text:
    STATE EX REL. Robert Dewayne JOHNSON v. STATE of Louisiana
    No. 2015-KH-2202
    Supreme Court of Louisiana.
    04/07/2017
   ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA

PER CURIAM:

| denied. The claims are repetitive, see La.C.Cr.P. Art. 930.4, and relator’s sentencing claim is not cognizable on collateral review. La.C.Cr.P. Art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172. We attach hereto and make a part hereof the district court’s written reasons denying relator’s application.

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

Hughes, J., would grant the writ in part.

ATTACHMENT

JETATE OF LOUISIANA * PARISH OF OUACHITA * FOURTH DISTRICT COURT

STATE OF LOUISIANA

V.

ROBERT D. JOHNSON

NO. 11-F2424

FILED: JUL 01, 2015

BY: /s/

DEPUTY CLERK

RULING ON APPLICATION FOR POST-CONVICTION RELIEF

On January 23, 2012, the defendant, Robert D. Johnson, was found guilty by a unanimous jury of the crime of armed robbery, and he was subsequently sentenced to sixty (60) years at hard labor without benefits. On August 7, 2013, Defendant’s conviction and sentence were affirmed by the Second Circuit Court of Appeal, and the Louisiana Supreme Court denied his writ application on March 14, 2014, Defendant timely filed an Application for Post-Conviction Relief. Upon receipt of this Application, the Court ordered the State to file any procedural objections it might have or, if there were no procedural objections, to file an answer on the merits in accordance with La. C.Cr.P. Art. 927(A). When the Court did not receive a response from the State, it issued a Supplemental Order directing the State to review its records to determine whether an answer had been filed and, if none had been filed, to do so within fifteen (15) days. The Court has now received the State’s Response to Defendant’s Application for Post-Conviction Relief, filed May 13, 2015, prior to the deadline.

Defendant has now filed a pleading styled “Motion To Grant Petitioner’s Application for Post Conviction Relief Due to State’s Refusal To Comply with Order of this Court”. However, as noted above, the State had filed a response prior to Defendant filing this new pleading. Thus, the Motion, filed June 16, 2015, is moot.

If the Court determines that the factual and legal issues raised in an application for post-conviction relief can be resolved based upon the application, the answer, and the supporting documents, including relevant transcripts, depositions, and other reliable documents submitted by either party or available to the Court, the Court may grant or deny relief without the necessity of an evidentiary hearing or other further proceedings. La. C.Cr.P. Art. 929(A). Having reviewed Defendant’s application, the State’s response, and the documents submitted by both parties as well as the record in these proceedings, the Court determines that it can decide these matters based on said application and answer and relevant portions of the record without the necessity of an eviden-tiary hearing and thus issues the following ruling.

I ¿Defendant’s Application alleges two claims for relief:

1. The evidence was insufficient to support his conviction for Armed Robbery; and

2. His sentence was excessive.

The State objects to both claims on procedural grounds or, in the alternative, on the merits.

CLAIM I

In his first claim for relief, Defendant contends the evidence was insufficient for a conviction because the reactions of store employees on a surveillance video were inconsistent with their testimony that Defendant was armed with a dangerous weapon. As noted by the State in its response to this claim, this issue was fully argued and litigated on appeal, and the Second Circuit Court of Appeal rejected the claim. Issues which have been fully litigated in an appeal from the proceeding leading to the judgment of conviction and sentence may not be considered again on post-conviction relief, La. C.Cr.P. Art. 930.4

CLAIM II

Next, Defendant argues his sentence is excessive because of the low value of the items taken in the robbery. This issue was also fully litigated in Defendant’s direct appeal, and the Second Circuit found the sentence not to be excessive given Defendant’s extensive criminal history. This claim, too, is procedurally barred for the reason stated in the preceding paragraph.

Therefore, for the foregoing reasons, Defendant’s Application for Post-Conviction Relief is hereby DENIED,

THUS DONE AND SIGNED in chambers in Monroe, Louisiana, this 29th day of June, 2015.

/s/ C. WENDELL MANNING JUDGE, SECTION 1, DIVISION F

Please serve: Roben D. Johnson, #375369 David Wade Correctional Center 670 Dell Hill Road Homer, Louisiana 71040-2150 Michael J. Fontenot Assistant District Attorney Fourth Judicial District Court P.O. Box 1652 Monroe, Louisiana 71201


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Shawn BURTIS v. STATE of Louisiana
    No. 2015-KH-2200
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM:

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

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

Attachment


text:
    STATE EX REL. Donald LOSTON v. STATE of Louisiana
    No. 2015-KH-2198
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM:

|, Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930,2. We attach hereto and make a part hereof the district court’s written reasons denying relator’s application.

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

Attachment


text:
    STATE EX REL. Troy GREENUP v. STATE of Louisiana
    No. 2015-KH-2128
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM:

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

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

Attachment


author: CRICHTON, J.,

text:
    Whitney May BONILLA v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT #2, Parish of Jefferson, State of Louisiana, East Jefferson General Hospital
    No. 2017-C-0187
    Supreme Court of Louisiana.
    April 7, 2017

      JOHNSON, C.J., would grant.
    HUGHES, J., would grant.
    CRIGHTON, J., additionally concurs and assigns reasons.
   CRICHTON, J.,

additionally concurs and assigns reasons:

hi agree with the majority’s decision to deny this writ application, as I find it distinguishable from this Court’s recent opinion in Billeaudeau v. Opelousas Gen. Hosp. Authority, 16-0846 (La. 10/19/16), 218 So.3d 513 (2016 WL 6123862). Specifically, this Court’s decision in Billeaudeau concluded that a patient’s claim of negligent credentialing of a doctor fell outside the purview of the Louisiana Medical Malpractice Act, as it did not fall under the six “malpractice” factors outlined in Coleman v. Deno, 01-1517, pp. 17-18, 813 So.2d 303, 315-16. After analyzing those factors, the Billeaudeau court concluded that the patient’s |anegligent credentialing claim sounded in general negligence, rather than medical malpractice, as it involved the hospital’s by-laws and administrative procedures.

In contrast, plaintiffs allegations here concern her transfer to another doctor’s care, which is directly related to her treatment and arises out of a patient-physician relationship. While I recognize the severe and tragic facts in this case, I find it primarily concerns the regulation of the practice of medicine, patient care, and patient treatment by physicians working at the hospital, which invokes the Louisiana Medical Malpractice Act. Thus, in my view, the instant case is not analogous to Bil-leaudeau, and this Court properly declined to exercise its supervisory jurisdiction.

      . Those factors which a court may use to assist it in determining whether certain conduct by a qualified health care provider constitutes “malpractice” as defined under the Medical Malpractice Act are as follows:
      (1) Whether the particular wrong is "treatment related” or caused by a declaration of professional skill,
      (2) Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,
      (3) Whether the pertinent act or omission involved assessment of the patient's condition,
      (4) Whether an incident occurred in the context of a patient-physician relationship, or was within the scope of activities which a hospital is licensed to perform,
      (5) Whether the injury would have occurred if the patient had not sought treatment, and
      (6) Whether the tort alleged was intentional.

        Coleman, 01-1517 at pp. 17-18, 813 So.2d at 315-16.


text:
    IN RE: Jason NAPOLI, Assistant District Attorney
    NO. 2017-KD-0011
    Supreme Court of Louisiana.
    January 4, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No.; to the Court of Appeal, Fourth Circuit, No. 2016-K-0006

| iDenied.


text:
    STATE of Louisiana v. Will MOFFETT
    NO. 2017-KD-0053
    Supreme Court of Louisiana.
    January 10, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 528-770; to the Court of Appeal, Fourth Circuit, No. 2017-K-0022;

11 Stay denied; writ denied.

GUIDRY, J., would grant.

CRICHTON, J., would grant for the reasons assigned by Judge Lobrano of the Fourth Circuit Court of Appeal.


text:
    STATE EX REL. Michael L. TAYLOR v. STATE of Louisiana
    NO. 2015-KH-1698
    Supreme Court of Louisiana.
    January 11, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F. No. 327664; to the Court of Appeal, First Circuit, No. 2015 KW 0860

11 Granted. See Order Attached.


text:
    IN RE: Jose W. VEGA
    No. 2016-B-0816
    Supreme Court of Louisiana.
    January 13, 2017
   Applying for Rehearing of this Court’s action dated September 6, 2016

| Rehearing denied.


text:
    David HENRY v. Janice SULLIVAN
    No. 2016-CJ-1867
    Supreme Court of Louisiana.
    January 13, 2017
   Applying for Rehearing of this Court’s action dated November 18, 2016; Parish of St. Tammany, 22nd Judicial District Court Div K, No. 2013-12388; to the Court of Appeal, First Circuit, No. 2016 CU 0564

|¶Rehearing denied.


text:
    STATE EX REL. Roy JACKSON v. STATE of Louisiana
    NO. 2014-KH-2520
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 162069; to the Court of Appeal, Third Circuit, No. KH 14-00601

11 Denied. State ex rel. Fleury v. State, 93-2898 (La. 10/13/95), 661 So.2d 488.

GENOVESE, J., recused.


text:
    STATE EX REL. Roy JACKSON v. STATE of Louisiana
    NO. 2015-KH-0331
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 162,069; to the Court of Appeal, Third Circuit, No. KH 14-00877

| tDenied. Relator has exhausted his right to state collateral review. See State ex rel. Jackson v. State, 15-1731 (La. 10/10/16), 201 So.3d 879.

