author: PICKETT, Judge.

text:
    STATE of Louisiana v. Mark Anthony BROUSSARD
    16-974
    Court of Appeal of Louisiana, Third Circuit.
    06/13/2017

      Julie Christine Tizzard, Attorney at Law, 700 Camp Street # 101, New Orleans, LA 70130, (504) 529-3774, COUNSEL FOR DEFENDANT-APPELLANT: Mark Anthony Broussard
    John Foster DeRosier, District Attorney, Fourteenth Judicial District Court, Elizabeth Brooks Hollins, Karen C. McLellan, Jacob L. Johnson, Cynthia Kill-ingsworth, Carla S. Sigler, Assistant District Attorneys, P. O. Box 3206,, Lake Charles, LA 70602-3206, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   PICKETT, Judge.

FACTS

| between July 1, 1986, and September 6, 1988, the defendant, Mark Anthony Broussard, who was a priest in Lake Charles, Louisiana, had anal sexual intercourse with one of the altar boys in the church. The victim, J.A., was between eleven and twelve years old when the offenses occurred.

Between September 6, 1988, and July 1, 1991, the defendant fondled the genitals of L.N., who was an altar boy. The defendant performed oral sexual acts on the victim and caused the victim to perform oral sexual acts. The defendant also had anal intercourse with L.N. The victim was between ten and thirteen years old when the offenses were committed.

The defendant was indicted on August 9, 2012, with two counts of aggravated rape, violations of La.R.S. 14:42, molestation of a juvenile, a violation of La.R.S. 14:81.2, aggravated oral sexual battery, a violation of La.R.S. 14:43.4, and oral sexual battery, a violation of La.R.S. 14:43,3.

On January 8, 2013, the defendant filed a “Motion to Suppress Statement.” A hearing on the motion was held on April 24, 2013. The trial court took the motion under advisement. On May 1, 2013, the trial court denied the defendant’s motion to suppress in open court with reasons.

|2On March 7, 2013, the state filed a “Notice of Intent to Introduce Evidence of Similar Crimes, Wrongs, or Acts.” On September 16, 2015, the state filed a “Supplement Notice of Intent to Introduce Evidence of Similar Crimes, Wrongs, or Acts.” On September 13,2013, the defendant filed a “Motion in Limine” in response to the state’s filing of the notice of intent to introduce similar crimes, wrongs, or acts at trial, seeking to include that evidence. In response to the the defendant’s motion in limine, the state filed “State’s Response to the Defendant’s Motion for Pretrial Disclosure of Evidence of Independent and Separate Offenses, Wrongs, or Acts and Pretrial Hearing,” and “State’s Response to the Defendant’s Motion in Limine.” On June 25, 2016, the trial court denied the defendant’s motion in limine in open court.

On September 13, 2013, the defendant also filed a “Motion to Redact Videotaped Statement and to Prohibit Introduction of or Reference to Crime not Subject to Indictment.” The state filed “State’s Response to Defense Redactions to Statement of the Accused.” On January 25, 2016, the morning trial commenced, the defendant, the state, and the trial court addressed the defendant’s motion to redact. During the proceeding, the defendant objected to several of the trial court’s refusals to redact certain portions of the defendant’s videotaped statement to the police.

Trial commenced on January 25, 2016, and on February 5, 2016, the defendant was found guilty as charged. The defendant was sentenced on March 11, 2016, to two life sentences at hard labor, without the possibility of parole, probation, or suspension of sentence on the convictions for aggravated rape; fifteen years at hard labor on the conviction for molestation of a juvenile; fifteen years at hard labor on the conviction for oral sexual battery; and twenty-five years on the | sconviction of aggravated oral sexual battery. All the sentences were ordered to be served consecutively, with credit for time served.

The defendant filed a “Motion to Reconsider Sentence” on April 8, 2016. The motion to reconsider the sentence was denied without a hearing.

ASSIGNMENTS OF ERROR

The defendant has perfected a timely appeal, wherein he alleges four assignments of error:

1. The court erred when it denied a challenge for cause of a prospective juror.
2. The court erred when it denied the motion to suppress based on Defendant’s invocation of right to counsel.
3. The court erred when it denied Defendant’s motion in limine to exclude other crimes evidence under La.Code Evid. art. 404(B) in purview of La.Code Evid. art. 412.2, more particularly, evidence of the previously quashed counts.
4. The court erred when it denied, in part, Defendant’s motion to redact the transcription of the videotaped statement and to prohibit the introduction of or reference to crimes not subject to indictment.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant asserts that the trial court erred when it denied his challenge for cause of a potential juror who had revealed that she was raped as a child by two uncles. The defendant argues that although the prospective juror indicated that she could remain impartial, her responses during voir dire showed bias, prejudice, or inability to render a judgment according to the law.

