author: PER CURIAM.

text:
    IN RE: Candace P. HOWAY
    NO. 2017-B-0452
    Supreme Court of Louisiana.
    05/19/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM.

11 This disciplinary matter arises . from formal, charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Candace P. Howay, an attorney licensed to practice law in Louisiana but currently ineligible to. practice.

FORMAL CHARGES

By way of background, respondent was previously employed by the law firm of Lundy, Lundy, Soileau & South, LLP (“Lundy”). During her employment with Lundy, respondent was responsible for handling real estate matters and the business interests, of Matheson Tri-Gas (“Matheson”), a pipeline company.

On January 14, 2015, respondent voluntarily resigned from her position at Lundy in order to become a named partner at the law firm. of Bradley, Moreau, Howay & Stagg, APLC (“Bradley”). Shortly thereafter, Matheson sent Lundy a letter terminating its attorney-client relationship and indicating its intention to hire Bradley to represent its interests.

In the process of locating all of Mathe-son’s files for transfer to Bradley, Lundy noticed irregularities in the client trust account for Matheson. For example, respondent requested, and received, a $9,000 check from Matheson’s trust account l2funds made payable to Maury Miller. Respondent never submitted to Lundy’s accounting department an invoice, statement, or. receipt to explain the nature or purpose of the payment to Mr. Miller. Following her resignation, respondent did not respond to Lundy’s attempt to contact her for information about this payment. Lundy later traced the payment and determined that Mr. Miller is respondent’s cousin, and the check was deposited into a bank account belonging to Mr. Miller and Cynthia Pousson, who is respondent’s mother.

Lundy also discovered that, in June 2014, respondent requested, and received, a $1,800 check from Lundy’s operating account made payable to “The Bank.” The check request did not indicate the ptirpose of the payment other than to suggest the funds' were an advance regarding the “Matheson 2014 Pipeline Acquisitions” file. Respondent never instructed the accounting department to invoice Matheson for this payment. Lundy obtained a copy of the deposit slip corresponding to the check, which showed the funds were applied to interest for a bank loan extended on behalf of Pouvoir Ventures, LLC (“Pou-voir”), a business owned by respondent’s mother, Cynthia Pousson. Respondent is currently the registered agent for Pouvoir.

After Lundy filed a disciplinary complaint against respondent, Matheson informed the ODC that respondent had complete authority to use Matheson funds at her own discretion. When specifically advised of the $9,000 payment to Mr. Miller, Matheson expressed no concern and reiterated that respondent had authority to utilize the funds in any manner she deemed necessary. Matheson also suggested that the $1,800 payment to The Bank came from funds that were part of Mathe-son’s trust account balance. However, Matheson had no authority to direct respondent to take funds from Lundy’s operating account, which contained only firm-owned funds.

^Respondent’s written response to Lun-dy’s disciplinary complaint only addressed the $9,000 paid to Mr. Miller from Mathe-son’s trust account funds. She did not address the $1,800 paid to The Bank from Lundy’s operating account. During a sworn statement given to the ODC on August 20, 2015, respondent explained her use of Lundy’s operating account funds to pay a debt owed by Pouvoir by suggesting that Pouvoir may have been a potential Matheson vendor at one time. However, respondent confirmed that Pouvoir never supplied services to Lundy or Matheson. During the sworn statement, respondent also indicated she would re-examine her files to determine the reason for the disbursement of the $1,800 from Lundy’s operating account. The ODC never received any further evidence or communication from respondent.

DISCIPLINARY PROCEEDINGS

In December 2015, the ODC filed formal charges against respondent, alleging that her conduct, as set forth above, violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

LHearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined that the factual allegations in the formal charges were deemed admitted and proven by clear and convincing evidence. Specifically, the committee found that respondent procured the $1,800 check from Lundy and used it to pay interest for a loan benefitting her mother’s business, of which respondent is the registered agent. No legitimate Lundy business existed for this transaction. During her sworn statement, respondent acknowledged the obvious suspicions regarding this transaction but could not put forth any explanation. Respondent has never offered proof of the legitimacy of the $1,800 transaction. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee then determined that respondent acted knowingly and intentionally. Nevertheless, her conduct caused no harm to any clients. The committee further determined that, under the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction is disbarment.

In aggravation, the committee found a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, and indifference to making restitution. In mitigation, the committee found the absence of a prior disciplinary record and inexperience in the practice of law (admitted 2009).

After also considering this court’s prior jurisprudence addressing similar misconduct and noting that the amount of funds at issue was relatively small, the committee recommended respondent be suspended from the practice of law for one year. The committee further recommended respondent be ordered to make $1,800 in restitution to Lundy.

The ODC objected to the hearing committee’s recommended sanction, arguing that a suspension for one year and one day is warranted.

\ ¿Disciplinary Board Recommendation

After review, the disciplinary board determined that the factual allegations in the formal charges were deemed admitted and proven. The board also determined that the hearing committee’s additional findings are supported by the factual allegations asserted in the formal charges and/or by the evidence submitted in support of the factual allegations. Based on these findings, the board concluded that the committee correctly applied the Rules of Professional Conduct.

The board then determined that respondent knowingly, if not intentionally, violated duties owed to the public and the legal profession. Regarding the harm caused, the board determined that, although the amount respondent converted was relatively insubstantial, the time and expense Lundy committed to the investigation of respondent’s conduct and to participating in the ODC’s investigation was not insignificant.

The board agreed with the committee that the baseline sanction is disbarment. The board also agreed with the aggravating and mitigating factors found by the committee. Additionally, in aggravation, the board noted the presence of respondent’s bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency.

After further considering this court’s prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended respondent be ordered to make restitution to Lundy..

Neither respondent nor the ODC filed an objection- to the board’s report and recommendation.

• | .DISCUSSION

Bar disciplinary matters'' fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La. 1/10/03), 838 So.2d 715.

The evidence in the record of this deemed admitted matter supports a finding that respondent converted $1,800 in funds belonging to her former law firm, Lundy. As such, she has violated the Rules of Professional Conduct as alleged by the ODC.

Having found evidence of . professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are'designed to maintain high standards of conduct,, protect the public, preserve the integrity- of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in.light of any ^aggravating and mitigating circumstances, Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La. 1984).

Respondent knowingly, if not intentionally, violated duties owed to the legal profession, causing actual harm to Lundy. Because her misconduct essentially amounts to theft of $1,800 from Lundy, the baseline sanction is disbarment.

Aggravating factors include a dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, indifference, to making restitution, and illegal conduct. The only mitigating factor supported by the record is the absence of a prior disciplinary record.

Turning to the issue of an appropriate sanction, the following cases provide guidance: In re: Sharp, 09-0207 (La. 6/26/09), 16 So.3d 343; In re: Bernstein, 07-1049 (La. 10/16/07), 966 So.2d. 537; and In re: Kelly, 98-0368 (La. 6/5/98), 713 So.2d 458. In Sharp, we disbarred an attorney who converted $50,000 in attorney’s fees and expenses due to his law firm upon settlement of a personal injury matter. In Bernstein, we disbarred an attorney who created “off the books” billing statements at two law firms and collected fees from clients .for legal services totaling approximately $30,000, which he then converted to his own use. Finally, in Kelly, we imposed a three-year suspension upon a lawyer who converted approximately $80,000. in funds belonging to his law firm; significant mitigating circumstances were present.

■ Although this case law suggests that a lengthy suspension or disbarment is the appropriate sanction in this matter, it is important to acknowledge that the amount of funds at issue here is relatively small compared to the amount at issue in the above cases. Furthermore, we note that the ODC has concurred in the board’s recommended sanction.