GENOVESE, J„ recused.


text:
    STATE EX REL. Roy JACKSON v. STATE of Louisiana
    NO. 2015-KH-0424
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 1620-69; to the Court of Appeal, Third Circuit, No. KH 14-00954

I! Denied. State ex rel. Fleury v. State, 93-2898 (La. 10/13/95), 661 So.2d 488.

GENOVESE, J., recused.


text:
    STATE EX REL. Roy JACKSON v. STATE of Louisiana
    NO. 2015-KH-0429
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 162,069; to the Court of Appeal, Third Circuit, No. KH 14-01119 AND KH 15-00018

| denied. Relator has exhausted his right to state collateral review. See State ex rel. Jackson v. State, 15-1731 (La. 10/10/16), 201 So.3d 879.

GENOVESE, J., recused.


text:
    STATE EX REL. Roy JACKSON v. STATE of Louisiana
    NO. 2015-KH-0744
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 162,069; to the Court of Appeal, Third Circuit, No. KH 15-00212

11 Denied. State ex rel. Fleury v. State, 93-2898 (La. 10/13/95), 661 So.2d 488.

GENOVESE, J., recused.


text:
    STATE ex rel. Roy Jackson v. STATE of Louisiana
    NO. 2015-KH-1097
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 162,069; to the Court of Appeal, Third Circuit, No. KH 15-00237.

| denied. Relator has exhausted his right to state collateral review. See State ex rel. Jackson v. State, 15-1731 (La. 10/10/16), 201 So.3d 879.

GENOVESE, J., recused.


text:
    STATE EX REL. Roy JACKSON v. STATE of Louisiana
    NO. 2015-KH-1104
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 162,069; to the Court of Appeal, Third Circuit, No. KH 15-00169.

1 iDenied. Relator has exhausted his right to state collateral review. See State ex rel. Jackson v. State, 15-1731 (La. 10/10/16), 201 So.3d 879.

GENOVESE, J., recused.


text:
    STATE EX REL. Roy JACKSON v. STATE of Louisiana
    NO. 2015-KH-1729
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 162069; to the Court of Appeal, Third Circuit, No. KH 15-00431

| iDenied. Relator has exhausted his right to state collateral review. See State ex rel. Jackson v. State, 15-1731 (La. 10/10/16), 201 So.3d 879.

GENOVESE, J., recused.


text:
    STATE of Louisiana v. Jamal Anthony CHARLES aka Jamal A. Charles
    NO. 2016-KO-0004
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. G, No. 11-705; to the Court of Appeal, Third Circuit, No. 15-518

| denied.


text:
    STATE of Louisiana v. Robert T. GRAY
    NO. 2016-KO-0006
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 508-955; to the Court of Appeal, Fourth Circuit, No. 2014-KA-1213

| denied.


text:
    STATE of Louisiana v. Charles Edward JACKSON a/k/a Charles E. Jackson
    NO. 2016-KO-0008
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. D, No. 316,659; to the Court of Appeal, Third Circuit, No. 15-557

LDenied.


text:
    STATE of Louisiana v. Jermaine L. RUMLEY and Glenn Elliott
    NO. 2016-KO-0065
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 510-755; to the Court of Appeal, Fourth Circuit, No. 2014-KA-1077

| denied.


text:
    STATE of Louisiana v. Irvin DARENSBOURG, Sr.
    NO. 2016-K-0151
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 503-292; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0372

11 Denied.


text:
    STATE of Louisiana v. Ceasar James WILLIAMS, a/k/a Ceaser James Williams
    NO. 2016-KO-0026
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 32530-11; to the Court of Appeal, Third Circuit, No. 15-498.

|, Denied.


text:
    STATE of Louisiana v. Irvin DARENSBOURG, Sr.
    NO. 2016-K-0115
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 503-292; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0372

| j Denied.


text:
    STATE EX REL. Roy JACKSON v. STATE of Louisiana
    NO. 2016-KH-0371
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 162069; to the Court of Appeal, Third Circuit, No. KH 15-00789

| denied. Relator has exhausted his right to state collateral review. See State ex rel. Jackson v. State, 15-1731 (La. 10/10/16), 201 So.3d 879.

GENOVESE, J„ recused.


text:
    STATE of Louisiana v. Mark MILLER
    NO. 2016-KP-0387
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. A, No. 10-F-6011; to the Court of Appeal, Fifth Circuit, No. 16-KH-23

| denied.


text:
    STATE EX REL. Roy JACKSON v. STATE of Louisiana
    NO. 2016-KH-0973
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 162,069; to the Court of Appeal, Third Circuit, No. KH 16-00256;

| TDenied. Relator has exhausted his right to state collateral; review. See State ex rel. Jackson v. State, 15-1731 (La. 10/10/16), 201 So.3d 879.

GENOVESE, J., recused.


text:
    STATE EX REL. Roy JACKSON v. STATE of Louisiana
    NO. 2016-KH-1522
    Supreme Court of Louisiana.
    January 13, 2017
   IN RE: Roy Jackson; —Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court, Div. B, No. 162069; to the Court of Appeal, Third Circuit, No. KH 16-00154

Denied. Relator has exhausted his right to state collateral review. See State ex rel. Jackson v. State, 15-1731 (La. 10/10/16), 201 So.3d 879.

GENOVESE, J., recused.


text:
    Stephen DEMPSEY, Aleta Dempsey, Billie Dore and Glenn Dempsey v. Michael DEMPSEY, In His Capacity as Executor of the Succession of Dorothy Polka Dempsey, Pamela Dempsey, and Michael Dempsey
    NO. 2016-CC-1919
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 176,073; to the Court of Appeal, First Circuit, No. 2016 CW 0789;

| (Denied.


text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, k/d/s Promix, LLC and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2016-CC-1997
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. B, No. 34,265; to the Court of Appeal, First Circuit, No. 2016 CW 0752

11Denied.

HUGHES, J., would grant.


text:
    Edwin Ray PARKER & Kenneth Brad Ott v. The SENATE OF the STATE of Louisiana, the Board of Supervisors of Louisiana State University & Agricultural & Mechanical College, & the State of Louisiana
    NO. 2016-CA-1690
    Supreme Court of Louisiana.
    January 13, 2017
   IN RE: Senate of the State of Louisiana, et al.; State of Louisiana—Defendants); Applying for Appeal, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 630,969

11 Denied as moot.

WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2016-CC-1985
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. B, No. 34316; to the Court of Appeal, First Circuit, No. 2016 CW 0986;

| denied.


text:
    STATE of Louisiana v. Chadwick MCGHEE
    NO. 2015-K-2140
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 176957; to the Court of Appeal, Third Circuit, No. 15-285

| t Granted.

GENOVESE, J., recused.


text:
    STATE of Louisiana v. Chadwick MCGHEE
    NO. 2015-K-2141
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 181216; to the Court of Appeal, Third Circuit, No. 15-286;

11 Granted.


text:
    STATE of Louisiana v. Joseph Michael MOULTRIE
    NO. 2015-K-2144
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 586,702; to the Court of Appeal, First Circuit, No. 2014-KA1535;

11 Granted.


text:
    Ron WARREN, individually and on Behalf of the Estate of Derek Hebert v. SHELTER MUTUAL INSURANCE COMPANY, et al
    NO. 2016-C-1647
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 2006-385; to the Court of Appeal, Third Circuit, No. 15-354 C/W 15-838 & 15-1113;

I, Granted.


text:
    Patrick FANNING v. Deborah SHEPHERD and Frank Delcorno
    NO. 2016-CC-1958
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 2011-53634; to the Court of Appeal, Fourth Circuit, No. 2016-C-0578

|, Granted and remanded to the Court of Appeal for briefing, argument and opinion.


text:
    ASSUMPTION PARISH POLICE JURY, et al. v. TEXAS BRINE COMPANY, LLC Assumption Parish Sheriff Mike Waguespack v. Texas Brine Company, LLC, et al. State of Louisiana v. Texas Brine Company, LLC, et al.
    NO. 2016-CC-2000
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. B, No. 34,386 C/W 34,389 C/W 34,391; to the Court of Appeal, First Circuit, No. 2016 CW 0720

| ;Denied.

HUGHES, J., would grant.


text:
    ASSUMPTION PARISH POLICE JURY, et al. v. TEXAS BRINE COMPANY, LLC, et al. Assumption Parish Sheriff Mike Waguespack v. Texas Brine Company, LLC, et al. State of Louisiana v. Texas Brine Company, LLC, et al.
    NO. 2016-CC-2001
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. B, No. 34,386 C/W 34,391 C/W 34,389; to the Court of Appeal, First Circuit, No. 2016 CW 0681

| iDenied.