In State v. Lewis, 12-1021, pp. 9-11 (La. 3/19/13), 112 So.3d 796, 801-02 (footnote omitted), the supreme court stated:

The peremptory challenge occupies an important role in the jury selection process. By enabling each side to exclude those jurors it perceives as harboring subtle biases with regard to the case which were not elicited on voir dire or which do - not establish legal cause for a challenge, peremptory challenges are a means of “ ‘eliminat[ing] extremes of partiality on both sides,’,.. thereby ‘assuring the selection of a qualified and unbiased jury.’ ” Holland v. Illinois, 493 U.S. 474, 484, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990), quoting Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and Batson v. Kentucky, 476 U.S. 79, 91, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). While peremptory challenges are one means of assuring the selection of a qualified and unbiased jury, the U.S. Supreme Court has determined that an erroneous ruling denying a peremptory challenge is not, as a matter of federal constitutional law, a structural error requiring automatic reversal of a defendant’s conviction. Rivera v. Illinois, 556 U.S. 148, 160-61, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009). Rather, state law determines the consequences when a peremptory challenge is erroneously denied. Id. at 161-62, 129 S.Ct. 1446. As the Court explained in Rivera, “[i]f a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern ... [but] a matter for the State to address under its own laws.” Id.
In Louisiana, the peremptory challenge is protected by and preserved in the constitution. La. Const, art. I, § 17 (“The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law”). While the exercise of a peremptory challenge is provided through legislation, La.C.Cr.P. arts. 795, 799, and 799.1, it is not merely a statutory right. Thus, this court has long recognized that when a defendant is forced to utilize a peremptory challenge to correct a district court’s error in denying a challenge for cause and thereafter exercises all available peremptory challenges on other prospective jurors, a substantial right of the defendant, guaranteed by the Louisiana constitution, is affected. State v. Monroe, 366 So.2d 1345, 1347 (La.1978). In such instances, prejudice is presumed. Id.; State v. Juniors, 2003-2425, p. 8 (La. 6/29/05), 915 So.2d 291, 305.

Louisiana jurisprudence holds that trial courts have wide discretion in determining whether to reject a juror for cause, and those determinations cannot be disturbed absent an abuse of discretion. State v. Jones, 474 So.2d 919 (La.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986). A review of the record indicates that the defendant used all twelve of his peremptory challenges prior to the full complement of the jury. La. Code Crim.P. art. 799.1. Accordingly, if the challenge for cause was wrongfully denied in the current case, prejudice is presumed. See State v. Blank, 04-204 (La. 4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).

In a third circuit case, State v. Hamilton, 12-204, pp. 4-5 (La.App. 3 Cir. 11/20/13), 127 So.3d 76, 79-80, writ denied, 13-2925 (La. 5/30/14), 140 So.3d 1173, this court discussed issues of a trial court’s denial of challenges for cause, as follows:

A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the entire voir dire reveals the trial judge abused its discretion....
“A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.” However, a trial court does not abuse its discretion when it refuses to excuse a prospective juror on the ground he is not impartial where, after further inquiry or instruction, the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and evidence. Thus, to establish reversible error warranting reversal of a conviction and sentence, defendant must demonstrate “(1) erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges.” In the instant case, it is undisputed that defense counsel exhausted his peremptory challenges, and, therefore, need only show that the trial court abused its discretion by denying a challenge for cause.
State v. Odenbaugh, 10-268 (La. 12/6/11), 82 So.3d 215, 236-37, cert. denied, 568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012) (citations omitted).
| (-According to La.Code Crim.P. art. 797, the State or Defendant may challenge a prospective juror for cause on the ground that:
(2) The- juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court.
In Odenbaugh, 82 So.3d at 238 (citations omitted), the supreme court further stated:
[W]hile cognizant of the broad discretion afforded a district court when ruling on cause challenges, this Court has cautioned that a prospective juror’s responses cannot be considered in isolation and that a challenge should be granted, “even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably [inferred].”

Following the state’s voir dire of the prospective juror, the defense revealed that on the prospective juror’s jury questionnaire, A.D. stated that she had been raped by two of her uncles when she was a child. In brief, the defendant argues that her responses given during voir dire indicated that she was angry “over her perceived lack of justice that occurred when two uncles that purportedly raped her over a number of years were not prosecuted.”

| ./The state, defense counsel, and the trial court questioned the juror away from the jury pool. The juror explained that both she and her sister were raped by two of their uncles. She stated that the sexual abuse stopped when she and her sister complained to their mother. Even though a complaint was filed and the two sisters’ statements were taken, one uncle, as soon as he was told of the accusations, fled the state. She explained that her sister then refused to concur with the accusation against the second uncle, and the matter was dropped. The prospective juror told the trial court she received extensive counseling that lasted for several years. She insisted that she had moved on; she was married, had two children, and worked full time. While she said she was mad back then, “but now it’s—it’s been so long ago.”

Defense counsel questioned Ms. [A.D.], as follows:

MR. T. LORENZI: Ms. [A.D.], if you were in my position knowing that I represent Mr. Broussard and knowing what he’s charged with, you’ve been here now for three and a half days—
MS. A.D.: Uh-huh.
MR. T. LORENZI: —would you be concerned to have you on this jury?
MS. [A.D.]: I feel like with the way that I feel I don’t think so.
MR. T. LORENZI: Okay. And why? If you were me what would I tell Mr. Broussard about why I should select you or how do I convince him that you would be a fair, open-minded juror knowing your background?
MS. [A.D.]: Because I understand that my situation is different. I was there.
MR. T. LORENZI: Well, you haven’t heard any evidence in this case now.
MS. [A.D.]: No, I haven’t, but—
IsMR. T. LORENZI: Okay. Now, if you were chosen in this case and you heard evidence that had some familiarity to some aspect of your personal experience would that change your opinion?
MS. [A.D.]: No.
MR. T. LORENZI: Okay. Have you ever attempted to pursue a financial recovery against either of those two men?
MS. [A.D.]: No.
MR. T. LORENZI: Why not?
MS. [A.D.]: I don’t know that it’s necessary.
MR. T. LORENZI: At any point during your time in the courtroom since this process began did you ever consider asking to meet with the Court to discuss your situation, your .past, because you had doubts or you had questions as to whether you could be a fair juror?
MS. [A.D.]: No.
MR. T. LORENZI: If as a result of the discussions that we’ve had here today you are approached and it’s discussed that you could pursue either or both of these uncles for prosecution, would you intend to do so?
MS. [A.D.]: Yes.
MR. T. LORENZI: If you sit on this jury and there’s discussions- regarding the law and what laws are applicable are you going to be thinking about how this applies to your personal situation?
MS. [A.D.]: No.
MR. T. LORENZI: Why not?
MS. [A.D.]: Because this case has—it’s not about me, has nothing to do with me.