I ¡/Under the unique facts of this case, we will adopt the board’s recommendation and suspend respondent .from the practice of law for one year and one day. We will further order respondent to make full restitution of $1,800, plus legal interest, to Lundy.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Candace P. Ho-way, Louisiana Bar Roll number 32508, be and she hereby is suspended from the practice of law- for one year and. one day. It is further ordered that respondent shall make restitution of $1,800, plus legal interest, to Lundy, Lundy, Soileau & South, LLP. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent has been ineligible to practice law since June 3, 2016 for failing to comply with mandatory continuing legal education requirements,.She is also ineligible to practice law for failing to pay bar dues and the disciplinary assessment and failing to file her trust account disclosure statement.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Mark James SAVOY v. STATE of Louisiana
    No. 2016-KH-1940
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

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

Relator has now exhausted his right, to obtain 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.Gr.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 has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Louis RIOS v. STATE of Louisiana
    No. 2016-KH-1455
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

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

Relator has now exhausted his right to obtain 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 á 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 has filed an application for post-conviction relief - in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record- a minute entry consistent with this per curiam.


text:
    STATE EX REL. Jimmy WELCH v. STATE of Louisiana
    No. 2016-KH-1291
    Supreme Court of Louisiana.
    05/19/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

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


text:
    STATE EX REL. Kirk MOSBY v. STATE of Louisiana
    No. 2016-KH-1151
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

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

Relator has now exhausted his right to obtain 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 has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Dale Robin MILLER v. STATE of Louisiana
    No. 2016-KH-0878
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

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

Relator has now exhausted his right to obtain 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 limitar tions 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 has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now 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.

GENOVESE, J., recused.


text:
    STATE EX REL. Donald BOSWELL v. STATE of Louisiana
    No. 2016-KH-0855
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

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

Relator has now exhausted his right to obtain 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 has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Sidney WILLIAMS, III
    No. 2016-KP-0585
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

[i Denied. Relator fails to show the state withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As to his remaining claims, relator fails to show any factual issues of signifícánce are sharply contested and therefore fails to show the district court abused its discretion when it resolved his claims without an evidentiary hearing. La.C.Cr.P. art. 928; La.C.Cr.P. art. 929(A); State ex rel. Tassin v. Whitley, 602 So.2d 721, 722-23 (La. 1992). 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 accprd with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can |2show 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.

Johnson, Chief Justice, would grant the writ application.


text:
    STATE of Louisiana v. Cleveland Torotien ALLRIDGE
    No. 2016-KP-0557
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

| t 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.'


text:
    STATE EX REL. Charles Derome EVANS v. STATE of Louisiana
    No. 2016-KH-0501

      Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

| denied. Relator fails to show he pled guilty involuntarily. La.C.Cr.P. art. 930.2.

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.


text:
    STATE EX REL. Marlowe Everett PARKER v. STATE of Louisiana
    No. 2016-KH-0500
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

| ¶ Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated at least one 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.

Hughes, J., would grant the writ.


text:
    STATE EX REL. Billy Ray ROBINSON v. STATE of Louisiana
    No. 16-KH-0223
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

L Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated at least three applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a 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.

GENOVESE, J., recused.


text:
    STATE EX REL. Louin WIX v. STATE of Louisiana
    No. 16-KH-0192
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

| denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Wix v. State, 15-1350 (La. 9/6/16), 198 So.3d 125.


text:
    STATE EX REL. Stevon ARCHIE v. STATE of Louisiana
    No. 16-KH-0186
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

11 Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he 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.

Relator has now fully litigated his second 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 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 |2successive application applies, relator has exhausted his right to state collateral review. The district court is or-, dered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Sugar Ray LEWIS v. STATE of Louisiana
    No. 2016-KH-0128
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

hDenied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction, relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he 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. Moreover, his sentencing claim is not cognizable on collateral review. La. C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated several ■applications for post-conviction relief -in state court. Similar to federal habeas relief, see 28 U.S.O. § 2244, Louisiana post-conviction procedure envisions the filing of a 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 |2successive 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.


text:
    STATE of Louisiana v. Devante PAYTON
    No. 2017-KK-0489
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

|,Writ granted. The district court erred in granting the state’s pretrial motion to exclude a self-defense jury charge. The court shall charge the jury as to the law applicablé to the case.- La.C.Cr.P. art. 802. Furthermore, the time to charge the jury is “after the presentation of all evidence and arguments.”' La.C.Cr.P. art. 801(A); see also State v. Tarrance, 252 La. 396, 411-12, 211 So.2d 304, 310 (1968) (rejecting the proposition that counsel ought to be afforded a copy of the charge before closing remarks); State v. Brown, 245 La. 112, 114-15, 157 So.2d 459, 460-61 (1963) (finding the trial judge correctly refused to charge the jury before any evidence was adduced). While a party may request before the first witness is sworn that the court reduce its charge to writing, the court need only deliver that written charge to the defendant and the state prior to reading it to the jury. See La.C.Cr.P. art. 801(A). Considering that the availability vel non of a justification defense is a highly fact-intensive inquiry that will depend on the evidence presented at trial, the district court’s ruling is premature.

GUIDRY, J., would deny the writ application.

CLARK, J., would deny the writ application.

CRICHTON, J., would deny.


author: /s/ Marcus R. Clark

text:
    IN RE: Richard F. PRICE, Jr.
    NO. 2017-OB-0659
    Supreme Court of Louisiana.
    May 18, 2017
   ORDER

_JjThe Office of Disciplinary Counsel (“ODC”) has filed formal charges against respondent alleging that he committed serious attorney misconduct, the most significant of which involves commingling and conversion of client funds. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Richard F. Price, Jr., Louisiana Bar Roll number 10791, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Richard F. Price, Jr. for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Richard F. Price, Jr. shall be permanently prohibited from .practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

FOR THE COURT:

/s/ Marcus R. Clark

JUSTICE, SUPREME COURT OF LOUISIANA


text:
    STATE of Louisiana v. Rolandus CAMPBELL
    NO. 2017-KD-0568
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 530337; to the Court of Appeal, Fourth Circuit, No. 2017-K-0307;

11 Stay denied. Writ denied.


text:
    STATE of Louisiana v. Charles ARBUTHNOT
    NO. 2017-KD-0648
    Supreme Court of Louisiana.
    April 23, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 527-475;

| ] Stay denied. Writ denied.

GUIDRY, J., would grant.

CLARK, J., would grant.

CRICHTON, J., would grant.


text:
    STATE of Louisiana v. Christopher J. WELLS
    NO. 2016-K-0918
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H. No. 480-153; to the Court of Appeal, Fourth Circuit, No. 2011-KA-0744;

| Denied.


text:
    STATE of Louisiana v. Derrick J. BLAND
    NO. 2016-K-0920
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 10-13-0800; to the Court of Appeal, First Circuit, No. 2015 KA 1662;

| denied.


text:
    Laurence F. GILLIO v. The HANOVER AMERICAN INSURANCE COMPANY, Granite State Insurance Co., Champagne Beverage Co., Champagne Beverage Co. Inc., State Farm Mutual Automobile Insurance Co., and Kris A. Sagona
    NO. 2017-C-0393
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 2010-12723; to the Court of Appeal, First Circuit, No. 2016 CA 0640;

11 Denied.


text:
    Kathy Sampere GORMAN v. Thomas Matthew GORMAN
    NO. 2017-C-0397
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. L, No. 2012-12176; to the Court of Appeal, First Circuit, No. 2016 CA 0332

| denied.

HUGHES, J., recused.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC, et al.
    NO. 2017-CC-0428
    Supreme Court of Louisiana.
    April 24, 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 1605

h Denied.


text:
    Gustave J. LABARRE, Jr. v. OCCIDENTAL CHEMICAL COMPANY and Texas Brine Company, LLC
    NO. 2017-CC-0420
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. A, No. 33796; to the Court of Appeal, First Circuit, No. 2016 CW 1667

11Denied.


text:
    James Huey FLETCHER and Janet S. Fletcher v. ANCO INSULATIONS, INC., et al.
    NO. 2017-C-0438
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2016-02416; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0424;

| iDenied.


text:
    STATE of Louisiana v. Diaminike STALBERT & Fredrick Stalbert
    NO. 2017-KK-0440
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, Nos. 526-673, 629-774; to the Court of Appeal, Fourth Circuit, No. 2016-K-1218;

| denied.