HUGHES, J., would grant.


text:
    RELIABLE SOIL CO., INC. and Anthony James v. Ery D. GRIJALVA, Carlos Martinez, Ecequil Maldondo and Noe Terez
    NO. 2016-CC-2097
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Ju-dieial District Court Div. C, No. 2014-13562; to the Court of Appeal, First Circuit, No. 2016 CW 0857;

|! Denied.


text:
    RELIABLE SOIL CO., INC. and Anthony James v. Ery D. GRIJALVA, Carlos Martinez, Ecequil Maldondo and Noe Terez
    NO. 2016-CC-2098
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2014-13552; to the Court of Appeal, First Circuit, No. 2016 CW 0838

| t Denied.


text:
    THE LEMOINE COMPANY, LLC v. DURR HEAVY CONSTRUCTION, LLC and Ceco Concrete Construction, LLC
    NO. 2016-C-2100
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 2015-11345; to the Court of Appeal, First Circuit, No. 2015 CA 1997;

11 Denied.


text:
    Troy A. LANDRY; Jacob A. Landry; and Troy Landry Productions, LLC v. BASE CAMP MANAGEMENT, LLC; Creative Media Solutions, LLC; the Maughan Law Firm, LLC; and Roy H. Maughan, Jr.
    NO. 2016-C-2105
    Supreme Court of Louisiana.
    January 13, 2017
   IN RE: Base Camp Management, LLC, et al.; Creative Media Solutions, LLC; Roy H. Maughan, Jr.; The Maughan Law Firm, LLC; —Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. D, No. 34,318; to the Court of Appeal, First Circuit, No. 2015 CA 1377;

11 Denied.


text:
    GEORGIA-PACIFIC, LLC, As Successor In Interest To Georgia-Pacific Corporation v. DRESSER-RAND COMPANY and Dresser-Rand Group, Inc.
    NO. 2016-02114
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 585,122; to the Court of Appeal, First Circuit, No. 2015 CA 2002;

11 Denied.


text:
    NAVARRE CHEVROLET, INC. v. David BEGNAUD
    NO. 2016-C-2122
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2016-0758; to the Court of Appeal, Third Circuit, No. 16-465;

11Denied.


text:
    STATE of Louisiana v. Jeffrey T. KRUEBBE
    NO. 2016-OK-2124
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, Second Parish Court of Jefferson, No. S1286600; to the Court of Appeal, Fifth Circuit, No. 16-K-692

| denied.


text:
    Patrick JACK v. UNION TANK CAR COMPANY
    NO. 2016-C-2140
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 04, No. 13-07567; to the Court of Appeal, Third Circuit, No. 16-510

h Denied.


text:
    PATTERSON FUNERAL HOMES, LLC v. CATLIN SPECIALTY INSURANCE COMPANY, Capital Premium Financing, Inc. and Bayou Classic Insurance Services, Inc. and Equity Partner Insurance Services, Inc.
    NO. 2016-C-2143
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. A, No. 564,218-A; to the Court of Appeal, Second Circuit, No. 50,-831-CA

|! Denied.


text:
    Glenn TEMPLET, Sr. v. ONEBEACON AMERICAN INSURANCE COMPANY
    NO. 2016-CC-2144
    Supreme Court of Louisiana.
    January 13, 2017
   IN RE: Glenn Templet, Sr.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2016-1877; to the Court of Appeal, Fourth Circuit, No. 2016-C-0899;

h Denied.


text:
    PRIDE NETWORK, INC. v. The TOWN OF AMITE CITY
    NO. 2016-CC-2147
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. A, No. 2014-0002988; to the Court of Appeal, First Circuit, No. 2015 CW 1849

h Denied.

HUGHES, J„ would grant.


text:
    Eugene ROULY v. PERERO COMPANIES, INC. d/b/a DND Landscaping Luba Casualty Insurance Company
    NO. 2016-C-2148
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review Office of Worker’s Compensations District No. 4, No. 13-04469; to the Court of Appeal, Third Circuit, No. 16-385;

h Denied.


text:
    STATE EX REL. Shon Paul SHAW v. STATE of Louisiana
    NO. 2015-KH-1323
    Supreme Court of Louisiana.
    January 13, 2017
   Applying for Reconsideration of this Court’s action dated October 28, 2016, Parish of Caddo, 1st Judicial District Court Div. 3, No. 236,947; to the Court of Appeal, Second Circuit, No. 50183-KH

hNot considered. See La.S.Ct. Rule IX, § 6.

CRICHTON, Justice, recused.


text:
    Mandy BERNARD v. PROFESSIONAL PROPERTY MANAGEMENT
    NO. 2016-02149
    Supreme Court of Louisiana.
    January 13, 2017
   IN RE: Mandy Bernard;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. C, No. C-20155710; to the Court of Appeal, Third Circuit, No. 16-215;

| denied.


text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL COMPANY, et al.
    NO. 2016-CC-2178
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. A, No. 33796; to the Court of Appeal, First Circuit, No. 2016 CW 1084

I, Denied.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC, et al.
    No. 2016-CC-1449
    Supreme Court of Louisiana.
    January 13, 2017
   Applying for Reconsideration of this Court’s action dated November 15, 2016: Parish of Assumption, 23rd Judicial District Court Div. B., No. 34316; to the Court of Appeal, First Circuit, No. 2016 CW 0375.

liNot considered. See Supreme Court Rule IX, § 6.


text:
    STATE of Louisiana v. Robert Jack BOUDREAUX
    NO. 2016-KK-2198
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. 150839; to the Court of Appeal, Third Circuit, No. KW 16-00826

|, Denied.

GENOVESE, J., recused.


text:
    Leonard BRACKEN v. PAYNE & KELLER CO., INC., Workman Compensation Tribunal, District 5, Baton Rouge, Louisiana
    NO. 2016-C-1791
    Supreme Court of Louisiana.
    January 13, 2017
   Applying for Reconsideration of this Courts order dated November 29, 2016; Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. C636835; to the Court of Appeal, First Circuit, No. 2015 CA 1760.

|,Not considered. See Sup. Ct. Rule IX, § 6.


text:
    CROSSTEX ENERGY SERVICES, et al. v. TEXAS BRINE COMPANY, LLS, et al.
    NO. 2016-CC-1984
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. A, No. 34202; to the Court of Appeal, First Circuit, No. 2016 CW 0854

| denied.


text:
    STATE EX REL. Joe Nathan TUBBS v. STATE of Louisiana
    NO. 2016-KH-1752
    Supreme Court of Louisiana.
    January 13, 2017
   Applying for Reconsideration of this Court’s action dated November 7, 2016, Parish of Caddo, 1st Judicial District Court Div. 1, No. 78385.

| t Reconsideration denied.


text:
    Gustave J. LABARKE, Jr. v. OCCIDENTAL CHEMICAL COMPANY and Texas Brine Company, LLC
    NO. 2016-CC-1987
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. A, No. 33796; to the Court of Appeal, First Circuit, No. 2016 CW 0952

h Denied.


text:
    Brandon M. DONAHUE v. Sarah Ann DONAHUE
    No. 2016-CJ-1853
    Supreme Court of Louisiana.
    January 13, 2017
   Applying for Rehearing of this Court’s action dated November 18, 2016; Parish of St. Tammany, 22nd Judicial District Court Div. K, No. 2013-13390; to the Court of Appeal, First Circuit, No. 2016 CU 0757.

h Rehearing denied.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2016-CC-1998
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. B, No. 34316; to the Court of Appeal, First Circuit, No. 2016 CW 680;

|! Demed-

HUGHES, J., would grant.


text:
    STATE EX REL. Roy JACKSON v. STATE of Louisiana
    NO. 2015-KH-0687
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 162069; to the Court of Appeal, Third Circuit, No. KH 14-01136

11 Denied. Relator has exhausted his right to state collateral review. See State ex rel. Jackson v. State, 15-1731 (La. 10/10/16), 201 So.3d 879.

GENOVESE, J., recused.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2016-CC-1999
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. B, No. 34,316; to the Court of Appeal, First Circuit, No. 2016 CW 0764;

1; Denied.

HUGHES, J., would grant.


text:
    STATE EX REL. Roy JACKSON v. STATE of Louisiana
    NO. 2016-KH-154 6
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 162069; to the Court of Appeal, Third Circuit, No. KH 16-00152

| jDenied. Relator has exhausted his right to state collateral review. See State ex rel. Jackson v. State, 15-1731 (La. 10/10/16), 201 So.3d 879.

GENOVESE, J„ recused.


text:
    Errol G. WILLIAMS, Assessor, Parish of Orleans v. THE MUSES, LTD. 1; The Muses II, LP; and Louisiana Tax Commission Errol G. Williams, Assessor Parish of Orleans v. The Muses Ltd. and Louisiana Tax Commission
    NO. 2016-C-2034
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2015-2435 C/W 2015-4207; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0250 C/W 2016-CA-0251;

I, Denied.


text:
    BOH BROS. CONSTRUCTION CO., LLC v. CYPRESS BEND REAL ESTATE DEVELOPMENT COMPANY, LLC; The Lemoine Company, LLC; Eskew+Dumez+Ripple, APC; Professional Service Industries, Inc.; McKee & Deville Consulting Engineers, Inc.; Nash Lipsey Burch, LLC; Richard C. Lambert Consultants, Ltd.; Ohlson Lavoie Corp.; and The Ballard Group, Inc.
    NO. 2016-02099
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 2015-11184; to the Court of Appeal, First Circuit, No. 2015 CA 1996;

11 Denied.


text:
    Stacy MEAUX v. Larry MOORE, et al.
    NO. 2016-CC-2104
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. K, No. 101401-K; to the Court of Appeal, Third Circuit, Nos. CW 16-00664, CW 16-00666;

| denied.


text:
    Tina Katherine St. PHILIP v. Jeffrey Bryan MONTALBANO
    NO. 2016-CJ-2110
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 166147; to the Court of Appeal, First Circuit, No. 2016 CA 0254;

| denied.


text:
    US BANK, NATIONAL ASSOCIATION v. William V. BARTLETT, et al.
    NO. 2016-OC-2121
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 540-611B;

h Denied.