| ¡When the time came to select or reject A.D. as a juror, defense counsel stated:

Then we would challenge for cause number 74, [A.D.]. Ms. [A.D.], we admit, said everything that—despite her having been raped by two uncles -that nothing would affect her. She presented herself as Superman or Superwoman and it is simply bordering on impossible to believe that a two-time victim in circumstances too .close factually to the allegations that would be introduced in this case, understanding that she has not heard the evidence in' this' case, would not so closely identify with both victims of the charged cases and the charges and the other-crimes evidence in this ease and it would not be prejudicial to Mr. Broussard and so even though she’s saying at this time that she would-be fair to Mr. Broussard it is impossible to believe that that would be. able to be maintained through the course of the trial and on that basis we challenge her for cause.
The trial court denied the defendant’s challenge, stating:
Well, let me just say this. I mean I listened carefully to her testimony—I mean to when we talked to her privately. In response to your questioning she said she was willing to have that discussion in front of everybody here, you know. She obviously has handled that situation with the help of counseling well and I mean she seems to be a strong person. She didn’t cry, you know, during, the questioning. T mean she, you know, understands that that’s a different situation than this situation and frankly I would have to believe that she lied to us and I don’t believe she did. I mean I believe she’s obviously—you know, everybody handles that type of stuff differently and some people let it ruin their lives and some people rise ábout it and I think she’s been able to—it doesn’t affect her in some way, but I have to take her at her word because I don’t think she was trying to mislead us. I felt like she was telling us she felt like she could do- it and so anyway I’m going to deny that challenge for cause because I think everything she said—I accept what she said as being truthful and that she can separate them.

Wé agree with the trial court. There was nothing in the prospective juror’s responses to defense counsel's questioning to indicate that she harbored anger against her violators that would have affected her ability to judge the evidence in the current case impartially. In addition, the trial court had the opportunity to observe her demeanor when she answered counsel’s questions, which is not insignificant.

|inWe cannot say that the trial. court abused its discretion when it denied the defendant’s challenge for cause to exclude A.D. from the jury in this case. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In his motion to suppress, the defendant argued that the police illegally continued their interrogation after he had invoked his right to counsel. He asserts the trial court should have granted his motion to suppress the videotaped statements he made during the interrogation because of the violation of his constitutional right to have counsel present upon request.

In brief, the defendant contends that during the interrogation he stated “unequivocally, ‘I really would like, I mean I think I want a lawyer. Because, I mean this is not right.’ ”

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the Fifth Amendment gives a suspect subject to custodial interrogation the right to consult with an attorney* during questioning. State v. Payne, 01-3196 (La. 12/4/02), 833 So.2d 927, 934; Miranda v. Arizona, 384 U.S. at 469-473, 86 S.Ct. at 1625-1627. The police are required to explain this right to the suspect before the custodial interrogation, “initiated by law enforcement officers after á person has been taken into custody or otherwise deprived of his freedom of action in any significant way,” begins. State v. Payne, supra at 934, citing Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980), quoting Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1619. The safeguards regarding the Miranda right to counsel are triggered by both a' custodial setting and official interrogation. State v. Payne, supra at 934.
After a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning a suspect unless or until he clearly requests an attorney. Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362 (1994). Whether the accused actually invoked his right to counsel is an objective inquiry. State v. Payne, 833 So.2d at 935, citing Davis v. United States, 512 U.S. at 458-459, 114 S.Ct. at 2355. In order to invoke his right to counsel, the Suspect must articulate his desire to have counsel present with sufficient clarity to enable a reasonable Inpolice officer, in the circumstances, to understand his statement to be a request for an attorney. Id. See also, State v. Leger, 05-0011 (La. 7/10/06), 936 So.2d 108, 135. The invocation of the right to counsel during the custodial interrogation “requires, at minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.”, State v. Payne, 833 So.2d at 935, quoting Davis v. United States, 512 U.S. at 459, 114 S.Ct. at 2355.
Once ¿ suspect has asked to have an attorney present, he is not subject to any further interrogation by the authorities until counsel has been made available to him, unless the' súspect initiates further comiriunication, exchanges or conversations with the police. State v. Payne, 833 So.2d at 935, citing Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). A cessation- of questioning is not required, if the suspect makes a reference to an attorney that is ambiguous or equivocal, which causes a reasonable police officer, in light of the circumstances, to understand only that the suspect might be invoking the right to counsel. State v. Payne, supra at 935, citing Davis v. United States, 512 U.S. at 458, 114 S.Ct. at 2355. (emphasis in original).
In analyzing whether there has been a direct, clear, unequivocal, and unambiguous request for counsel, courts must give a broad, rather than narrow, interpretation to the suspect’s request. State v. Payne, 833 So.2d at 936, citing Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). The admissibility of a confession or statement is a determination for the trial court and the trial court’s ruling will not be overturned unless the preponderance of the evidence clearly favors suppression. State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1123.

State v. Allen, 06-778, pp. 4-6 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 747-48, writ denied, 08-2432 (La. 1/30/09), 999 So.2d 754 (footnote omitted).