JOHNSON, C.J., would grant. ■ WEIMER, J., would grant. GENOVESE, J., would grant.


text:
    Courtland THOMAS v. Nicky MORRIS and their Insurer Safeway Insurance Company of Louisiana
    NO. 2017-C-0442
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District ‘Court Div. C, No. 576,842; to the Court of Appeal, Second Circuit, No. 51,-112-CA;

| denied.


text:
    STATE of Louisiana v. Erick Dewayne SCOTT
    NO. 2016-KO-1662
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 08-12-0029; to the Court of Appeal, First Circuit, No. 2015 KA 1530

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


text:
    Mary Ann Youngblood SHEMWELL v. SUCCESSION OF Frances Oden YOUNGBLOOD, Succession of Ray Oden Youngblood, Succession of James Dee Youngblood, III.
    NO. 2017-CC-0450
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 551,019-B C/W 569,75-A C/W 591,709-A; to the Court of Appeal, Second Circuit, No. 51,455-CW C/W 51,456-CW C/W 51,457-CW;

Denied.


text:
    STATE of Louisiana v. Fahim A. SHAIKH
    NO. 2016-K-0750
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. B, No. CR-2014-313; to the Court of Appeal, Third Circuit, No. 16-687;

11 Granted. See Order Attached.


text:
    STATE EX REL. George Adonis CARTER v. STATE of Louisiana
    NO. 2017-KH-0399
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Pointe Coupee, 18th Judicial District Court Div. A, No. 77,666; to the Court of Appeal, First Circuit, No. 2016 KA 1078

|,Writ not considered. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE EX REL. Kenneth SMITH v. STATE of Louisiana
    NO. 2017-KH-0320
    Supreme Court of Louisiana.
    April 24, 2017
   Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court, Div. D, No. 13-1512; to the Court of Appeal, Fifth Circuit, No. 16-KA-222

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


text:
    STATE of Louisiana v. Rudy FRANCIS
    NO. 2017-KD-0669
    Supreme Court of Louisiana.
    April 27, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 443-175;

It Denied. Moot.


text:
    Mike MOORE & Robin Lynette Moore, et al. v. IASIS GLENWOOD REGIONAL MEDICAL CENTER, INC., et al.
    NO. 2017-C-0465
    Supreme Court of Louisiana.
    May 1, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. J, No. 2012-0319; to the Court of Appeal, Second Circuit, No. 51,177-CA

h Denied.

HUGHES, J., would grant.


text:
    Marton E. BARTLEY v. GARDEN VIEW ASSISTED LIVING
    NO. 2017-C-0531
    Supreme Court of Louisiana.
    May 1, 2017
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 9, No. 14-08304; to the Court of Appeal, Third Circuit, No. WCA 16-611;

It Not considered. Not timely filed. See Supreme Court Rule X, § 5(d).


text:
    STATE of Louisiana v. Samuel Ricardo JOHNSON
    NO. 2016-KO-1074
    Supreme Court of Louisiana.
    May 1, 2017-
   Applying For Writ óf Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. C, No. 09F1224; to the Court of Appeal, Second Circuit, No. 49,-985-KA;

|, Not considered. Not timely filed. See La.S.Ct. Rule X, § 4.


text:
    STATE of Louisiana v. Kaytrell SANDERS
    NO. 2017-KD-0714
    Supreme Court of Louisiana.
    May 2, 2017
   Plaintiff; Applying For Writ of Certiora-ri and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 531-492; to the Court of Appeal, Fourth Circuit, No* 2017-K-0386;

| iStay denied. Writ denied.


text:
    Mitchell ROMERO v. PRECISION HOLDINGS, LLC, et al.
    NO. 2017-CC-0725
    Supreme Court of Louisiana.
    May 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. K, No. 2010-0293; to the Court of Appeal, Third Circuit, No. CW 17-00414;

11 Stay denied: Writ denied.


text:
    DEPARTMENT OF REVENUE, State of Louisiana v. JAZZ CASINO COMPANY, LLC
    NO. 2017-C-0423
    Supreme Court of Louisiana.
    May 3, 2017
   Applying For Writ of Certiorari and/or Review, Board of Tax Appeals, No. 6372; to the Court of Appeal, First Circuit, No. 2016 CA 0180;

| denied.


text:
    STATE of Louisiana v. Rosalyn Faith BREAUX
    NO. 2016-KO-1090
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. 492-14; to the Court of Appeal, Third Circuit, No. 15-1004;

It Denied.


text:
    STATE of Louisiana v. Desmon STEWART
    NO. 2016-K-1166
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. I, No. 13-5637; to the Court of Appeal, Fifth Circuit, No. 15-KA-721;

11 Denied'.


text:
    STATE of Louisiana v. Alfred CARTER
    NO. 2016-KO-1210
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 11—12— 0142; to the Court of Appeal, First Circuit, No. 2015 KA 1806

| denied.


text:
    STATE of Louisiana v. Daniel NIX
    NO. 2016-K-1298
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 521-670; to the Court of Appeal, Fourth Circuit, No. 2015-KA-1368;

11 Denied.


text:
    WATERWORKS DISTRICT NO. 1 OF DESOTO PARISH v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    NO. 2017-C-0470
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 627,252; to the Court of Appeal, First Circuit, No. 2016 CA 0744

|! Denied.


text:
    Daniel Jude SCHNEBELEN v. OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER
    NO. 2017-CC-0471
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. C631715; to the Court of Appeal, First Circuit, No. 2016 CW1435;

| iDenied.


text:
    Joshua PETROZZIELLO and Jennifer Petrozziello v. THERMADYNE HOLDINGS CORPORATION, Thermadyne Industries, Inc., Victor Equipment Company, Noway, Inc., and Employers Fire Insurance Company
    NO. 2017-C-0473
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 13th Judicial District Court Div. A, No. 601,609; to the Court of Appeal, First Circuit, No. 2015 CA 1525

| denied.


text:
    John COOPER, Individually and as Administrator of the Estate of his Minor Child, Anna Cathryn Cooper, and Julie Cooper v. Kamakshya P. PATRA, M.D., Robert Davis Jackson, M.D., Horacio Ruben D’Agostino, M.D., and Louisiana State University Health Sciences Center Shrevefort/LSU Medical Center-Shreveport
    NO. 2017-C-0476
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 569,248; to the Court of Appeal, Second Circuit, No. 51,-182-CA

hDenied.

GENOVESE, J., would grant.


text:
    IN RE: MARSHALL LEGACY FOUNDATION
    NO. 2017-CC-0479
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 2015-3683; to the Court of Appeal, Third Circuit, No. 16-527;

11 Denied.


text:
    John COOPER, Individually and as Administrator of the Estate of his Minor Child, Anna Cathryn Cooper, and Julie Cooper v. Kamakshya P. PATRA, M.D., Robert Davis Jackson, M.D., Horacio Ruben D’Agostino, M.D., and Louisiana State University Health Sciences Center Shreveport/LSU Medical Center-Shreveport
    NO. 2017-C-0481
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 569,248; to the Court of Appeal, Second Circuit, No. 51, 182-CA;

| j Denied.


text:
    Prentiss BAKER and Sheryl Wiginton, Individually and on Behalf of all others Similarly Situated v. PHC-MINDEN, L.P. d/b/a Minden Medical Center
    NO. 2017-CC-0497
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. E, No. 71,566; to the Court of Appeal, Second Circuit, No. 51,441-CW; May 12, 2017

h Denied.


text:
    Michael SWINEA v. HUMANA INC.
    NO. 2017-C-0496
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. C, No. 14-2967; to the Court of Appeal, Second Circuit, No. 51,-179-CA;

L Denied.


text:
    Robert J. “Bobby” CROWE, Sheriff of Washington Parish v. BIO-MEDICAL APPLICATION OF LOUISIANA, LLC Robert J. “Bobby” Crowe, Sheriff of Washington Parish v. AmerisourceBergen Drug Corporation
    NO. 2017-C-0501
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District. Court Div. H, No. 100,392 C/W 100,393; to the Court of Appeal, First Circuit, No. 2014 CA 0919 C/W 2014 CA 0920

I .Denied.


text:
    Robert J. “Bobby” CROWE, Sheriff of Washington Parish v. BIO-MEDICAL APPLICATION OF LOUISIANA, LLC Robert J. “Bobby” Crowe, Sheriff of Washington Parish v. AmerisourceBergen Drug Corporation
    NO. 2017-C-0502
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. H, No. 100,392 C/W 100,393; to the Court of Appeal, First Circuit, No. 2014 CA 0917 C/W 2014 CA 0918;

| iDenied.


text:
    Jeremy SHEPHARD and Emily Shepherd and Michael Jackson and Tamisia Jackson v. AIX ENERGY INC., AIX Operating Company Bear Creek Services, LLC, National Onion Insurance Company, Avery Graves, IV, Republic Well Testing, LLC
    NO. 2017-CC-0657
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B; No. 577,546; to the Court of Appeal, Second Circuit, No. 51,-601-CW

| denied.