CRICHTON, J., recused.


text:
    STATE of Louisiana v. Jeffrey T. KRUEBBE
    NO. 2016-OK-2123
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, Second Parish Court of Jefferson, No. S1285600; to the Court of Appeal, Fifth Circuit, No. 16-K-686;

| iDenied.


text:
    Julian W. LONG, Eva Z. Long, and Long’s Preferred Products, Inc. v. Charles D. ELLIOTT and Vilar & Elliott, LLC
    NO. 2016-C-2139
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, No. 249,982-F; to the Court of Appeal, Third Circuit, No. 16-139;

1 j Denied.

GENOVESE, J., recused.


text:
    Michael G. FIELD, et al. v. LAFAYETTE PARISH SCHOOL BOARD
    NO. 2016-C-2141
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. A, No. 2014-0665; to the Court of Appeal, Third Circuit, No. 16-495;

| iDenied.


text:
    Randolph BARNETT v. CITY OF BATON ROUGE, Parish of East Baton Rouge, Through the Department of Public Works and the State of Louisiana, Through the Department of Transportation and Development
    NO. 2016-C-2142
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 627,429; to the Court of Appeal, First Circuit, No. 2016 CA 0222

h Denied.


text:
    STATE EX REL. Earton Lynn SMITH v. STATE of Louisiana
    NO. 2015-KH-1346
    Supreme Court of Louisiana.
    January 13, 2017
   Applying for Reconsideration of this Court’s action dated November 7, 2016, Parish of Bossier, 26th Judicial District Court Div. F, No. 148,130-131; to the Court of Appeal, Second Circuit, No. 50091-KH;

| í Reconsideration denied.


text:
    Alan C. RYAN v. ACE AMERICAN INSURANCE COMPANY, Kentwood Cooperative, Inc. and Jimmie Shropshire
    NO. 2017-000001
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 606594; to the Court of Appeal, First Circuit, No. 2016 CW 1229

hNot considered. Not timely filed. The court of appeal denied writs on August 8, 2016 and did not grant relators leave to supplement or refile their application. Accordingly, relators’ subsequent filings in the court of appeal are without effect. Because relators’ December 29, 2016 application was filed more than thirty days after the August 8, 2016 writ denial, it is untimely. See Supreme Court Rule X, § 5.


text:
    STATE of Louisiana v. Ty HILL
    NO. 2017-KK-0073
    Supreme Court of Louisiana.
    January 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 530-702; to the Court of Appeal, Fourth Circuit, No. 2017-K-0001

| t Stay denied; writ denied.

JOHNSON, C.J., would grant the writ.


text:
    STATE of Louisiana v. Todd Mat HERNE
    NO. 2017-KD-0126
    Supreme Court of Louisiana.
    January 21, 2017
   Applying For Supervisory and/or .Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, Nos. 16-1587, 16-1588; to the Court of Appeal, Fifth Circuit, No. 17-K-39;

| denied.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Frederick JOHNSON
    NO. 2017-KD-0117
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 517-803; to the Court of Appeal, Fourth Circuit, No. 2017-K-0060

Stay denied. Writ denied.


text:
    IN RE: APPEAL OF the DECISION OF the DISCIPLINARY BOARD
    NO. 16-PDB-025
    NO. 2016-OB-2020
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 16-PDB-025

|,Not considered. Not timely filed. See Supreme Court Rule XIX, § 30(C).


text:
    Sonja DEDAIS v. LOYOLA UNIVERSITY OF NEW ORLEANS and its Insurer United Educators Insurance Risk Retention Group, Inc.
    NO. 2016-CC-2226
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Supervisory and/or Remedial Wilts, Parish of Orleans, Civil District Court Div. J, No. 12-4027; to the Court of Appeal, Fourth Circuit, No. 2016-C-0869;

IrNot considered; not timely filed. See State v. Crandell, 05-1060 (La. 3/10/06), 924 So.2d 122; Morris v. Stueben, 01-0137 (La. 3/16/01), 781 So.2d 1220.


text:
    James DANIELS v. Richard L. MEYER, Jr., M.D.
    NO. 2017-CC-0035
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2012-5406 C/W 2014-10566; to the Court of Appeal, Fourth Circuit, No. 2016-C-0997;

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


text:
    Mary GRANGER v. B & B FARMS OF MAMOU, INC. and Louisiana Workers’ Compensation Corporation
    NO. 2016-C-1892
    Supreme Court of Louisiana.
    January 23, 2017
   Applying for Reconsideration of this Court’s action dated December 16, 2016, Office of Workers’ Compensation District 04, No. 13-07886; to the Court of Appeal, Third Circuit, No. 15-1208

hNot considered. See La.S.Ct. Rule IX, § 6.

JOHNSON, C.J., would grant.


text:
    STATE of Louisiana v. Dwayne DIAZ
    NO. 2016-KO-0094
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 518-162; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0354

hDenied.


text:
    STATE of Louisiana v. Demetrick TAYLOR
    NO. 2016-KO-0096
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 03-11-0939; to the Court of Appeal, First Circuit, No. 2015 KA 0758

11Denied.


text:
    STATE of Louisiana, By and Through Its Attorney General James Caldwell v. SMITHKLINE BREECHEM CORPORATION d/b/a Glaxosmithkline PLC State of Louisiana, By and Through Its Attorney General James Caldwell v. Pfizer Inc. and Warner-Lambert Company, LLC
    No. 2016-CC-2276
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 636,032; to the Court of Appeal, First Circuit, Nos. 2016 CW 1009, 2016 CW 1013

It Stay denied. Writ denied.


text:
    Brian LEWIS v. Governor Bobby JINDAL, et al.
    NO. 2016-CC-2223
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 638,918; to the Court of Appeal, First Circuit, No. 2016 CW 0947

| tDenied.


text:
    STATE of Louisiana v. Murry J. DUNCAN, Jr.
    NO. 2016-KK-2237
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. F, No. 14-CR9-125326; to the Court of Appeal, First Circuit, No. 2016 KW 1194

| TDenied.


text:
    STATE of Louisiana v. Desmond WATSON, Charles Stone, et al. State of Louisiana v. Charles Stone, Desmond Watson, et al.
    NO. 2016-KK-2152
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 526-943; to the Court of Appeal, Fourth Circuit, No. 2016-K-0947 C/W 2016-K-0961

h Denied.


text:
    Nadja ASHLEY, et al. v. STATE of Louisiana, LSUHSC-Shreveport
    NO. 2016-C-2227
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. A, No. 579,461-A; to the Court of Appeal, Second Circuit, No. 51,-041-CA;

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Wyatt WATTS
    NO. 2016-KK-2228
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 05-13-0382; to the Court of Appeal, First Circuit, No. 2016 KW1239;

h Denied.


text:
    STATE EX REL. Joe STEPHENS v. State of LOUISIANA
    NO. 2016-KH-1732
    Supreme Court of Louisiana.
    January 23, 2017
   Applying for Reconsideration of this Court’s action dated November 7, 2016, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 06-WCR-337; to the Court of Appeal, First Circuit, No. 2016 CW 0508

h Reconsideration denied.


text:
    STATE EX REL. Durelle BOWENS v. STATE of Louisiana
    NO. 2016-KH-1845
    Supreme Court of Louisiana.
    January 23, 2017
   Applying for Reconsideration of this Court’s order dated November 7, 2016, Parish of Orleans, Criminal District Court Div. A, No, 507-266; to the Court of Appeal, Fourth Circuit, No. 2016-K-0772

| Reconsideration denied.


text:
    James E. BOREN v. Earl B. TAYLOR
    NO. 2016-CC-2078
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. B, No. 15—2—3311—B; to the Court of Appeal, Third Circuit, No. 15-911

It Granted.

GENOVESE, J., recused.


text:
    STATE of Louisiana v. Cortez PRATT
    NO. 2016-KO-0123
    Supreme Court of Louisiana.
    January 25, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 2, No. 306351; to the Court of Appeal, Second Circuit, No. 50,-152-KA;

| jDenied.


text:
    STATE of Louisiana v. Darryl GRIFFIN
    NO. 2015-KO-1894
    Supreme Court of Louisiana.
    January 25, 2017
   Applying for Reconsideration of this Court’s action dated November 7, 2016, Parish of Orleans, Criminal District Court Div. J, No. 479-359; to the Court of Appeal, Fourth Circuit, No. 2015 KA 0125

|, Reconsideration not considered. See Louisiana Supreme Court Rule DC, § 6.


author: HIGGINBOTHAM, J.

text:
    Jarrett LEMMON and Hollie Lemmon v. Jonathan DE LA MORA, Allstate Fire and Casualty Insurance Company, and GEICO Casualty Company
    NO. 2016 CA 1004
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 17, 2017

      Cullen R. Clement, Joseph C. Possa, Baton Rouge, LA, Attorneys for Plaintiffs-Appellants, Jarrett Lemmon and Hollie Lemmon
    Stephen Dale Cronin, Baton Rouge, LA, Attorney for Defendant-Appellee, Geico Casualty Company
    Kimberly Louper Wood, Baton Rouge, LA, Attorney for Defendants-Appellees, Allstate Fire and Casualty Insurance Company and Jonathan de la Mora
    A. Chadwick Boykin, Baton Rouge, LA, Attorney for Defendant-Appellee, Rosendo de la Mora
    Meredith L. Simoneaux, C.Miehael Pfis-ter, Metairie, LA, Attorneys for Defendants-Appellees, Roofcorp USA, LLC and Praetorian Insurance Company
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

| gPlaintiffs-AppelIants, Jarrett and Hollie Lemmon, appeal a summary judgment that dismissed their personal injury claim against defendant-appellee, RoofCorp USA, LLC on finding that RoofCorp was not vicariously liable for a tort committed by Jonathan de la Mora at the time of the accident that injured Jarrett Lemmon.