At the suppression hearing, Detective Elizabeth Zaunbrecher, a supervisor in the sex crimes division of the Calca-sieu Parish Sheriffs Office, testified that she assisted Detective Catherine LeBlanc, also with the sex crimes division, with the interview of the defendant. Detective Zaunbrecher stated that the defendant voluntarily went to the police department for the interview. At the time, he was not under arrest. The defendant was given his Miranda warnings. The defendant then I iagave a statement. Towards the end of the statement, he asked for an attorney, and the interview was concluded pursuant to his request.

Detective Zaunbrecher stated that approximately ten minutes into the recorded interview, the defendant was given a written statement made by the victim, L.N. After he read the statement, “[h]e stated that he may—maybe, I think, need an attorney. He then just continued to talk.”

When asked why she did not believe the defendant had invoked his right to counsel right then, Detective Zaunbrecher answered:

A The defendant continued to talk. I tried saying something. He interrupted me, he continued to talk. I didn’t get the impression from him—he did not say I want an attorney.
Q Okay, now—
A Those were not the words he used. When he did use those words, you say, it is absolutely his right to invoke it and to want an attorney, and the interview was stopped.
Q There is a Fifth Amendment right to silence. There is a Sixth Amendment right to a lawyer. When he said, “I mean I want a lawyer because I mean this not right,” did you not feel that it was incumbent upon you at that time to say, Mr. Broussard, I need to clarify something. Do you want a lawyer or not?
A I’m—
Q Before I can go any further I need to make sure. Are you telling me you want a lawyer or that you’re thinking about wanting a lawyer?
A He did not stop talking.
Q What he was saying is this isn’t right. What he continued to do was to answer your questions, correct?
A No sir. After he said I may need— maybe—I think I need an attorney, he continued to talk. I wasn’t asking him anything.

| iaDetective LeBlanc’s testimony corroborated Detective Zaunbrecher’s testimony regarding whether it appeared to the detectives that the defendant had made an unequivocal request for counsel.

Following brief arguments by the defendant and the state, the trial court stated it wanted to review the videotaped interrogation again and would rule thereafter. On May 1, 2013, the trial court denied the defendant’s motion to suppress in open court, as follows:

Now, going to the video or to the statement or the reference to an attorney by Mr. Broussard, and I thought about it, as I said a while ago, I thought about queuing that up and just kind of letting everybody hear it again, but I mean I think y’all have copies of that and if you want to go through that I don’t mind doing it, but when I was watching that video again it was after Detective Zaunbrecher gave the statement, the victim’s statement, I guess that’s what that was as I recall, or the report, something containing what the victim said, whether it was the direct statement of the victim or whether it was a report where somebody was—had written down what the—it was either first or third hand information, first or second hand information, that was in that report that Mr. Broussard was reading. I don’t recall what that was for sure, other than whatever the allegations were against him as I understand it were in what he was reading. Detectives [sicj Zaunbrecher had exited the room and came back and when Mr. Broussard finished reading the statement with Detective Zaunbrecher back in the room and he said, “I really—I really would like—I think I want a lawyer on—” and then he says, “This is not right,” and then, because this is in a conversational way, you know, in the way he was talking, then he said, and I actually missed this the first or second time that 1 listened to it and then as I listened to it a few times, this next statement, right after that he said, “Well, I don’t—” It was like he had a—he was having different thoughts there and then after he says, you know, “This is not right,” and then he says, “Well, I don’t—” and then he continued on to say—he interrupted himself and said, “I think I—I think I mentioned to you over the phone that I don’t want court cases to hurt families,” and then he—so he makes those comments without Detective Zaunbrecher saying anything to him. He says, “I really—I really would like—I think I want a lawyer on,” and then I think he paused and he says, “This is not right,” and then he says, “Well, I don’t—” and then he didn’t finish that statement. He says, “Well, I don’t—” and then he says, “I think I mentioned to you over the phone that I don’t want court cases to hurt families,” and then—and I think he may have said something else, and then Detective Zaunbrecher said, “Well,” you know, and then she followed along |14with the conversation after he made that comment to her. So that in and of itself, I cannot say that that is an unequivocal invocation of right to counsel to say, “I really would like—I think I want a lawyer on—this is not right,” and then he says, “Well, I don’t—” and then he went on to make another comment directed to Detective Zaunbrecher saying, “I think I mentioned to you over the phone that I don’t want court cases to hurt families.”
And so he initiated the—I mean he continued on with the conversation. I mean it was almost as if he was, you know, just thinking out loud when he made his first comments. Yeah, I think I want a lawyer, and then this is not right, as opposed to saying I want a lawyer, especially when he says—like I said, it was pretty subtle, but then he says, “Well, I don’t—” at a minimum that made it—if it wasn’t equivocal before he said that then certainly it was after he said that or he started to say whatever he said. He said, “Well, I don’t—” and then I don’t know what he was going to say when he interrupted himself or shifted gears after he said, “Well, I don’t—” and then he went on to say, “I think I mentioned to you on the phone that I didn’t want court cases to hurt families.” So he continued on with the conversation, as Detective Zaunbrecher testified, and I believe as Detective Le-Blanc testified that Mr. Broussard continued on talking, and then at the end when Mr. Broussard indicated that he had a right to—said he wanted an attorney and Detective Zaunbrecher stopped the questioning, he said—I think they had just had a bathroom break for a couple of minutes and then they came back on the record and Mr. Broussard said, “I said earlier that I felt like maybe I need a lawyer,” and he said, I said earlier that I felt like maybe I need a lawyer. Okay. This is pretty damn serious,” and then Detective Zaunbrecher went on to say yes, this is serious and she went ahead and said, “Okay. Well, we’re going to stop the interview,” and acknowledged his concern.
Anyway. So even at the end he was saying earlier that he felt like maybe—I mean he’s telling Detective Zaunbrecher that I said earlier that I felt like maybe I need a lawyer, and I think he’s acknowledging at the end that it was—his earlier mentioning of an attorney was not unequivocal, but that it was equivocal and he was making it unequivocal at the end of ■ the interview. So I think looking at that as a whole—well, I think looking at it either in isolation and as a whole I think it’s unequivocal—I think it’s equivocal and I think that under the cases cited by the State, and I’ll just mention the Davis case, Davis versus United States, That’s a United States Supreme Court case, as well as the other cases mentioned, there needs to be more and even in that case, the Davis case, it says, “About an hour and a half into the interview he said,” the defendant in that case said, “Maybe I should talk to a lawyer.” Of course—and then the Supreme Court discusses in the various cases that were cited' that there |,meeds to be an unequivocal request and I don’t find that this was an unequivocal indication of his, Mr. Brous-sard’s, right to counsel.
So for the reason that I probably very unartfully gave, I am going to deny the Motion to Suppress.