HUGHES, J.; would grant.


text:
    STATE of Louisiana v. Calvin Louis NOEL, III aka—Calvin Noel
    NO. 2016-K-0043
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review,. Parish of Lafayette, 15th Judicial District Court Div. K, No. 133164; to the Court of Appeal, Third Circuit, No. 15-617;

I, Granted.


text:
    STATE of Louisiana v. Avert JULIEN
    NO. 2017-KK-0557
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 528-674; to the Court of Appeal, Fourth Circuit, No. 2016-K-1223

| granted.


text:
    STATE of Louisiana v. Kayla BRIGNAC
    NO. 2017-KK-0448
    Supreme Court of Louisiana.
    May 12, 2017
   Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court, Div. D, No. 529-070; to the Court of Appeal, Fourth Circuit, No. 2016-K-1160

I, Granted.


text:
    STATE of Louisiana v. Calvin LEWIS
    NO. 2017-OK-0081
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, Second Parish Court, No. S1290174; to the Court of Appeal, Fifth Circuit, No. 16-KP-614

h Granted.


text:
    STATE OIL FUEL CENTER, INC. v. NITRO GAMING, INC.
    NO. 2017-CC-0521
    Supreme Court of Louisiana.
    May 19, 2017
   IN RE: Nitro Gaming, Inc.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 62-971; to the Court of Appeal, Fourth Circuit, No. 2017-C-0080

h Denied.

HUGHES, J., would grant.


text:
    Bryan REED v. COWBOY’S WESTERN STORE and Trailer Sales, Inc., et al.
    NO. 2017-C-0559
    Supreme Court of Louisiana.
    May 19, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 2013-2661; to the Court of Appeal, Third Circuit, No. 16-462 C/W 16-640 C/W 16-722;

11 Denied.

HUGHES, J., would grant.


text:
    Ann MEXIC v. Ginja A. MEXIC, individually and in her capacity as Trustee of the Harry Rittenberg Trust and the Hilda Rittenberg Trust Ann Mexic v. Ginja A. Mexic, individually and in her capacity as Trustee of the Harry Rittenberg Trust and the Hilda Rittenberg Trust
    NO. 2017-CC-0532
    Supreme Court of Louisiana.
    May 19, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 1999-13297 C/W 2001-19018 C/W 2007-15035; to the Court of Appeal, Fourth Circuit, No. 2017-0058 C/W 2017-C-0059;

Denied.


text:
    Nikolos KOSTOPOULOS v. APOLLO MARINE SPECIALTIES, INC., N & D Industrial Supply, Inc. and Apollo Marine Industrial Supply, Inc.
    NO. 2017-CC-0745
    Supreme Court of Louisiana.
    May 19, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 16-3978; to the Court of Appeal, Fourth Circuit, No. 2017-C-0362

|, Stay denied; writ denied.

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


text:
    STATE of Louisiana v. Noble E. BATES
    NO. 2014-KP-1356
    Supreme Court of Louisiana.
    May 19, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 2, No. 209,744; to the Court of Appeal, Second Circuit, No. 49,403-KW

11 Denied as moot.


text:
    STATE EX REL. Chad JONES v. STATE of Louisiana
    NO. 2016-KH-0189
    Supreme Court of Louisiana.
    May 19, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, No. 2010-182631; to the Court of Appeal, First Circuit, No. 2015 KW 1406;

I (Writ not considered. See La.S.Ct. Rule X, § 4.


text:
    STATE EX REL. Johnny WHITE v. STATE of Louisiana
    NO. 2014-KH-1030
    Supreme Court of Louisiana.
    May 19, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 287205; to the Court of Appeal, First Circuit, No. 2014 KW 0129

11 Denied. Moot.


text:
    STATE of Louisiana v. Horace JYNES
    NO. 2017-KK-0882
    Supreme Court of Louisiana.
    June 5, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 532-750; to the Court of Appeal, Fourth Circuit, No. 2017-K-0418

h Denied.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Clarence J. SALOOM
    NO. 2016-OK-1562
    Supreme Court of Louisiana.
    June 5, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. A, No. 65271; to the Court of Appeal, Third Circuit, No. KW16-00216

Not considered; untimely filed. See Supreme Court Rule X § 5(a).


text:
    IBERVILLE PARISH SCHOOL BOARD v. LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION and the State of Louisiana through the State Department of Education Louisiana Association of Educators, et al. v. State of Louisiana, The Louisiana State Board of Elementary and Secondary Education and the State of Louisiana through the Department of Education
    NO. 2017-C-0633
    Supreme Court of Louisiana.
    June 5, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 633193 C/W 633874; to the Court of Appeal, First Circuit, No. 2015 CA 1416 C/W 2015 CA 1417

h Granted.


text:
    IBERVILLE PARISH SCHOOL BOARD v. LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION and the State of Louisiana through the State Department of Education Louisiana Association of Educators, Caddo Association of Educators, Calcasieu Association of Educators, Inc., Concordia Association of Educators, the East Baton Rouge Association of Educators, Lafayette Parish Association of Educators, Madison Association of Educators, Monroe Association of Educators, St. Landry Association of Educators, St. Mary Association of Educators, Ann Burruss, Rev. Oscar Hamilton, Deborah Hargrave, Melinda Waller Mangham and Thomas Tate v. State of Louisiana, the Louisiana State Board of Elementary and Secondary Education and the State of Louisiana through the Department of Education
    NO. 2017-C-0634
    Supreme Court of Louisiana.
    June 5, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 633193 C/W 633874; to the Court of Appeal, First Circuit, No. 2015 CA 1416 C/W 2015 CA 1417;

| granted.


text:
    STATE of Louisiana v. Soamer Notier RIVERA-SORIANO
    NO. 2016-KO-1523
    Supreme Court of Louisiana.
    June 5, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. L, No. 137720; to the Court of Appeal, Third Circuit, No. 15-1006;

I ¶ Denied.


text:
    STATE of Louisiana v. Larry Joseph MCKITHERN a/k/a Larry McKithern a/k/a Larry J. McKithern
    NO. 2016-KO-1497
    Supreme Court of Louisiana.
    June 5, 2017
   Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court, Div. B, No. 3678-11; to the Court of Appeal, Third Circuit, No. 15-931

h Denied.


text:
    STATE of Louisiana IN the INTEREST OF T.B.
    NO. 2017-CJ-0944
    Supreme Court of Louisiana.
    June 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. C, No. 13406; to the Court of Appeal, First Circuit, No. 2017 CW 0592

11 Denied.

WEIMER, J., recused.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Maurice Vallen JOYNER aka Maurece Vallen Joyner
    NO. 2016-KO-1493
    Supreme Court of Louisiana.
    June 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. B, No. 203,598; to the Court of Appeal, Second Circuit, No. 50,-740-KA;

| í Denied.


text:
    STATE of Louisiana v. Dwayne FOLSE
    NO. 2016-KO-1588
    Supreme Court of Louisiana.
    June 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 08-12-0005; to the Court of Appeal, First Circuit, No. 2015 EA 1862;

hDenied.


text:
    Margaret Fisk MUNRO, et al. v. BRITISH AMERICAN OIL PRODUCING COMPANY, et al.
    NO. 2017-CC-0655
    Supreme Court of Louisiana.
    June 16, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Cameron, 38th Judicial District Court Div. O, No. 10-19049; to the Court of Appeal, Third Circuit,. No. CW16-01057

It Granted. Remanded to the court of appeal for briefing, argument, and full opinion.