FACTS AND PROCEDURAL HISTORY

On October 3, 2013, Jarrett Lemmon was involved in a motor vehicle accident with Jonathan de la Mora on Interstate 10 in Ascension Parish. After the accident, Mr. Lemmon, and his wife Hollie Lemmon, filed a petition for personal injury damages against Jonathan, Allstate Fire and Casualty Insurance Company, the liability insurance carrier for Jonathan’s vehicle, and GEICO Casualty Company, as the UM motorist carrier for the Lemmons’ vehicle pursuing damages for the injuries they allege were sustained as a result of the motor vehicle accident. After deposing Jonathan, the Lemmons amended their petition adding Rosendo de la Mora and Ro-ofCorp USA, LLC, as additional defendants alleging that, at the time of the accident, Jonathan was in the course and scope of his employment with Rosendo and RoofCorp and therefore Rosendo and Ro-ofCorp were vicariously liable for any damages caused by Jonathan.

In response, RoofCorp filed a motion for summary judgment seeking dismissal of the Lemmons’ claims against it on the grounds that Jonathan was not an employee of RoofCorp, nor was he in the course and scope of his employment at the time of the accident. After a hearing, the trial court signed a judgment granting Roof-Corp’s motion for summary judgment and dismissing the Lemmons’ claims against RoofCorp with prejudice. It is from this judgment that the Lemmons now appeal assigning error to the trial court’s grant of summary judgment in favor of RoofCorp.

| ^APPLICABLE LAW

On appeal, summary judgments are reviewed de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Sunrise Const. and Development Corp. v. Coast Waterworks, Inc., 2000-0303 (La.App. 1 Cir. 6/22/01), 806 So.2d 1, 3, writ denied, 2001-2577 (La. 1/11/02), 807 So.2d 235. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(B)(2). The initial burden of proof is on the moving party; however, if the moving party will not bear the burden of proof at trial, the moving party’s burden on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, the nonmoving party must produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact and the motion should be granted. La. Code Civ. P. art. 966(C)(2).

A genuine issue is a triable issue. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Id. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. King v. Illinois Nat. Ins. Co., 2008-1491 (La. 4/3/09), 9 So.3d 780, 784. | .(Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Manno v. Gutierrez, 2005-0476 (La.App. 1 Cir. 3/29/06), 934 So.2d 112, 116.

The applicable substantive law in this case is set forth in La. Civ. Code art. 2320, which provides, in pertinent part: “[mjasters and employers are answerable for the damage occasioned by their servants or overseers, in the exercise of the functions in which they are employed.” Specifically, an employer is liable for torts committed by its employee if, at the time, the employee was acting within the course and scope of his employment. Baumeister v. Plunkett, 95-2270 (La. 5/21/96), 673 So.2d 994, 996. However, under Louisiana law, a principal is generally not liable for the offenses committed by an independent contractor while performing its contractual duties. Davis v. Insurance Co. of North America, 94-0698 (La.App. 1 Cir. 3/3/95), 652 So.2d 531, 535, writ denied, 95-0840 (La. 5/5/95), 654 So.2d 334 An employee is acting within the course and scope of his employment when the employee’s action is “of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer.” Orgeron v. McDonald, 93-1353 (La. 7/5/94), 639 So.2d 224, 226-27.

In determining whether the employee’s conduct is employment-rooted, the court assesses several factors, including the payment of wages by the employer, the employer’s power of control, the employee’s duty to perform the particular act, the time, place, and purpose of the act in relation to service of the employer, the relationship between the employee’s act and the employer’s business, the benefits received by the employer from the act, the motivation of the employee for performing the act, and the reasonable expectation of the employer that the employee would perform the act. Reed v. House of Decor, Inc., 468 So.2d 1159, 1161 (La. l985). The determinative question in a vicarious liability claim is whether the employee’s tor-tious conduct “was so closely connected in time, place and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest.” Richard v. Hall, 2003-1488 (La. 4/23/04), 874 So.2d 131, 139.

The general rule is that an employee, in going to and from work, is not considered as acting within the course and scope of his employment so as to render the employer liable to third persons for the employee’s negligence. See Orgeron, 639 So.2d at 227. The jurisprudence has recognized exceptions to the general rule depending on the circumstances of the case.

DISCUSSION

In favor of its motion for summary judgment, RoofCorp attached a signed Independent Contractor Agreement it had with Jonathan’s father, Rosendo, to provide roofing services; an affidavit of Kristen Bentley, who was the human resources manager at RoofCorp; and portions of the deposition testimony given by Jonathan. In opposition to RoofCorp’s motion for summary judgment, the Lemmons attached the deposition of Ms. Bentley, the deposition of Rosendo, and additional deposition testimony of Jonathan.

In her affidavit and deposition, Ms. Bentley pointed out that RoofCorp did not hire or pay the laborers working for Rosendo, did not have any paperwork regarding Jonathan, and did not know how many roofers Rosendo hired for each job. Ms. Bentley testified that RoofCorp did not have the power to fire Jonathan.

In his deposition, Jonathan testified that while at work, he reported either to Rosendo or his brother Octavio, and Rosendo provided him with the necessary work tools. Jonathan testified that weekly, he would give his timesheets to Rosendo, and Rosendo paid him and signed his paychecks. Jonathan stated that he was paid ^hourly, and on a typical day he clocked in around 7:00 a.m., took a one-hour lunch break around 12:00 p.m., and clocked out around 5:00 p.m.

Jonathan’s accident with Mr. Lemmon occurred at approximately 5:24 p.m. when, according to Jonathan, he was on his way home from working at G. W. Carver Elementary School. Jonathan testified that two of his co-workers, who lived with him and generally rode to and from work with him, were also in the vehicle.

According to the deposition of Rosendo, at the time of the accident, he was installing a roof for RoofCorp at G. W. Carver, and he hired Jonathan as a laborer to work with him on that job. Rosendo testified that Jonathan was working at G.W. Carver on the day of the accident. Rosendo stated that it was not part of Jonathan’s job to bring his co-workers home from work, and that he did not pay Jonathan for that time. Rosendo also testified that Jonathan was driving a vehicle owned by him.

While the Lemmons presented some evidence questioning the independent contractor status of Rosendo, there was no evidence presented to raise a genuine issue of material fact regarding whether Jonathan was an employee of RoofCorp. Jonathan was hired by Rosendo, and he was paid and supervised by Rosendo. RoofCorp was not aware of who Rosendo hired as laborers on his roofing jobs, and in the independent contract, RoofCorp gave Rosendo the authority to employ his own means and methods in performance of his services. RoofCorp did not have paper work on Jonathan, did not have the power to fire him, and did not exert control over his work activities. For these reasons, we find no merit to the Lemmons’ contention that genuine issues of material fact remain regarding whether Jonathan was an employee of RoofCorp.

Additionally, regardless of whether Jonathan was an employee of RoofCorp, Jonathan was clearly not in the course and scope of his employment at the time of the accident. Jonathan was admittedly driving home from work at the time of the accident, was not on the clock, was not being paid by Roof Corp or Rosendo, was |7not required to bring home his co-workers as part of his employment, was not performing any duty of his employment while in route, and was not driving a vehicle owned by RoofCorp. Jonathan was not in the course and scope of any employment at the time of the accident because his work duties for the day had ended, and he was on his way home. Jonathan’s accident fits squarely within the general rule that an employee coming from work is outside the scope of his employment, and therefore, his employer is not vicariously liable for his conduct.

For the foregoing reasons, we conclude that there is no genuine issue of material fact regarding whether Jonathan was an employee of RoofCorp or in the course and scope of his employment at the time of the accident. Therefore, RoofCorp was entitled to summary judgment as a matter of law.

CONCLUSION

The trial court judgment granting summary judgment in favor of RoofCorp is affirmed. All costs of this proceeding are assessed to plaintiffs-appellants, Jarrett and Hollie Lemmon.

AFFIRMED.

Theriot, J., concur.

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act. Therefore, we refer to the former version of the article in this case. See Acts 2015, No. 422, §§ 2 and 3.


text:
    STATE of Louisiana v. Derrick Patrick JAMES
    NO. 2016 KA 1250
    Court of Appeal of Louisiana, First Circuit.
    FEBRUARY 17, 2017

      Joseph L. Waitz, Jr., District Attorney, Sye Broussard, Assistant District Attorney, Houma, LA, Attorney for Appellee, State of Louisiana
    Lieu T. Yo Clark, Mandeville, LA, Attorney for Defendant-Appellant, Derrick Patrick James
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

laThe defendant, Derrick Patrick James, was charged by an amended bill of information with aggravated assault with a firearm, a violation of La. R.S. 14:37.4 (count 1); aggravated criminal damage to property, a violation of La. R.S. 14:55 (count 2); and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count 3). The defendant pled not guilty to the charges and, following a jury trial, was found not guilty on counts 1 and 2, and guilty as charged on count 3 (possession of a firearm by a convicted felon). The defendant was sentenced to twelve years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant filed a motion to reconsider sentences, which was denied. The defendant now appeals, designating two assignments of error regarding his sentence.