The case referred to above by the trial court was Davis, 512 U.S. 452, 462, 114 S.Ct. 2350, 129 L.Ed.2d 362, wherein the defendant, during interrogation, stated that “[m]aybe I should talk to. a lawyer.” The United States Supreme Court did not find that the statement was an unequivocal and unambiguous statement such that would require the .interrogating officers to terminate the interview. Similarly, in Allen, 956 So.2d 742, after the defendant was advised he had the right to counsel during interrogation, he told the officers that he might want to speak with an attorney but wanted- to think about it. He was given a cigarette and- a drink and left alone to ponder. When asked if he was ready to give a statement, the defendant stated he was. Again he was Mivandized before he confessed to the offense. The officer then asked him to make a recorded statement. Once again, the defendant said he needed to think about it and asked for food. He was given lunch, another cigarette break, and then he confessed on tape. After he was charged, the defendant filed a motion to -suppress his statements claiming that he had twice asked for counsel but was ignored. The fifth- circuit found that the trial court did not err when it denied'the defendant’s motion to suppress the state-merits. Citing a case from this court, the fifth circuit stated:

Additionally, in State v. Chesson, 03-606 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 173-175, writ denied, 03-2913 (La. 2/13/04), 867 So.2d 686, the Third Circuit upheld the trial court’s denial of the defendant’s motion to suppress his statement despite his statement to police officers while being transported that “he might—he felt like he should talk to an attorney.” The Third Circuit concluded that “[t]he defendant’s statement regarding his ‘thinking1 that he possibly /should’ speak with- an attorney is not the type of unequivocal and unambiguous statement described above, [in Davis ].”
Similar to State v. Chesson, supra, the defendant in the present case twice stated he was “thinking” he “might” want an attorney. According to Detective Becnel, who the trial court found credible, the defendant never unequivocally stated he wanted an attorney. Under Davis, the defendant’s statements that he thought he might want to speak to an attorney were ambiguous and cessation of questioning was not required.

Id, at 749-50 (footnote omitted).

Finally, in State v. Leger, 05-11, pp. 31-32 (La. 7/10/06), 936 So.2d 108, 135, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007), the supreme court did not find that the statement, “I know I need to see one [a lawyer]” amounted “to an unambiguous request for counsel that would indicate to a reasonable police officer that the defendant was asking for counsel at that time.”

Considering, as noted above in Allen, 955 So.2d at 748 (citing Payne, 833 So.2d at 936, and Jackson, 475 U.S. 625, 106 S.Ct. 1404 (1986)) that the “courts must give a broad, rather than narrow, interpretation to the suspect’s request[,]” we cannot'say that the trial court erred in the current case when it found that the defendant’s statement that he thought he wanted a lawyer was an unequivocal indication such that required the detectives to terminate the interview. The trial court did not err when it denied the defendant’s motion to suppress his videotaped statements.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER THREE

The defendant asserts that the trial court erred when it permitted the state to introduce other .crimes evidence at trial. The defendant argues that the “issue is whether the State has ‘established an independent and relevant reason’ to admit as required [] such evidence under La,C.E, Article 404(B) or that these alleged ‘other [^crimes’ are admissible pursuant to the La.C.E. Article 403 ‘balancing’ test that is required by La.C.E. Article 412.2.”

However, except for extensively quoting the jurisprudence and Louisiana’s eviden-tiary statutes regarding “other crimes” evidence, the defendant does not state what specific other crimes evidence he objects to, and where in the record this other crimes evidence was introduced at trial. There is no discussion as to why such evidence was more prejudicial to the defendant than probative. The Uniform Rules—Courts of Appeal, Rule 2-12.4(B), in pertinent part, provides:

(3) The court may disregard the argument on an assignment of error or issue for review if suitable reference to the specific page numbers of the record is not made.
(4) All assignments of error and issues for review must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed.

A general discussion of the law without specifically defining what testimony the trial court allegedly erred by admitting is not sufficient for review purposes.

ASSIGNMENT OF ERROR NUMBER FOUR

The defendant filed a “Motion to Redact Videotaped Statement and to Prohibit Introduction of, or Reference to Crimes not Subject to Indictment.” The motion was addressed on January 25, 2016, prior to picking the jury. The defendant argues that the trial court erred when it refused to grant a majority of his requested redac-tions regarding other crimes evidence from a transcript of the interview he gave to detectives on March 22, 2012.