HUGHES, J., would deny.


text:
    IN RE: Stacy Lynn MORRIS
    NO. 2017-B-0526
    Supreme Court of Louisiana.
    June 16, 2017
   Applying, for Rehearing of this Court’s action dated May 19, 2017, Office of Disciplinary Board, No. 15-DB-068;

h Rehearing denied.


text:
    STATE of Louisiana v. Jeffery WASHINGTON, Myron Jackson
    NO. 2016-KO-1471
    Supreme Court of Louisiana.
    June 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 514-734; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0809;

| j Denied.


text:
    STATE EX REL. Antywane Eric WILLIAMS v. STATE of Louisiana
    NO. 2016-KH-0527
    Supreme Court of Louisiana.
    June 16, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District court Div. C, No. 192,617; to the Court of Appeal, Second Circuit, No. 50614-KH;

h Denied.


text:
    STATE EX REL. Antywane WILLIAMS v. STATE of Louisiana
    NO. 2016-KH-1646
    Supreme Court of Louisiana.
    June 16, 2017
   Applying For Supervisory and/or Remedial Writs, Parish, of Bossier, 26th Judicial District Court Div. C, No. 192,617; to the Court of Appeal, Second Circuit, No. 51,-129-KH;

|! Denied. Moot.


text:
    STATE EX REL. Antywane Eric WILLIAMS v. STATE of Louisiana
    NO. 2016-KH-0738
    Supreme Court of Louisiana.
    June 16, 2017
   Applying For Supervisory and/or Rem¿dial Writs, Parish of Bossier, 26th Judicial District Court Div. C, No. 192,617; to the Court of Appeal, Second Circuit, No. 50,-848-KH;

11 Denied. Moot.


text:
    STATE of Loiuisiana v. Devin Michael BAHAM
    NO. 2016-KO-1341
    Supreme Court of Louisiana.
    June 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 534157; to the Court of Appeal, First Circuit, No. 2015 KA 1741

h Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Dennis A. DOMING
    NO. 2016-KO-1618
    Supreme Court of Louisiana.
    June 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 10-2138; to the Court of Appeal, Fifth Circuit, No. 15-KA-510

| Denied.


author: SAUNDERS, Judge. CONERY, J.,

text:
    Kim A. GUILLORY v. CHRISTUS HEALTH CENTRAL LOUISIANA, et al.
    16-841
    Court of Appeal of Louisiana, Third Circuit.
    05/10/2017

      Steven W. Harris, Rebecca Boyett, Harris Law Firm, P. 0. Box 13701, Alexandria, LA 71315-3701, (318) 487-1978, COUNSEL FOR PLAINTIFF/APPELLEE: Kim A. Guillory
    Philip G. Hunter, Hunter & Beck, P. 0. Box 11710, Alexandria, LA 71315-1710, (318) 487-1997, COUNSEL FOR PLAINTIFF/APPELLEE: Kim A. Guillory
    Brandon A. Sues, Sarah Spruill Couvil-lon, Gold, Weems, Bruser, Sues & Rundell, P. 0. Box 6118, Alexandria, LA 71307-6118, (318) 445-6471, COUNSEL FOR DEFENDANT/APPELLANT: Christas-Health Central Louisiana
    Judith M. Williams, Attorney at Law, 4501 Jackson Street, C-324, Alexandria, LA 71302, (318) 704-6093, COUNSEL FOR DEFENDANT/APPELLEE: Estate of George Washington Thompson
    Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.
   SAUNDERS, Judge.

LThis appeal arises from a slip and fall case where Plaintiff fell on Defendant’s premises. Plaintiff pursued a suit against Defendant and was granted Partial Summary Judgment regarding Defendant’s liability based on Defendant’s Admissions. Defendant had previously filed a Motion to Withdraw and Amend these admissions but its motion was denied. It is from this denial and the granting of Plaintiffs Motion for Partial Summary Judgment that Defendant appeals.

FACTS AND PROCEDURAL HISTORY:

On January 9, 2006, Kim A. Guillory, hereinafter “Plaintiff,” was injured after he slipped and fell on a ramp on CHRIS-TUS Health Central Louisiana’s premises, hereinafter “Defendant,” at CHRISTUS St. Frances Cabrini Hospital. Plaintiff was walking on the sloped ramp of the sky bridge when he slipped and fell.

On December 20, 2006, Plaintiff filed a Petition for Damages. Thereafter, Plaintiff submitted Requests for Admissions of Fact to Defendant with an incorrect accident date. Subsequently, Plaintiff filed a First Supplemental and Amended Petition for Damage on or about January 21, 2013, amending the original Petition with the correct date of the accident, January 9, 2006.

On June 13, 2012, in their Responses to Plaintiffs First Set of Requests for Admissions, Defendant admitted that Plaintiff fell in water at Cabrini Hospital, that the source of the water was under its control, and that the water was a result of mopping the ramp area. Video footage revealed a custodian employed by Defendant mopping the ramp and removing the warning signs upon completion of the mopping minutes prior to Plaintiffs fall.

During the course of discovery, Defendant answered the First Set of Interrogatories, Requests for Production of Documents and Requests for |2Admission on June 13, 2012, August 13, 2012, and September 28, 2012. Plaintiff made four requests over the course of the discovery phase to Defendant to supplement their discovery requests, specifically on September 12, 2012, and January 21, 2013, to Jeremy Cedars, the prior counsel of record, and again on April 24, 2013, and June 30, 2015, to Brandon Sues, the current counsel of record.

Based on the timeline before the court, nearly three years passed from the time the Defendant answered Plaintiffs First Set of Requests for Admissions to when Defendant attempting to amend its responses to those requests. Moreover, over nine years passed from the time of the accident and Defendant’s attempt to amend its responses.

Next, Plaintiff filed a Motion for Summary Judgment and Motion in Liminie to exclude Defendant’s expert. On April 14, 20Í6, Defendant served Plaintiff with Amended Answers to Discovery with different responses and admissions than those previously submitted on June 13, 2012, August 13, 2012, and September 28, 2012. Defendant attempted to amend its prior responses to Requests for Admissions on April 15, 2016. Defendant also filed an Opposition to Plaintiffs Motion for Partial Summary Judgment. Defendant filed a Motion to Withdraw and Amend on April 28, 2016.

On May 13, 2016, a hearing was held on Defendant’s Motion to Amend its prior Responses to Requests for Admissions. The trial court denied this motion. Next, the trial court held a hearing on Plaintiffs Motion for Partial Summary Judgment, which was subsequently granted.

After Plaintiff filed a Motion for New Trial, Defendant filed writ applications with this court asserting assignments of error for both the trial court’s granting of Plaintiffs Motion for Partial Summary Judgment as well as the denial |aof Defendant’s Motion for Court Approval to Permit Withdrawal to Amend Prior Responses and Requests for Admissions. This court denied both writ applications.

On August 8, 2016, a hearing was held on Plaintiffs Motion for New Trial on the Motion for Partial Summary Judgment, which was denied and an order signed on August 22, 2016. Defendant filed a Motion for Devolutive and/or Suspensive Appeal on September 1, 2016, which was granted on September 6, 2016. Defendant asserts the following four assignments of error.

ASSIGNMENTS OF ERROR:

1. The Trial Court abused its discretion in denying Cabrini Hospital’s Motion for Court Approval to Permit Defendant to Withdraw and Amend Responses to Plaintiffs First Set of Requests for Admissions where the admissions were clearly incorrect when made, are no longer true based on new evidence, and where no evidence of any prejudice to the plaintiff was presented.
2. The Trial Court committed legal error in granting the Plaintiffs Motion for Partial Summary Judgment where clear genuine issues of material fact exist.
3. The Trial Court committed legal error in granting Plaintiffs Motion for Partial Summary Judgment because it did not dispose of all issues of liability, i.e., plaintiffs comparative fault.
4. The Trial Court committed legal error in granting Plaintiffs Motion for Partial Summary Judgment by relying solely on defendant’s prior incorrect Responses to Requests for Admissions and Unverified Interrogatory Answers and failing to consider Defendant’s Verified Supplemental and Amending Interrogatory Answers and expert opinion.

DISCUSSION OF THE MERITS:

Assignment of Error No. One:

|4In its first assignment of error, Defendant asserts that the trial court abused its discretion in denying Defendant’s Motion to Withdraw and Amend Responses to Plaintiffs Requests for Admissions. Defendant contends that its previous admissions were clearly contrary to the record. Additionally, Defendant contends that the previous admissions are no longer true based on the expert report of Defendant’s liability expert and the incorrect accident date in Plaintiffs original petition. Defendant further contends that Plaintiff has shown no evidence of prejudice if it had been allowed to amend its admissions. We find no 'merit in these assertions and no evidence of reversible error.

“The trial court has great discretion in determining whether to allow amendment to pleadings. Thus, a trial court’s ruling on this issue will not be reversed absent an abuse of that discretion.” Koonce v. St. Paul Fire & Marine Ins. Co., 15-31, p. 12 (La.App. 3 Cir. 8/5/15), 172 So.3d 1101, 1109, (9/23/15), writ denied, 15-1950 (La. 11/30/15), 184 So.3d 36. Louisiana Code of Civil Procedure Article 1468 states, in pertinent part:

Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Article 1551 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. ,

A withdrawal of an admission is within the discretion of the trial court. Lopez v. Thibodeaux, 09-719 (La.App. 3 Cir. 2/3/10), 28 So.3d 1215. However, a judicial confession does not estop the confessor from denying the correctness of his earlier admission unless the party claiming the benefit from the confession has relied on the admission to his prejudice. Crawford v. Deshotels, 359 So.2d 118 (La.1978).

| (¡Defendant must have been able to satisfy the two prongs established in La.Code Civ.P. art. 1468, the first being that the merits of the action will be assisted by allowing the withdrawal of the- admissions, and second being that Plaintiff would not be prejudiced in maintaining his action. We find that Defendant has met neither of these prongs.