FACTS

On the afternoon of March 28, 2015, on Rose Marie Lane, in the Johnson Ridge area in Thibodaux, Louisiana, several people saw the defendant holding a firearm. Two eyewitnesses testified at trial that they saw the defendant actually shooting the firearm. One of those eyewitnesses described the weapon the defendant was shooting as an AK-47 assault rifle.

Police at the scene found four spent 7.62 x .39 Wolf brand caliber cartridge cases on Rose Marie Lane. Testimony from the police and from Charles R. Watson, Jr., an expert in firearms examination, indicated that the AK-47 firearm fires the 7.62 x .39 caliber round cartridges, According to Watson, the four cartridge cases found at the scene were fired from the same weapon. The defendant was arrested at his grandmother’s house on Rose Marie Lane. No gun was found.

The defendant did not testify at trial.

ASSIGNMENTS OF ERROR

In two related assignments of error, the defendant argues, respectively, that |sthe trial court erred in denying his motion to reconsider sentence, and that his sentence is unconstitutionally excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La.App. 1 Cir. 5/6/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Holts, 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of Criminal Procedure Article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code of Crim. P. Art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La.App. 1 Cir. 5/9/03), 849 So.2d 566, 569.

The articulation of the factual basis for a sentence is the goal of La. Code Crim. P. Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record dearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. Code Crim. P. Art. 894.1. State v. Landos, 419 So.2d 475, 478 (La. 1982). The trial judge should review the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

With a sentencing exposure of ten to twenty years imprisonment, the defendant was sentenced to twelve years at hard labor. See La. R.S. 14:95.1(B). The defendant argues in brief that he should have been sentenced to the minimum sentence of ten years, and that the twelve-year sentence goes beyond any societal purpose in punishing him and will exact needless pain and suffering on him and his family. According to the defendant, the trial court should have considered his sentence in light of the fact that he was not found guilty of the aggravated assault with a firearm and aggravated criminal damage to property charges, which indicates the jury took issue with testimony that he had “fired a gun that day.”

We note that mere possession of a firearm by a convicted felon, rather than having fired the gun, is all that is necessary to have committed the offense proscribed by La. R.S. 14:95.1(A). In any case, it is clear the trial court considered La. Code Crim. P. Art. 894.1, as well as the defendant’s criminal history, in arriving at the appropriate sentence. In its reasons for sentence, the trial court stated in pertinent part:

I’ve studied the nature of the crime involved for the purpose of determining an appropriate sentence in this case and note that you have a, either three or four previous felony convictions!.]
The Court has considered the other circumstances under the sentencing article, 894[.l].
The biggest concern the Court has with you is your previous felony convictions.
Well, the Court, considering all the evidence, the previous record of the defendant, everything else that, other, and also looking at Article 89[4].l of the Code of Criminal Procedure, the Court will sentence the defendant as follows:
Un light of all the findings, the defendant is sentenced to be imprisoned at hard labor ... for a term of 12 years without the benefit of probation, parole or suspension of sentence.

Considering the trial court’s review of the circumstances, the nature of the crime, and the fact that the sentence is only two years more than the statutorily allowed minimum sentence, we find no abuse of discretion by the trial court. The trial court provided, and the record reveals, sufficient justification in imposing a twelve-year sentence. Accordingly, the sentence imposed is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. The trial court did not abuse its discretion in denying the motion to reconsider sentence.

These assignments of error are without merit.

SENTENCING ERROR

Under La. Code Crim. P. Art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record, we have found a sentencing error. See State v. Price, 2005-2514 (La.App. 1 Cir. 12/28/06), 952 So.2d 112, 123-24 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.

Whoever is found guilty of violating the possession of a firearm by a convicted felon provision shall be imprisoned at hard labor for not less than ten nor more than twenty years without benefits and be fined not less than one thousand dollars nor more than five thousand dollars. La. R.S. 14:95.1(B). The record, including the minutes, reveals that the trial court failed to impose the mandatory fine. Accordingly, the defendant’s sentence is illegally lenient. Since the sentencing error, however, is not inherently prejudicial to the defendant, and neither the State nor the defendant has raised this sentencing issue on appeal, we decline to correct this error. See Price, 952 So.2d at 123-25.

CONVICTION AND SENTENCE AFFIRMED.


text:
    Thomas and Suzette HOFFMANN v. B & G, INC. d/b/a Splash Pools & Spa
    NO. 2016 CA 1001
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 21, 2017

      Erin Wiley Lanoux, Robert R. Percy, John Troutman, Matthew Ian Percy, Gonzales, Louisiana, Attorneys for Plaintiffs-Appellees, Thomas and Suzette Hoffmann
    Richard E. Hiller, Shreveport, Louisiana, Attorney for Defendant-Appellant, B & G, Inc. d/b/a Splash Pools and Spa
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

lain this redhibitory action, the defendant, B & G, Inc. d/b/a Splash Pools & Spa (“Splash Pools”), appeals from the trial court’s judgment in favor of the plaintiffs, Thomas and Suzette Hoffmann, for reimbursement of the purchase price and reasonable expenses occasioned by Splash Pools’ sale of a pool to the Hoffmanns.

FACTS AND PROCEDURAL HISTORY

In April 2011, Thomas and Suzette Hoff-mann purchased a 24’ X 54’ Protégé aluminum pool from Splash Pools at its Baton Rouge retail store, and the pool was installed in-ground at the Hoffmanns’ residence in Prairieville, Louisiana. Two years later, the Hoffmanns uncovered their pool to discover that its liner was floating in the water. The Hoffmanns immediately reported the problem to Splash Pools, who informed them it was not responsible for the installation of manufactured pools. However, Splash Pools agreed to work with the Hoffmanns to resolve their problems in a satisfactory manner. Splash Pools arranged for Richard Howard, a pool installer, to inspect the Hoffmanns’ pool, and he subsequently reported that it needed to be completely redone as it was installed incorrectly. Howard was not paid by the Hoff-manns, but was provided by Splash Pools. Following Howard’s inspection, Splash Pools contacted Wilbar International (“Wilbar”), the manufacturer of the Hoff-manns’ pool, and Wilbar compensated Splash Pools by giving it a credit to remove the Hoffmanns’ existing pool and install a new one.

Splash Pools arranged for Tony Coff-man to complete the demolition of the first pool and to install the second pool. Splash Pools directed Mr. Coffman to the Hoff-manns’ home, and it directly paid him for the pool work, a total of $5,500.00 through two checks as the instillation progressed. For the final payment, Splash Pools issued a check to Suzette Hoffmann for $3,500.00, and instructed her to withhold payment of those funds to Mr. Coffman until he satisfactorily completed the installation of their pool.

|aMr. Coffman began his demolition/installation work in August 2013, finishing two months later in October. Almost immediately after Mr. Coffman finished installing the second pool, the Hoffmanns experienced problems with the pool’s installation and the concrete deck surrounding it.

On March 11, 2014, the Hoffmanns filed a petition for damages, naming Splash Pools as the defendant, and asserting claims of redhibition and breach of contract. On December 17, 2014, the Hoff-manns filed a first supplemental and amending petition naming Mr. Coffman as an additional defendant and alleging tort liability for his faulty installation of the second pool.

On March 30, 2015, the Hoffmanns filed a motion for summary judgment, seeking to establish themselves as third-party beneficiaries of the agreement between Splash Pools and Wilbar. As such, the Hoffmanns argued they were “entitled to demand performance from Splash Pools for what was stipulated: a newly installed, usable swimming pool.” The Hoffmanns likewise filed a motion for summary judgment on vicarious liability, seeking to establish an employer-employee contractual relationship between Splash Pools and Mr. Coffman.

In a judgment signed on June 22, 2015, the trial court granted the Hoffmanns’ motion for summary judgment finding that they were beneficiaries of a stipulation pour autrui between Splash Pools and Wilbar, and denied the Hoffmanns’ motion for summary judgment regarding vicarious liability of Splash Pools for the actions of Mr. Coffman. Splash Pools filed a writ application challenging the trial court’s decision. Splash Pools’ writ application was denied by this court on October 19, 2015. Hoffmann v. B & G Inc., 2015-1060 (La. App. 1st Cir. 10/19/2015)(unpublished action).

Thereafter, the matter went to trial. After the trial and submission of post-trial memoranda, the trial court rendered judgment in favor of the Hoffmanns, pursuant to La. Civ. Code art. 2531, for their redhi-bition claim in the amount of $28,534.63, | ¿consisting of reimbursement of the purchase price and reasonable expenses occasioned by the sale, plus legal interest from the date of the Hoffmanns’ payment to Splash Pools, April 23, 2011, and all costs of the proceedings. It is from this judgment that Splash Pools appeals, citing the following assignments of error:

1. The trial court erred in finding that the Hoffmanns had proved a valid claim of redhibition based on the failure to remedy the defect in the first pool.
2. The trial court erred in finding that Splash Pools had the right to exercise significant control over the independent pool installer, Mr. Coffman, with respect to the installation of the Hoff-manns’ second pool.
3. The trial court erred in awarding damages to the Hoffmanns based on a redhibition claim to which they were not entitled.
4. The trial court erred in awarding damages to the Hoffmanns for which the Hoffmanns failed to provide any credible and competent proof thereof and in providing for interest on these damages.
5. The trial court erred in failing to award Splash Pools any credit for the two (2) years of use and enjoyment that the Hoffmanns received with the first pool.
6. The trial court erred in failing to find comparative fault that was attributable to the Hoffmanns and Mr. Coff-man.