The videotaped interview was then redacted as ordered by the trial court and presented to the jury.

In brief, the defendant argues:

| tsThis issue is whether under the balancing test in State v. Rose, 949 So.2d 1236 (La. 2/22/07) in purview of LSA-C.E. art. 403, it is unduly prejudicial. More particularly, whether the introduction of the prior misconduct “speaks to the capacity of some relevant evidence to lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged.” See State v. Wright, 2011-0141 (La. 12/6/11), 79 So.3d 309, 318.

Louisiana Code of Evidence Article 404(B) provides in pertinent part that “as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” However, La.Code Evid. art. 412.2, Evidence of similar crimes, wrongs, or acts in sex offenses cases, provides:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

The balancing test provided by La.Code Evid. art. 403 is: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”

In State v. Henry, 11-1137, pp. 8-9 (La. App. 4 Cir. 10/24/12), 102 So.3d 1016, 1021-22, writ denied, 12-2520 (La. 4/26/13), 112 So.3d 838 (footnote omitted), the fourth circuit discussed State v. Rose, 06-402 (La. 2/22/07), 949 So.2d 1236, regarding prejudicial as opposed to the probative value of the balancing test of La.Code Evid. art. 403, as follows:

Addressing the meaning of the “unfair prejudice” component of the balancing test, the Louisiana Supreme Court in State v. Rose, 06-0402, p. 13 (La. 2/22/07), 949 So.2d 1236, 1244, noted that “[a]ny inculpatory evidence is ‘prejudicial’ to a defendant, especially when it |19is ‘probative’ to a high degree.” Id. (citing State v. Germain, 433 So.2d 110, 118 (La.1983)). The Supreme Court further noted that “[a]s used in the balancing test, ‘prejudicial’ limits the introduction of probative evidence of prior misconduct only when it is un.duly and unfairly prejudicial.” Id. In this context, unfair prejudice thus means “the offered evidence has ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ ” George Pugh, Robert Force, Gerard Rault, & Kerry Triche, HANDBOOK ON LOUISIANA EVIDENCE LAW, Author’s Note (3), La. C.E. art. 403, p. 380 (2011) (citing the Advisory Committee’s Note to Federal Rule 403). A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect. State v. White, 09-0025, p. 9 (La.App. 4 Cir. 9/16/09), 22 So.3d 197, 204.

In the current case, the defendant requested thirty-nine redactions. Several of the requested redactions concerned references the defendant made during the interrogation to the two victims listed in the indictment who testified at trial, L.N. and J.A. The trial court denied the defendant’s request to redact these references. The trial court did not err when it denied these requested redactions since the two victims’ testimonies were not other crimes evidence.

The remaining requested redactions can be grouped into four categories. One category is comments made by the defendant regarding his own anguished mental and emotional reactions to his behavior but not mentioning other victims. The trial court denied the defendant’s request to redact these comments made by the defendant. The second category was references made by the defendant to a' victim, M.C., who testified at trial but was not listed in the indictment. The trial court denied the defendant’s requests to redact references to M.C. The trial court redacted opinion comments made by the detectives during the interrogation. Finally, the trial court granted the defendant’s request to redact all references to any other victims disclosed during the interrogation.

We note that in the defendant’s motion to redact, the only objection was to crimes that were not subject to the indictment. Furthermore, at the hearing on the | ^motion to redact, while defense counsel objected when the trial court denied his requests to redact, defense counsel never stated a ground for the objection. Nor in brief to this court does the defendant argue why each requested redaction was more prejudicial to his case than probative. In Henry, 102 So.3d at 1022, the defendant sought to suppress introduction of a thirty-year-old sexual assault, noting that the evidence was “ ‘so stale as to have greatly diminished any probative value it may have originally provided.’ ” The fourth circuit noted:

[Defendant] emphasizes that he was only sixteen years old—a child himself— at the time of the prior crime. He thus submits that the prior crime was a criminal sexual act committed by one child against another, and did not, thirty years thereafter, serve to indicate his lustful disposition toward children. The State counters that Mr. Henry erred in focusing his argument solely on the “lustful disposition toward children” aspect of La. C.E. art. 412.2. The State points out that La. C.E. art. 412.2 also provides that “evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior ... may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.” The State argues that Mr. .Henry failed to establish prejudice based on either the remoteness in time or his youth at the time of the prior offense.

Id.

In State v. E.J.F., 08-674 (La.App. 3 Cir. 12/10/08), 999 So.2d 224, the defendant was charged with aggravated incest. He sought to suppress a prior federal conviction for possession of child pornography. This court found that there was no merit to the defendant’s allegation that the trial court erred when it denied his motion to suppress, stating:

The defendant insisted that the application of La.Code Evid. art. .412.2 is discretionary and that using it to - admit the depictions of child pornography in this case violated his due process rights, particularly because child pornography is not an integral part of aggravated incest. Alternatively, the State contended that La.Code Evid. art. 412.2 expands the admissibility of evidence under La. Code Evid. art. 404(B) when the offense is sexual in nature and is perpetuated against a victim under the age of seventeen. The trial court agreed with the | ai State, finding the evidence admissible, insomuch as it proved a lustful disposition toward children.
In a recent case involving the forcible rape trial of a fourteen-year-old girl, the State offered evidence of another crime, sexual battery, also committed on a fourteen-year-old girl, who testified that she had been sexually assaulted by the defendant. State v. Mayeux, 06-944 (La. App. 3 Cir. 1/10/07), 949 So.2d 520. An eyewitness to the offense also testified at trial regarding the sexual assault. The defendant argued that admission of the testimony was prohibited by La.Code Evid. art. 404(B)(1), that the crimes’ sexual natures were dissimilar and that the introduction of the evidence of the sexual battery would be unduly prejudicial. The trial court ruled that the evidence was admissible pursuant to La.Code Evid. Art 412.2, because the testimony of the sexual battery showed a lustful disposition toward young teenage girls and that the probative value of the evidence outweighed the prejudicial effect of the defendant’s case. The trial court’s ruling was affirmed on appeal. This court stated, “[wjhile one incident involved rape and one incident involved oral sexual contact, in both cases, Defen- • dant sought out fourteen-year-old girls, who were guests in his home, late at night after they fell asleep.” Id. at 529.
Based on the language of La.Code Evid. art. 412.2 and the jurisprudence applying the article, we find that the trial court did not commit error when it allowed evidence of the defendant’s federal conviction for possession of child pornography to be admitted. Because the defendant was charged with sexual misconduct against a victim who was under the age of seventeen, the defendant’s conviction relating to the possession of pornographic images of children is relevant for the purposes of revealing his lustful disposition toward young girls.
We note, too, that the defendant has not produced evidence of how the probative valúe of the defendant’s federal conviction is outweighed by any prejudicial effect of the evidence.

Id. at 230-231.

In both of the above cases, the defendants articulated why the evidence the prosecution sought to present at the trials was unduly prejudicial. In one case, the evidence was thirty years old and .therefore not applicable to the offense charged, and in the other case, the evidence was not substantially similar to the offense.

In the matter before us now, it is not sufficient to simply assert that the evidence was unduly prejudicial without showing in what manner the evidence lured the jury into declaring guilt on a ground different from proof specific to the offenses charged. Furthermore, in E.J.F. the evidence the defendant sought to- suppress was not listed in the indictment, yet this court permitted the evidence to be submitted to the jury. The defendant in this case has not shown how the probative value of the allowed evidence was outweighed by the prejudicial effect of the evidence. Accordingly, there is no merit to this assignment of error.

CONCLUSION

The defendant’s 'convictions are' affirmed.

AFFIRMED.

      . Pursuant to La.R.S. 46:1844(W), the initials of the victims are used to protect their identities.

      . Pursuant to 2015 La. Acts No. 184, § 1 and 2015 La. Acts No. 256, § 1, effective August 1, 2015, aggravated rape is now designated as first degree rape. Moreover, La.R.S, 14:43.4, aggravated oral sexual battery, was repealed by 2001 La. Acts No. 301, § 2, The offense was subsumed under the aggravated rape statute, effective August 15, 2001. •

      . Because this venireman is a victim of a sexual assault, we will identify her only by initials.


source: Caselaw Access Project

license: Public Domain

text:
    J. A. DAVIS PROPERTIES, LLC v. MARTIN OPERATING PARTNERSHIP, LP
    17-449
    Court of Appeal of Louisiana, Third Circuit.
    6/21/2017

      Glenn L. Langley, Julianna P. Parks, Parker W. Maxwell, Langley, Parks, Horton & Maxwell, LLC, 401 Market Street, Ste 1100, Shreveport, LA 71161-0059, (318) 383-6422, COUNSEL FOR DEFENDANT-APPLICANT: Martin Operating Partnership, LP
    W. Thomas Barrett, III, The Barrett Law Firm, Inc., 3401 Ryan St., Suite 307, Lake Charles, LA 70605, (337) 474-7311, COUNSEL FOR DEFENDANT-APPLICANT: Martin Operating Partnership, LP
    William B. Monk, H. Alan McCall, Stephen D. Polito, Kathleen T. Deanda, Stock-well, Sievert, Viccellio, Clements & Shad-dock, L.L.P., P. O. Box 2900, Lake Charles, LA 70602, (337) 436-9491, COUNSEL FOR PLAINTIFF-RESPONDENT J. A, Davis Properties, LLC
    Jennifer Jones, Jones Law Firm, P. O. Drawer 1550, Cameron, LA 70631, (337) 775-5714, COUNSEL FOR PLAINTIFF-RESPONDENT J. A. Davis Properties, LLC
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   PICKETT, Judge.

| Defendant-Relator, Martin Operating Partnership, LP, (Martin) seeks a supervisory writ from the interlocutory judgment of the Thirty-Eighth Judicial District Court, Parish of Cameron, the Honorable Penelope Q. Richard, presiding, which denied Martin’s peremptory exception of no cause of action.

STATEMENT OF THE CASE

This matter arises out of an alleged breach of a lease agreement. Martin leases three tracts of land (the North Yard, the Central Yard, and the South Yard) adjacent to the ship channel in Cameron Parish from the plaintiff, J. A. Davis Properties, LLC (Davis). On July 16, 2014, Davis sent a letter to Martin alleging that Martin had failed to maintain the property as required by the lease, including failure to maintain bulkheads adjacent to the ship channel. After a series of correspondence, Davis filed suit on July 14, 2015, for breach of the lease.