This court found in Williams v. Housing Authority of the City of Lafayette, 09-753 (La.App. 3 Cir. 2/3/10, 4-5), 28 So.3d 1221, 1224, writ denied, 10-0492 (La. 4/30/10), 34 So.3d 297, that “[gjiven LHA’s failure to investigate before answering the Requests for Admission, .the time that elapsed- between the responses to the admissions and the- trial, and the last minute motion to amend, we find no abuse of discretion of the trial'court’s discretion in its decision to disallow the amendment and/or withdrawal of the admissions.”

At the time the admissions were made, all investigation concerning the fall was under Defendant’s sole- control.. Defendant’s expert inspected the site of the fall nine and one half years after the accident. Considering Defendant’s ample opportunity to investigate the incident and the considerable time span between Plaintiffs Requests for Admissions and Defendant’s Admissions, we find no abuse of the trial court’s discretion on the matter. Further investigation could have been made during the time period between the incident and the answering of the admissions, and no other facts have been presented that justify an amendment to these admissions. Defendant submits that its prior counsel “erroneously” made these admissions; however, upon review of the record, no evidence has been, submitted to support this statement except for its change of counsel on March 6, 2013.

After considering the second prong established in La.Code Civ.P. art. 1468, it is clear that Plaintiff would be prejudiced should Defendant be allowed to | (¡withdraw and amend its admissions. Plaintiff relied on these admissions when filing his Motion for Summary Judgment. Based on the timeline before us, we find that Defendant had ample opportunity to revisit the admissions and failed to do so until several years had passed and trial was only two months away.

Defendant points out that the incorrect date was used in the first set of admissions submitted by Plaintiff; however, this contention does not give rise to reversible error. At the time the Requests for Admissions were propounded, Plaintiff mistakenly alleged in his Petition for Damages that the accident occurred on January 12, 2006, instead of the correct date of January 9, 2006. Defendant subsequently used the incorrect date in its answers. This érror was subsequently corrected by Plaintiff through an amendment of the pleadings.

It is clear that Defendant was referring to the slip and fall that is the subject of the case at hand in its original discovery responses and not to another slip and fall on the incorrect date of January 12, 2006.

Given the discretion afforded to the trial, court and the timeline of events, we find no merit in this first assignment of error.

Assignment of Error No. Two:

In its second assignment of error, Defendant asserts that the trial court erred in granting Plaintiff’s Motion for Partial Summary Judgment. Defendant contends that it submitted evidence to show that it exercised reasonable care and that it was free from fault, this giving rise to genuine issues of material fact regarding liability. Wé find no merit to this assertion.

“On appeal, the trial court’s resolution of a summary judgment motion is reviewed de novo.” Rose v. Liberty Mut. Fire Ins. Co., 15-1184, p. 3 (La.App. 3 Cir. 5/18/16), 192 So.3d 881, 884. Louisiana Code of Civil Procedure Article 966(D)(1) details a motion for summary judgment procedures stating: .

I/The burden of- proof rests with the ' mover. Nevertheless, if the mover will hot bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a gen- . uine issue of material fact or that the mover is not entitled to judgment as a matter of law.

As we explained in Gunter v. Jefferson Davis Parish, 11-1018, pp. 4-5 (La.App. 3 Cir. 2/1/12), 84 So.3d 705, 708:

Louisiana Code of Civil Procedure Article 966(A)(1) provides that a defendant may. move -for summary judgment-“at any time.” Further, La.Code Civ.P. art. 966(C)(1) provides that, “[ajfter adequate discovery or after a case is set for trial, a . motion which shows that there is no genuine issue of material fact and that, the mover is entitled to judgment as a matter of law shall be granted.”
The provision for adequate discovery does not grant a party an absolute right to delay a decision on a motion for summary judgment until all discovery is complete. West v. Watson, 35,278 (La.App. 2 Cir. 10/31/01), 799 So.2d 1189, writ denied, 01-3179 (La. 2/8/02), 809 So.2d 140. Unless the party opposing the motion for summary judgment shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there are no genuine, issues of fact. Advance Products & Systems, Inc. v. Simon, 06-609 (La.App. 3 Cir. 12/6/06), 944 So.2d 788, writ denied, 07-26 (La. 3/9/07), 949 So.2d 444. The abuse of discretion standard is used to determine if the trial court allowed adequate time for discovery. Id.
Prime Income Asset Mgmt., Inc. v. Tauzin, 07-1380, pp. 13-14 (La.App. 3 Cir. 4/30/08), 981 So.2d 897, 906-06.

The court in Reynolds v. St. Francis Medical Center set forth the following standard in a slip and fall case concerning a non-store business when it stated, in pertinent part:

As in any slip and fall lawsuit, to establish a prima facie case against a hospital, the plaintiff must show that she slipped, fell, and was injured because of a foreign substance on the defendant’s premises. LeBlanc v. Alton Ochsner Medical Foundation, 563 So.2d 312 (La. App. 5th Cir.1990); Bordelon v. Southern Louisiana Health 8Care Corp., 467 So.2d 167 (La.App. 3rd Cir.1985), unit denied, 469 So.2d 989 (La.1985). The burden then shifts to the defendant to exculpate itself from the presumption of negligence. LeBlanc v. Alton Ochsner Medical Foundation, [563 So.2d 312].

In the case at hand, Defendant’s admissions demonstrated that no genuine issue of material fact exists. Defendant admitted that Plaintiff fell on its premises due to water present and that the source of the water was located on its premises or under the control of Defendant and its employees. Defendant admitted that the water on the floor was the result of an in-house custodian mopping the ramp area on which Plaintiff slipped and fell. Further, there was video evidence of the ramp being mopped prior to Plaintiffs fall. Despite Defendant contending that the report from its slip and fall expert showed that Plaintiff “tripped” rather than “slipped,” we find no- basis for which to overturn the trial court’s ruling on this issue.

Defendant specifically stated the following in its Answers to Interrogatories:

INTERROGATORY NO. 27:
Please state whether defendant has determined the following:
a. That plaintiff did, in fact, slip and fall in water or some other liquid on the subject walkway/hallway on the date of the accident which is the subject accident;
b. The type of liquid that caused plaintiff to slip and fall;
c. The source of the liquid on the floor of the hallway/walkway that caused plaintiff to slip and fall;
d. Whether there was any leak in the roof, or leak or condensation runoff from any nearby air conditioning unit or other appurtenance, or whether the water was the result of condensation accumulating on the floor; and
e. Whether defendant was aware prior to the plaintiffs accident of any leak in the roof, or leak or condensation run-off from any nearby air conditioning unit or other appurtenance, or whether the water was the result of condensation accumulating on the floor.
Additionally, pursuant to Request for Production Numbers 19 and 20, attach a copy of any documents or records that substantiate your determinations.
ANSWER TO INTERROGATORY NO. 27:
ha. Plaintiff did slip an [sic] fall on water in the hallway.
b. Water. The hallway had recently been mopped.
c. Please see section (b).
d. None.
e. None.

Based on these admissions, we find the trial court did not err in its decision that there is no material issue of fact and that Plaintiff is entitled to summary judgment. As such, this second assigned error lacks merit.

Assignment of Error No. Three:

In its third assignment of error, Defendant asserts that the trial court committed legal error in granting Plaintiffs Motion for Partial Summary Judgment because it did not dispose of all issues of liability, and specifically, that the issue of Plaintiffs comparative fault remains.

The appellate court reviews summary judgments de novo under the same criteria which govern the trial court’s determination of whether summary judgment is appropriate. Shoemaker v. Shreveport Emergency Med. Servs., 31,692 (La.App. 2 Cir. 2/24/99), 728 So.2d 1031.

Louisiana Code of Civil Procedure Article 966(D)(1) provides the following, in pertinent part, “[t]he burden of proof rests with the mover .... The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.”