In response, the Hoffmanns answered the appeal seeking additional damages for their third-party-beneficiary claim, for their general damages claim based on mental anguish and inconvenience, and for their general property damages claim.

LAW AND ANALYSIS

REDHIBITION

In its first three assignments of error, Splash Pools contends that the Hoffmanns do not have a valid claim in redhibition because their claim was based on defects with the first pool which was completely removed from the Hoffmanns’ residence, and the second pool provided by Splash Pools was not defective, but rather was improperly installed. It is Splash Pools’ position that the trial court erred in finding that Splash Pools had the right to exercise significant control over the independent pool installer, Mr. Coffman. Additionally, Splash Pools argues that it [Swas not given notice of problems with the second pool nor was it given an opportunity to repair any issues with the second pool.

The existence of a redhibitory defect is a question of fact, which cannot be disturbed on appeal unless the record as a whole establishes that the finding is manifestly erroneous or clearly wrong. Landaiche v. Supreme Chevrolet, Inc., 602 So.2d 1127, 1131 (La. App. 1st Cir. 1992). Similarly, the avoidance of a sale as a remedy for defects in a product is a factual question, the resolution of which is best left to the trier of fact. Vincent v. Hyundai Corp., 633 So.2d 240, 243 (La. App. 1st Cir. 1993), writ denied, 93-3118 (La. 2/11/94), 634 So.2d 832. A court of appeal may not set aside a fact-finder’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Before an appellate court may reverse a fact-finder’s determinations, it must find from the record that a reasonable factual basis does not exist for the findings and that the record establishes that the findings are clearly wrong. Stobart v. State, through Dept. of Transp. and Develop., 617 So.2d 880, 882 (La. 1993).

Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice. See La. Civ. Code art. 2520. In a suit for redhibition, the plaintiff must prove: 1) the seller sold the thing to him and it is either absolutely useless for its intended purpose or its use is so inconvenient or imperfect that had he | (¡known of the defect, he would never have purchased it; 2) the thing contained a non-apparent, or latent, defect at the time of sale; and 3) the seller was given an opportunity to repair the defect. Jackson v. Slidell Nissan, 96-1017 (La.App. 1 Cir. 5/9/97), 693 So.2d 1257, 1262.

In this matter, the Hoffmanns wanted to purchase an in-ground pool for their grandchildren to enjoy when they came to visit. The Hoffmanns went to Splash Pools to look at their options and decided to purchase the Protege pool. Splash Pools advertised the pool for a single price “fully installed,” and gave the Hoffmanns the name of an installer to install their pool.

After the pool was installed in-ground, the Hoffmanns used the pool for two summers. However, when removing the pool cover in April 2013, the Hoffmanns discovered that the pool liner was detached and floating in the water. Mrs. Hoffmann reported the problem to Splash Pools, who stated that it was a retail store and not responsible for repair. Splash Pools ultimately arranged for Richard Howard, a pool installer, to inspect the Hoffmanns’ pool, Mr. Howard reported to Splash Pools that the pool needed to be completely redone.

Subsequently, Splash Pools discussed the issue about the Hoffmanns’ pool with Wilbar. After discussing the problems with Wilbar, it was revealed that Wilbar no longer recommended installation of the Protege pool purchased by the Hoffmanns to be completely in-ground, and instead recommended installation semi-in-ground. Wilbar determined that the model of pool purchased by the Hoffmanns was not suitable to be placed completely in-ground. Wilbar agreed to provide Splash Pools [7with a credit sufficient to demolish the Hoffmanns’ first pool and install a new pool that was suitable to be installed completely in-ground.

After reaching its agreement with Wil-bar, Splash Pools contacted Mr. Coffman to demolish the Hoffmanns’ old pool and install a new pool. Mr. Coffman was a pool installer that Splash Pools had previously recommended to install pools for other customers. Without any input whatsoever from the Hoffmanns regarding who the installer would be, Splash Pools informed the Hoffmanns that Mr. Coffman was coming to their home to remove the Protege pool and install a new in-ground pool. After Mr. Coffman contacted the Hoffmanns, the Hoffmanns and Mr. Coffman signed a “Pool Installation Contract” for Mr. Coff-man to install a new pool. The contract noted that $9,500.00 was paid in full and that the Hoffmanns were “not responsible for payment.” Splash Pools paid Mr. Coff-man in installments of $3,000.00 and $2,500.00 as he completed the work. The final payment of $3,500.00 was given to Mrs. Hoffmann by Splash Pools to pay Mr. Coffman when all the work was completed. Mrs. Hoffmann testified that Splash Pools orchestrated the entire installation and she was “totally unaware” that she was given a choice on who installed the second pool. Mrs. Hoffmann stated that she did not select Mr. Coffman, nor did she pay him.

Unfortunately, the pool installed by Mr. Coffman had several problems. As described by Maitland Hall, a pool builder with 35 years of experience who inspected the pool on the Hoffmanns’ behalf, it was “a struggle to use” and “a disaster.” Mr. Hall informed the trial court about all the problems with the second pool: most notably, that the pool was not level, the pool walls were bowed, the pool was leaking, and the cement around the pool sloped toward the pool rather than away from the pool. He indicated that the problems with the second pool were due to | ¡¿faulty installation and npt with the pool itself. The Hoffmanns were never able to use the second pool installed by Mr. Coffman.

In this matter, the evidence reveals that the first Protege pool sold to the Hoff-manns by Splash Pools as an in-ground pool was not suitable to be installed in-ground and was absolutely useless for its intended purpose. Mrs. Hoffmann testified that she “would never have purchased that pool” had she known that it would collapse in on itself and be unusable. The defect in the pool when installed in-ground was unknown and non-apparent to the Hoffmanns at the time of the sale.

A good faith seller is to be afforded a reasonable opportunity to repair the defect in the light of the particular circumstances of each case. La. Civ. Code art. 2531; Reid v. Leson Chevrolet Co., Inc., 542 So.2d 673, 675 (La.App. 5th Cir. 1989). What constitutes a reasonable opportunity to repair a defective product is a question for the finder of fact. Reid, 542 So.2d at 675.

At the time Splash Pools sold the Protege pool to the Hoffmanns, it was not the position of Wilbar that the Protege pool purchased by the Hoffmanns was unsuitable to be installed completely in-ground. Any defect in the pool’s suitableness for installation in-ground was not known nor apparent to Splash Pools at that time. Therefore, we agree with the trial court’s conclusion that Splash Pools was a good faith seller, and that Splash Pools was given an opportunity to provide the Hoff-manns with a workable in-ground pool.

The Hoffmanns’ redhibition claim stems from Splash Pool’s sale of the first Protege pool to the Hoffmanns, and the failure of Splash Pools to remedy the redhibitory defect. It is immaterial that Splash Pool’s attempt to replace the original defective pool with a second pool failed as a result of faulty installation, because in the end, Splash Pools, who provided the installer, Mr. Coffman, and paid him for his work, did not give the Hoffmanns the primary object of the initial sale, an in-ground swimming pool free from defects.

[ sSplash Pool’s contention that there was no defect in the second pool is of no relevance. The trial court did not find a redhibitory defect in the second pool, but instead concluded, considering all the transactions between Splash Pools and the Hoffmanns as a whole, that the primary object of the sale between the Hoffmanns and Splash Pools was a workable in-ground pool. The first pool was defective. Splash Pools was given a reasonable opportunity to repair the defect and provide a workable in-ground pool. The evidence revealed that Splash Pool’s efforts to provide the Hoffmanns with a usable pool were not successful.

Therefore, we find no manifest error in the trial court’s factual findings that Splash Pools sold the Hoffmanns a pool that was absolutely useless for its intended purpose (an in-ground swimming pool), that this defect was not apparent at the time of the sale, and that Splash Pools was given a reasonable opportunity to repair the defective pool. Splash Pools failed to provide the Hoffmanns with a defect-free usable in-ground swimming pool. Thus, we find the trial court correctly concluded that the Hoffmanns met each of the requirements for a valid claim in redhibition.

DAMAGES

In its fourth assignment of error, Splash Pools contends that the trial court erred in awarding damages to the Hoffmanns for which the Hoffmanns failed to provide any credible and competent proof thereof and in providing for interest on these damages.

A reviewing court should not set aside an award of special damages unless an analysis of the facts and circumstances reveals an abuse of discretion in setting the award. See Stevens v. Winn-Dixie of Louisiana, 95-0435 (La.App. 1 Cir. 11/9/95), 664 So.2d 1207, 1214. Further, the standard for appellate review of general damages is set forth in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert denied, 510 U.S. 1114,114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), wherein the Louisiana Supreme Court stated that the discretion of the trier of fact is |ingreat, and even vast, so that an appellate court should rarely disturb an award of general damages.

Louisiana Civil Code article 2531 provides for the liability of a good faith seller, who knew not of the defect in the thing sold, stating in pertinent part:

A seller who did not know that the thing he sold had a defect is only bound to repair, remedy, or correct the defect. If he is unable or fails so to do, he is then bound to return the price to the buyer with interest from the time it was paid, and to reimburse him for the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, less the credit to which the seller is entitled if the use made of the thing, or the fruits it has yielded, were of some value to the buyer.

