See Moore v. Murphy Oil USA, Inc., 15-0096 (La.App. 1 Cir. 12/23/15), 186 So.3d 135, 145, writ denied, 16-00444 (La. 5/20/16), 191 So.3d 1066.

| /While the general rule is that the owner or custodian of property has a duty to keep the property in a reasonably safe condition, an owner or custodian generally has no duty to protect against an open and obvious hazard. Pryor v. Iberia Parish School Bd., 10-1683 (La. 3/16/11), 60 So.3d 594, 596. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. Id.

In determining whether a defect presents an unreasonable risk of harm, the trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. In determining whether a condition is unreasonably dangerous, courts have adopted a risk-utility balancing test. This test encompasses four factors: (1) the utility of the thing; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs’ activities in terms of its social utility, or whether it is dangerous by nature. Pryor, 60 So.3d at 596-97; Gustofson v. Priority Elec., Inc., 13-1096 (La.App. 1 Cir. 2/18/14), 2014 WL 647704, p. 3 (unpublished).

In this matter, the Bices assert that Home Depot created an unreasonable risk of harm by placing the bollard groin high, painted in a black color that blended into the appliances around it, and having advertisements to draw patrons’ attention upward. They deny that the condition was open and obvious and maintain that whether the bollard created an unreasonable risk of harm is a question of material fact inappropriate for summary judgment. The Bices further contend that Home Depot failed to present any evidence as to whether the bollard created an unreasonably dangerous condition. They aver that Home Depot failed to meet its burden of proof of showing a lack of evidentiary support for the Bices’ claims. Therefore, they contend, the burden never shifted to them to present evidence demonstrating that material factual issues remained, and Home Depot was not entitled to summary judgment.

To the contrary, Home Depot asserts that it supported its motion for summary judgment by introducing excerpts of Ms. Bice’s deposition testimony, which included a photograph of the bollard over which Ms. Bice fell, the Bices’ responses to Home | fiDepot’s interrogatories and requests for production of documents, and Home Depot’s answers to interrogatories by the Bices. Home Depot further states that the Bices, while opposing the motion for summary judgment, offered no evidence in support thereof other than filing a memorandum. Home Depot also argues that it was not until after the close of discovery and three months before trial that it filed its motion for summary judgment. It contends that it pointed out the absence of factual support for the essential element of an unreasonably dangerous condition and that if the bollard presented a risk of harm, it was open and obvious. Home Depot also asserts that it pointed out that the Bices failed to present any evidence that it possessed constructive notice that the post presented a potential risk of harm.

The trial court agreed with Home Depot finding that the Bices failed to present evidence to meet their burden of proof under LSA-R.S. 9:2800.6. Specifically, the trial court determined that the Bices failed to show that Home Depot had actual or constructive notice of the alleged defect, that the condition presented an unreasonable risk of harm, or that Home Depot failed to exercise reasonable care.

In determining whether the bollard presented an unreasonable risk of harm and whether Home Depot breached any duty to the Bices, we now consider the risk-utility balancing test. As to the first factor, the bollards serve the purpose of prevent ing damage to the Home Depot appliances from the shopping carts. The Bices offered no evidence to dispute the utility of the bollards. However, the utility of the bollards must be weighed against the likelihood and magnitude of harm, including the obviousness and apparentness of the condition. Home Depot contends that the bollards were conspicuous and clearly visible, and, in support, offered into evidence a copy of a photograph, taken on behalf of the Bices shortly after the fall, of two bollards in the Home Depot store, including the one over which Ms. Bice fell. The bollard was in a well-lit area that was easily observable and obvious to all customers. Although the Bices argue that the black color of the bollards blended in with the appliances making them not adequately visible, no testimony or other evidence indicated that the color was insufficient to alert customers of their existence, and the photograph introduced by Home Depot showed otherwise. Additionally, Ms. Bice was aware of the presence of 17the bollards before her fall. She stated that she parked her shopping cart in the center of the appliance department because there was no room to move around with it. Further, Home Depot presented evidence that it had no knowledge of any incidents of trips or falls in this area of the store within five years of this incident. The Bices failed to offer any evidence to show the likelihood or magnitude of harm. As to the cost of preventing the harm, the Bices also failed to present any evidence regarding this factor, but arguably the cost of repainting the bollards a brighter color would have been minimal. Lastly, Home Depot pointed out Ms. Bice’s deposition testimony, wherein she admitted backing up with her cart before falling over the bollard. Ms. Bice’s actions in walking backwards without confirming a clear pathway were dangerous in nature.

Upon our careful de novo review, and after considering the risk-utility factors, we find that the trial court correctly granted summary judgment. We first find that Home Depot, as the moving party, met its initial burden of pointing out that there was an absence of factual support for one or more elements essential to the Bices’ claim: that the bollard presented an unreasonable risk of harm that was reasonably foreseeable to Home Depot. Pointing out this lack of support for an essential element of their claim, the burden then shifted to the Bices, as the nonmoving party, to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial. See LSA-C.C.P. art. 966C; Clark, 136 So.3d at 818. The Bices failed to demonstrate that they would be able to meet their burden of proof at trial to show that the bollard presented an unreasonable risk of harm or that Home Depot otherwise breached a duty to them. The evidence presented by Home Depot indicated that Ms. Bice would not have fallen but for her own inattentiveness and that the bollard was open and obvious to all. In the absence of evidence showing that there were genuine issues of material fact remaining, summary judgment was appropriate.

^CONCLUSION

For the above stated reasons, we affirm the December 7, 2015 judgment of the trial court, granting Home Depot U.S.A., Inc.’s motion for summary judgment and dismissing the claims of Kimberly Bice and Steve Bice. All costs of this appeal are assessed to the Bices.

AFFIRMED.

Guidry, J. concurs.

      . A bollard is used to limit traffic in certain areas. In this case, the bollards were used to keep shopping carts from hitting the appliances.

      . An unnamed insurance company, XYZ Insurance Company, was also made a defendant.

      . The summary judgment law was recently amended by 2015 La. Acts, No. 422, but the provisions of Act 422 do "not apply to any motion for summary judgment pending adjudication or appeal on [January 1, 2016].’’

      . Contrast Abolofia v. Board of Supervisors of Louisiana State University and Agr. and Mechanical College, 14-0593 (La.App. 1 Cir. 1/27/15), 2015 WL 782831 (unpublished), which we find to be distinguishable on its facts.

      . Because we find that the Bices failed to present evidence to establish that the bollard presented an unreasonable risk of harm, we need not address the other requirements of LSA-R.S, 9:2800.6. See Moore, 186 So.3d at 145.