A defendant seeking to defeat a Motion for Summary Judgment based upon liability using the affirmative defense of contributory negligence must come forward with facts supporting this defense. We find that Defendant has not carried |1(lits burden of proof on this matter nor has provided evidence supporting the defense, thus failing to prove the affirmative defense of contributory negligence. Accordingly, we find no merit in Defendant’s third assigned error.

Assignment of Error No. Four:

In its fourth assignment of error, Defendant contends that the trial court committed legal error in granting Plaintiff’s Motion for Partial Summary Judgment by relying solely on Defendant’s original Responses to Requests for Admissions and for failing to consider Defendant’s verified Supplemental and Amending Interrogatory Answers and expert opinion. Defendant asserts that its, original admissions do not establish that Defendant acted unreasonably or that the floor was unreasonably dangerous.

We are compelled to agree that Defendant’s negligence created an unreasonable slippery condition and that Defendant violated its duty to protect visitors from an unreasonable risk of harm.

Pursuant to La.Code Civ.P. art. 966(A)(4), answers to interrogatories and admissions can support the imposition of a favorable judgment on a Motion for Summary Judgment. We cannot say the trial court erred by relying on Defendant’s original Responses.

Accordingly, we find no merit to Defendant’s fourth assigned error.

DISPOSITION:

Defendant, CHRISTUS Health Central Louisiana, raised four assignments of error. For the foregoing reasons, we find no merit in these assertions. Therefore, we affirm the trial court’s judgment granting Plaintiffs Motion for Partial Summary Judgment. We also affirm the trial court’s denial of Defendant’s Motion to Withdraw and Amend its Prior Responses. All costs associated with this appeal are assessed to Defendant.

In AFFIRMED.

Conery, J., dissents and assigns reasons.

CONERY, J.,

dissents and assigns reasons.

Iff respectfully dissent. I would find that in this summary judgment case, there is a genuine issue of fact as to whether the defendant’s original answers ,to interrogatories and requests for admissions should preclude defendant from contesting the particulars of .this alleged slip and fall at trial. If the Answers to Interrogatories and Requests for Admissions are properly-introduced into evidence at trial by plaintiff, defendant should be allowed to introduce evidence in their case in chief as to the particulars of how and why those “admissions” were made, including alleged mistake by prior counsel. The jury should decide the facts based on all the evidence.

I would further’ find that clear issues of material fact exist and summary judgment is improper. Defendants should be allowed to introduce evidence to the jury that it exercised reasonable care and was free from fault, including by testimony and the video showing many patrons walking through this exact area without incident prior to plaintiffs fall. Moreover, defendant’s expert finds no evidence of any defect on the non-skid surface involved in this case.

This case involves questions of credibility and how the fact finder should weigh the evidence. Those are questions for the jury. This ease is not appropriate |2for summary judgment disposition.


author: GREMILLION, Shannon, Judge.

text:
    Vernon L. RAYNER v. The EVANGELINE BANK AND TRUST COMPANY
    2017-75
    Court of Appeal of Louisiana, Third Circuit.
    05/10/2017

      George Carnal Gaiennie, III, Attorney at Law, 1920 Jackson St. Aexandria, LA 71301, (318) 767-1114, COUNSEL’FOR PLAINTIFF/RESPONDENT: Vernon L. Rayner
    Thomas D. Davenport, Jr., The Davenport Firm, 602 Murray Street, Aexandria, LA 71301, (318) 445-9696, COUNSEL FOR DEFENDANT/APPLICANT: The Evangeline Bank & Trust Company
    Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   GREMILLION, Shannon, Judge.

ItThe defendant-relator, Evangeline Bank & Trust Company (the Bank), seeks supervisory writs- from the judgment of the Ninth Judicial District Court, which denied exceptions of no cause of action, prematurity, lack of standing, ripeness, lack of justiciable controversy, lack of subject matter jurisdiction, and lis pendens. For the following reasons, we find no error in the trial court’s ruling and deny the writ.

STATEMENT OF THE CASE

The instant case arises from a donation of immovable-property from Vernon Ray-ner (Rayner), plaintiff-respondent, to his daughter, Christine Rayner O’Quinn (O’Quinn). Rayner reserved the usufruct for his lifetime. In 2009 and 2014, O’Quinn obtained four mortgages from the Bank, encumbering the property at issue herein. O’Quinn defaulted on the mortgages in the fall of 2015, and the Bank subsequently filed a petition for executory process against O’Quinn. Rayner intervened therein, and O’Quinn filed for bankruptcy, resulting in a stay of the.executory proceeding before the immovable property was sold to satisfy the debt.

Rayner instituted a second proceeding in district court, seeking damages against the Bank for the wrongful seizure of his property and usufruct. Aong with its answer" to Rayner’s petition, the Bank filed exceptions of prematurity, no cause of action, lack of. standing, ripeness, lack of justiciable controversy, lack of subject matter jurisdiction, lis pendens, and vagueness or ambiguity. A1 exceptions were denied, save for the exception of vagueness or ambiguity, which was granted.

Though the Bank actually complains of seven denied exceptions, as ' a practical matter, it offers only two arguments as to why Rayner’s suit against it may not proceed: 1) Nothing has yet occurred for which our civil law provides a | ¡¡.remedy, inasmuch as proceedings were halted before the subject property was seized; and 2) Two other matters were instituted before this suit, which prohibit, or at least forestall, Rayner from moving forward.

ARGUMENT ONE: PROPERTY HAS NOT BEEN SEIZED

(Exceptions of No Cause of Action, Lack of Standing, Ripeness, and Lack of a Justiciable Controversy)

The Bank’s briefing- to this court states in pertinent part that it “takes issue” with Rayner’s ciatos because the property has “not been seized/or sold,” Rayner “has not been dispossessed of his usufruct” over the property, and the Bank has “not been placed in possession” of the property. Thus, argues the Bank, Rayner has no cause of action, his claim is not ripe,, he lacks standing, and a justiciable controversy does not exist. We disagree.

The Bank argues that there is no cause of action for wrongful seizure, because, while it initiated foreclosure proceedings, it had not yet seized the property. In support of its argument, the Bank cites Dixie Sav. and Loan Ass’n v. Pitre, 99-154 (La.App. 5 Cir. 7/27/99), 751 So.2d 911, 921, writ denied, 99-2867 (La. 12/10/99), 751 So.2d 855, wherein the court noted that “[djamages for wrongful seizure are allowed after an illegal seizure.”

In an exception of no cause of action, there can be no consideration of evidence; rather, at the hearing on the exception, the allegations of the petition are presumed to be true. La.Civ.Code art. 931. Rayner’s petition asserts that the bank wrongfully “obtained an order for executory process which ordered issuance of a writ of seizure and sale directing the sheriff to seize and sell” the property. Consequently, Rayner argues the Bank and the sheriff “wrongfully seized his property.” Rayner then goes on to allege that numerous renters have received |3notices from the sheriff indicating that a judge ordered that they be evicted. He further claims that he lost rental income as a result of the Bank’s actions.

While we do not address the merits of this claim, we presume them to be true for the purpose of weighing the merits of the exception of no cause of action before us. Accordingly, we find that Rayner has clearly stated a cause of action. The Bank’s reliance on Dixie Sav. and Loan Ass’n v. Pitre is misplaced. The trial court properly denied the Bank’s exception of no cause of action.

At the hearing on the exceptions, counsel for the Bank advised the trial court that many of the exceptions overlapped. Thus, for the same reasons we find the matter ripe, we find that Rayner has standing, and the existence of a justiciable controversy.

ARGUMENT TWO: PREVIOUSLY-FILED LITIGATION PROHIBITS OR FORESTALLS THIS LAWSUIT

(Exceptions of Prematurity, Subject Matter Jurisdiction, and Lis Pendens)

In dealing with these exceptions the trial court looked at three separate actions: 1) O’Quinn’s proceedings instituted in federal bankruptcy court; 2) The Bank’s suit seeking the institution of executory process against O’Quinn, in which Rayner has intervened and which has been stayed by virtue of the bankruptcy; and 3) This state court matter filed by Rayner against the Bank.