Under Article 2531, the seller is bound to repair the vices in the thing sold. Jurisprudence has interpreted this to mean that the buyer is entitled to be returned as near as possible to status quo at the time of the sale. See Busenlener v. Peck, 316 So.2d 27, 31 (La. App. 1st Cir. 1975).

Having found that Splash Pools failed to repair the Hoffmanns’ pool, Splash Pools is bound to return the price to the Hoffmanns with interest from the time it was paid, and to reimburse the Hoffmanns for the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing. See La. Civ. Code art. 2531.

In this matter, the trial court awarded damages in the amount of $28,534.63 to the Hoffmanns. The trial court’s award included $9,890.66 for the cost of the first pool and $3,425.00 for installation of the first pool. The additional damages awarded by the trial court were based on testimony of Mrs. Hoffmann regarding the expenses they incurred for fencing and concrete around the pool, tree removal, tractor work necessary to install the pool, chemicals and plumbing for the pool, and pool steps and ladders. Additionally, Mrs. Hoffmann provided an invoice from Mr. Doug Palmer, a general contractor, with a cost estimate to demolish the second pool. After careful analysis of the facts and circumstances in this case, we find no abuse of Indiscretion by the trial court finding these expenses were reasonable expenses occasioned by the sale.

We do find merit to Splash Pools’ contention that the trial court erred in ordering that it pay legal interest on the total damage award from the April 23, 2011 date that the Hoffmanns purchased the pool, rather than on the price the Hoffmanns paid for the pool. Article 2531 provides that the seller is bound to return the price to the buyer with interest from the time it was paid, and to reimburse him for the reasonable expenses occasioned by the sale. Thus, the interest from April 23, 2011, is only applicable to the $9,890.66 price the Hoffmanns’ paid to Splash Pools for the first pool. Interest on the remainder of the damages awarded by the trial court should run from March 11, 2014, the date of judicial demand by the Hoffmanns.

CREDIT FOR USE

In its fifth assignment of error, Splash Pools contends that the trial court erred in failing to award Splash Pools any credit for the two years of use and enjoyment that the Hoffmanns received with the first pool.

Louisiana Civil Code article 2531 provides that a good faith seller is entitled to a credit if the use made of the thing, or the fruits it has yielded, were of some value to the buyer. However, it is well-established in our jurisprudence that the seller who asserts such entitlement bears the burden of proving the value of the use of the defective thing. See Lovell v. Blazer Boats Inc., 2011-1666 (La.App. 1 Cir. 10/24/12), 104 So.3d 549, 556; Alleman v. Hanks Pontiac-GMC, Inc., 483 So.2d 1050, 1057 (La. App. 1st Cir. 1985), writ denied, 485 So.2d 54 (La. 1986).

In Alexander, the Louisiana Supreme Court explained a defendant/seller’s entitlement to a credit for use of a thing having a redhibitory defect:

A credit for a purchaser’s use of a product may be proper in certain instances.... Compensation for the buyer’s use, however, ought not be granted automatically by the courts; even the value of an extensive use may be overridden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller’s attempts to repair.

Alexander v. Burroughs Corp., 359 So.2d 607, 610-11 (La. 1978).

The grant of a credit for use is discretionary with the trial court. Guillory v. Jim Tatman’s Mobile Homes, Inc., 490 So.2d 1185, 1189 (La. App. 3rd Cir. 1986). Requests for credit upon rescission of sale may not be based on use alone without evidence of any value from use. Splash Pools did not plead entitlement to a credit for the Hoffmanns’ use of the first pool, and the only evidence presented in court regarding use of the pool was the Hoff-manns’ testimony that they used the pool for two summers before the problems with the pool became evident. As stated previously, the determination of issues of fact are within the duty of the trial judge, and after a review of the record, no manifest error can be found in not allowing Splash Pools a credit for the Hoffmanns’ use of the pool.

COMPARATIVE FAULT

In its final assignment of error, Splash Pools contends that the trial court erred in failing to find comparative fault that was attributable to the Hoffmanns and Mr. Coffman. Splash Pools contends that the Hoffmanns, who supervised Mr. Coffman in installing the second pool, should bear some responsibility for the poor installation of the second pool. We find no merit to Splash Pools’ assertion. The Hoffmanns did not choose Mr. Coff-man and were not experts in how a pool should be properly installed.

Splash Pools also asserts that Mr. Coff-man’s negligence in the installation of the second pool should have been considered in the trial court’s award. Mr. Coffman was a defendant in the case, but the trial court did not assign any fault to Mr. Coff-man, basing its award in redhibition rather than tort.

A redhibition suit is a contractual action. Comparative fault may not be asserted as a defense in an action for redhibition. See Touro Infirmary v. Sizeler Architects, 2004-0634 (La. App. 4th Cir. 3/23/05), 900 So.2d 200, 205-06, writs denied, 2004-2114 (La. 5/6/05), 901 So.2d 1093 and 2005-1315 La. 1/06, 920 So.2d 232 (finding that the defense of comparative negligence, as codified by La. C.C. art. 2323, does not apply to an action sounding in redhibition, which is governed by the laws of sale and contract). Accordingly, we find no error in the trial court’s decision not to apportion fault to Mr. Coffman.

THE HOFFMANNS’ ANSWER TO THE APPEAL

NONPECUNIARY DAMAGES

The Hoffmanns request an award for general damages for mental anguish and inconvenience. Generally, the amount of damages a plaintiff can recover depends upon the type of seller involved. Under La. Civ. Code art. 2531, a good faith seller, namely one who knew not of the vices in the thing he sold, is required to repair, remedy, or correct the vices or defects in the thing which he sold. If he is unable to do so, he must restore the purchase price and reimburse the reasonable expenses occasioned by the sale and those expenses incurred for the preservation of the thing sold. La. Civ. Code art. 2531. Louisiana Civil Code article 2545 provides that the seller who knows the vice of the thing which he sells and omits to declare it is answerable to the buyer in damages. Damages for mental anguish are only recoverable from a “bad faith” seller. Burch v. Durham Pontiac Cadillac, Inc., 564 So.2d 380, 384 (La. App. 1st Cir.), writ denied, 569 So.2d 968 (La. 1990). Because the record does not support a conclusion that Splash Pools knew or should have known of the vice in the Protege pool at the time of the initial sale, we agree with the trial court’s finding that Splash Pools was a good-faith seller. Thus, an award for non-pecuniary damages is not appropriate under the facts of this case.

PROPERTY DAMAGES

The Hoffmanns requested. that they be reimbursed for $5,000.00 for damage to their property incurred while Mr. Coffman was installing the second pool. The Hoffmanns offered limited evidence of property damage reasonably occasioned by Splash Pools’ sale of the first pool to the Hoffmanns. Accordingly, we find no error |uin the trial court’s decision to not award reimbursement for damages allegedly incurred on the Hoffmanns’ property.

THIRD-PARTY BENEFICIARY CLAIM

Finally, the Hoffinanns allege that as a third-party beneficiary to the agreement between Wilbar and Splash Pools, they are entitled to damages for Splash Pools’ failure to perform the stipulation. Wilbar provided Splash Pools a $9,000.00 credit so that Splash Pools could install a new pool for the Hoffmanns. The Hoffmanns contend that they are entitled to the $9,000.00 that Wilbar credited to Splash Pools, as well as, the value of the second pool. The evidence shows that Splash Pools did not retain any of the credit given to it by Wilbar, and through the trial court’s award of damages in red-hibition the Hoffmanns have already received compensation for the damages sustained. Thus, we find no merit to the Hoffmanns’ assertion that they are entitled to additional damages based on the agreement between Wilbar and Splash Pools.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is amended to provide that the legal interest from April 23, 2011, be only on the $9,890.66 the Hoffmanns initially paid for the first pool, with legal interest on the remainder of the damages awarded by the trial court to run from March 11, 2014, the date of judicial demand. In all other respects, the judgment of the trial court is affirmed. All costs of the appeal are to be divided between the plaintiffs, Thomas and Suzette Hoffmann and the defendant, B & G Inc. d/b/a Splash Pools & Spa.

AMENDED IN PART, AND AS AMENDED, AFFIRMED.

      . Louisiana Civil Code article 2520 provides: The seller warrants the buyer against redhi-bitory defects, or vices, in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
      A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

      . Louisiana Civil Code article 2475 provides that "[t]he seller is bound to deliver the thing sold and to warrant to the buyer ownership and peaceful possession of, and the absence of hidden defects in, that thing. The seller also warrants that the thing sold is fit for its intended use.” In Louisiana, sellers are bound by an implied warranty that the tiling sold is free of hidden defects and is reasonably fit for the buyer's intended use. Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1126 (La. 1992).

      . Louisiana Civil Code article 2522 provides in part:
      The buyer must give the seller notice of the existence of a redhibitory defect in the thing sold. That notice must be sufficiently timely as to allow the seller the opportunity to make the required repairs. A buyer who fails to give that notice suffers diminution of the warranty to the extent the seller can show that the defect could have been repaired or that the repairs would have been less burdensome, had he received timely notice.

      . Although the installation contract between Mr. Coffman and the Hoffmanns stated that $9,500.00 was paid in full, the total amount paid to Mr. Coffman by Splash Pools and the Hoffmanns, as well as the credit given to Splash Pools by Wilbar, totaled $9,000.00.