With regard to subject matter jurisdiction and prematurity, there is no indication in the record to support the Bank’s claim that Rayner intervened in the bankruptcy proceeding. Further, Rayner claims that the bankruptcy proceeding has been dismissed. There is no evidence of that here, either. Even if such evidence were to be found within this writ record, it would likely only constrain or limit the Bank’s claims against O’Quinn, since she is the one who filed for bankruptcy. LNevertheless, we can state only that the record before us provides nothing establishing any trial court error as to its denial of the Bank’s exceptions of lack of subject matter jurisdiction and prematurity.

That leaves us to consider the Bank’s exception of lis pendens. We note first that Rayner did file a motion to intervene in the executory process suit. The trial court issued an order that the intervention be allowed and that Rayner’s petition for intervention be filed. However, that same order set a hearing on Rayner’s claims, but a hearing was never held because the matter was stayed based on the pendency of the bankruptcy. Thus, were we to maintain the Bank’s exception of lis pendens, we would be effectively staying Rayner from pursuing his claims against the Bank, based on a stay arising out of the bankruptcy proceedings instituted by O’Quinn. We find this result mitigates against applying this preclusion doctrine, and exemplifies why our law states that lis pendens is stricti juris and “any doubt concerning the application of lis pendens must be resolved against its application.” Robbins v. Delta Wire Rope, Inc., 15-1757, p. 7 (La.App. 1 Cir. 6/3/16), 196 So.3d 700, 705.

That having been stated, we note that both suits involve the same parties in the same capacities (though O’Quinn is not a party to this matter), both suits involve the same transaction or occurrence, and both suits are pending (though the pendency of one of them has been affected by a stay order). Indeed, counsel for the Bank is correct in asserting that portions of Ray-ner’s petitions in both suits are “nearly identical.”

Rayner’s intervention, though, seeks only to have his usufruct -of the property “released” from the threat of seizure and sale. It seeks no damages. In fact, it expressly reserves Rayner’s rights to seek damages in another setting. In Rother words, the intervention was an immediate and limited response necessitated by the exigencies of the Bank’s move for executo-ry process. The present petition is not limited to a swiftly-filed counter-move designed merely to prevent the immediate loss of Rayner’s rights to the property. Rather, it is a full-blown lawsuit. It is neither summary nor executory. It seeks precisely articulated damages that are not set out at all in the intervention. We, therefore, agree with the trial court’s assessment that these two matters are “different beasts.”

“[T]he standard of review in the lis pendens context is whether the trial court abused its sound discretion.” George v. Dugas, 15-939, p. 5 (La.App. 3 Cir. 3/16/16), 188 So.3d 376, 380, writ denied as improvidently granted, 16-710 (La. 11/07/16), 203 So.3d 1043. Given the above discussion, and the notion that the lis pendens article states only that the trial court “may stay all proceedings in the second suit,” we can find no abuse of discretion in the trial court’s denial of the Bank’s exception of lis pendens. La.Code Civ.P. art. 532 (emphasis added).

CONCLUSION

We find no error in the trial court’s ruling denying defendant-relator, Evangeline Bank & Trust Company’s, exceptions of no cause of action, prematurity, lack of standing, ripeness, lack of justiciable controversy, lack of subject matter jurisdiction, and lis pendens. Defendant-relator’s writ to this court is denied.

WRIT DENIED.


author: Judge Joy Cossich Lobrano LOMBARD, J.,

text:
    STATE of Louisiana v. Rubin ROBERTSON
    NO. 2017-K-0398
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 12, 2017

      Leon A.. Cannizzaro, Jr., DISTRICT ATTORNEY, Mithun Kamath, ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH, 619 S. White St., New Orleans, LA 70119, COUNSEL. FOR RELATOR/STATE OF LOUISIANA
    Jdhn T. Fuller, JOHN T. FULLER & ASSOCIATES, 909 Poydras St., Suite 2270, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/RESPONDENT
    (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano)
   Judge Joy Cossich Lobrano

h Relator, the State ■ of Louisiana (“State”) seeks expedited review of the district court’s April 12, 2017 judgment granting defendant, .Rubin Robertson’s (“Defendant”) motion to suppress statements. and evidence. Finding ■ that the district court abused its discretion by granting Defendant’s motion to suppress statements and evidence, we grant expedited consideration, grant the writ, and reverse the judgment.

Defendant is an Orleans Parish Sheriffs Office (“OPSO”) deputy. A fellow deputy, Deputy Lance Wade (“Deputy Wade”) received information that Defendant may be bringing contraband into the Orleans Parish Prison (“OPP”). After monitoring inmate telephone calls, which laid out a contraband delivery scheme, on May 6, 2015, Deputy Wade began surveillaiice on Defendant.

On that same day, Deputy Wade and another deputy observed Defendant arrive at OPP and park his vehicle. At that time, Deputy Wade and the other Deputy escorted Defendant into their office for the purpose of discussing them suspicions. Defendant soon admitted to bringing contraband into OPP.

|2Upon his admission, deputies immediately stopped the discussion and read Defendant his Miranda rights. He voluntarily signed a “waiver of rights” form and a “consent to search” form for his vehicle. Boxes were cheeked on the “waiver of rights” form indicating that Defendant understood his Miranda rights and wished to cooperate.

Defendant then‘told the deputies that on at least five occasions between April 1, 2015 and May 6, 2015, he was compensated in the amount of $500 for bringing tobacco and marijuana into OPP. - Defendant was contacted by-an individual who would tell him where and when to meet. At the meeting, the individual would give Defendant the contraband and money. Defendant would then re-package the contraband for introduction into the jail. Finally, another individual in the prison would contact Defendant to arrange for the delivery.

Defendant also said that contraband and the material that he used to re-package the contraband could be found in his vehicle that was parked outside, and a search of Defendant’s vehicle produced those items’. The evidence recovered from inside a bag in the vehicle included: green vegetable matter consistent with marijuana, four oblong pills, sandwich bags, saran wrap, a device for suctioning the contraband, rolling paper, and packs of cigarettes. .

A district court’s ruling on a motion to suppress a statement is entitled to great weight and will not be disturbed unless clearly unsupported by the evidence. State v. Vigne, 2001-2940, p. 6 (La. 6/21/02), 820 So.2d 533, 537. A defendant’s “statement' during a custodial interrogation is inadmissible at trial unless the Isprosecution can establish that the accused ‘in fact knowingly and voluntarily waived Miranda rights’ when making the statement.” Berghuis v. Thompkins, 560 U.S. 370, 382, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010) (internal quotations omitted). However, in the case s%ú> judice, we find Defendant wás not in custody when he was initially questioned.

The obligation to provide Miranda warnings attaches only when a person is questioned by law enforcement after he has been, taken “into custody or otherwise deprived of his freedom of action in any'significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Custody is decided by two distinct inquiries: an objective assessment of the circumstances surrounding the interrogation to determine whether there is a formal arrest or restraint on freedom of the degree -associated with formal arrest; and an .evaluation of how a reasonable person iii the position of the interviewee would “gauge the breadth of his freedom of action.” Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 1528-30, 128 L.Ed.2d 293 (1994) (citations omitted). These inquiries look at the totality of the circumstances surrounding the investigation, “including any circumstance that ‘would have affected how a reasonable person’ in the suspect’s position ‘would perceive his or her freedom to leave,’” but ignoring the “subjective views harbored by either the interrogating officers or the person being questioned.” J.D.B. v. North Carolina, 564 U.S. 261, 270-71, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011) (citations omitted).

I ¿Although Defendant was escorted to the interview, he was not placed in handcuffs and was free to leave at any time. He agreed to the interview voluntarily and the record does not indicate that any law enforcement coercion was employed.

Because Defendant was not in custody at the time of his initial interrogation, we find that the Defendant’s statements are admissible. Further, as Defendant was not interrogated in violation of Miranda, the evidence discovered in his vehicle is' not the “fruit” of an illegally obtained confession. See State v. Stewart, 2013-0779, pp. 10-11 (La.App. 4 Cir. 1/22/14), 133 So.3d 166, 172. Accordingly, we reverse the district court’s grant of Defendant’s motion to suppress statements and evidence.

EXPEDITED CONSIDERATION GRANTED; WRIT GRANTED; REVERSED

LOMBARD, J.,

DISSENTS,

_JjThe judgment of the trial court should be affirmed. In her oral ruling, the trial judge concisely, astutely, and objectively analyzed the facts adduced at the hearing in this matter under the applicable law, Missouri v. Seibert, 542 U.S. 600,124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). It is inconceivable how such action can be construed as an abuse of discretion and, accordingly, I dissent.