Through the course of discovery, Davis learned of documents, which Martin failed to disclose, allegedly demonstrating Martin’s efforts, over the course of several years, to avoid or postpone incurring millions of dollars in expenses for repair to the docks, along with the scheme to avoid or delay disclosure of such efforts. On February 10, 2017, Davis then filed its First Amended and Supplemental Petition for Damages Under Lease Agreement, alleging Martin knowingly engaged in and is attempting to engage in unfair and deceptive methods, acts, and practices against Davis in violation of the Louisiana Unfair Trade Practices Act (LUTPA), La.R.S. 51:1401, et seq., namely:

|¾⅜ Martin has knowingly engaged in and is attempting to continue to engage in unfair and deceptive methods, acts, and practices against its lessor Davis by misleading Davis in numerous untruthful, deceitful, deceptive, and dishonest communications, trying to avoid or postpone time sensitive dock and bulkhead repairs estimated to cost approximately $10 million or more. Upon information and belief, defendant has also withheld significant information from the Louisiana Office of Coastal Management, and largely understated the scope of the repairs needed at the subject docks, when pursuing a permit application that it later withdrew.
• The element of business competition in Louisiana trade or commerce is satisfied by the type of lease called into question by this lawsuit. There are currently pending more than $72 billion in LNG related projects and other industrial projects either under construction or planned for construction along this vital asset of the State, the Calcasieu Ship Channel. The defendant in this lawsuit leases or has leased many other properties for marine facilities in this area and elsewhere in Louisiana. This is a commercial lease relationship in which Martin has been untruthful, deceitful, deceptive, and dishonest while trying to avoid or postpone time sensitive dock and bulkhead repairs estimated to cost approximately $10 million or much more. Because Martin has been closing other marine facilities, Davis is concerned that these kinds of deceptive and unfair practices are occurring to the detriment of other Louisiana property owners....

In response, Martin filed a peremptory exception of no cause of action, among other motions and exceptions, arguing the allegations of Davis’s petition fail to state a cause of action under LUTPA, because the Act does not apply to lease disputes or simple breach of contract cases. After a hearing, the trial court denied the exception, explaining in its written reasons:

MARTIN cites to Webb v. Theriot, [97-624 (La.App. Cir. 3 10/29/97),] 704 So.2d 1211 ..to assert that the “LUT-PA did not apply to a lease because a lease is not ‘trade’ or’ ‘commerce’ under the Act,”--.,. In the Webb case, the court stated, “we do not find that the lease and sublease of the hunting property and camp fall within the definition of ‘trade’ or ‘commerce’.” The instant case does not | ¡¡involve a hunting lease. This case - involves a-commercial lease covering valuable dock space along .the Calcasieu Ship Channel.
MARTIN also cites to Shaw Industries, Inc. v. Brett, 884 F.Supp. 1054, 1058 (M.D. La. 1994) to argue that the LUTPA does not provide alternative remedies for breach of contract claims. However, in the Shaw case, the court looked at the relationship of the parties (principal and agent/broker) and the nature of their disagreement and found, it to be more analogous, to a breach of contract dispute than a suit involving unfair and deceptive acts,, and granted summary judgment. In the instant case,, the plaintiff has alleged specific facts regarding defendant’s unfair'and deceptive acts. A practice is unfair when it offends established public policy and when the practice is unethical, oppressive, unscrupulous or substantially injurious. A trade practice is deceptive under LUTPA when it amounts to fraud, deceit, or' misrepresentation. Indest-Guidry, Ltd. v. Key Office Equipment, Inc., [08-599 (La.App. 3 Cir. 11/5/08),] 997 So.2d 796 ..., citing Mixon v. Iberia Surgical, L.L.C., [06-878 (La.App. 3 Cir. 4/18/07),] 956 So.2d 76 ..., writ denied, [07-1050 (La. 8/31/07),] 962 So.2d 438 .... Davis has alleged sufficient facts, that if true, constitute unfair and deceptive, acts by MARTIN. Further, the issue, is brought before this court as an exception of no cause of action and not as a motion for summary judgment and thus the burden of proof is different.
After reviewing'the petition in this matter, the court finds that the petition-sets forth sufficient facts, if true, that survive an- exception of no cause of action under the LUTPA,

Martin now seeks review, of the trial court’s ruling denying its exception of no cause of action.

SUPERVISORY RELIEF

“The proper procedural vehicle to contest an interlocutory judgment that does not cause'irreparable harm is'-an application for- supervisory writs. See La. C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933.

ON THE MERITS

A peremptory. -exception .of no cause of action questions whether the law extends a remedy to anyone under -the factual allegations of . the- petition. Its | ¿function is to “test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts” that are alleged in the petition. Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234, 1235 (La.1993). “No evidence may-be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La.Code Civ.P. art. 931. “Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the Davis the opportunity of presenting evidence at trial.” Indus. Cos., Inc. v. Durbin, 02-665, p. 7 (La. 1/28/03), 837 So.2d 1207, 1213. “All reasonable inferences are made in favor of the nonmoving party in determining whether the law affords any remedy to the plaintiff,” City of New Orleans v. Bd. of Dirs. of La. State Museum, 98-1170, p. 9 (La. 3/2/99), 739 So.2d 748, 755.

LUTPA prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce,” LaJR.S. 51:1405, and grants a right of action to any business competitor, consumer, or person “who suffers an ascertainable loss” as a result, of another person’s use of such practices. Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 09-1633, p. 6 (La. 4/23/10), 35 So.3d 1053, 1057 (plurality). Given the sweepingly broad statutory language, it has been left up to the courts to decide, on a case-by-case basis, what conduct constitutes a LUTPA violation. Quality Envtl. Processes, Inc. v. I.P. Petroleum Co., Inc., 13-1582, 13-1588, 13-703 (La. 5/7/14), 144 So.3d 1011. The supreme court has, however, consistently held that,' to establish a LUTPA claim, a plaintiff must show that “the alleged conduct offends established public policy and is immoral, unethical, oppressive, unscrupulous, or substantially injurious.” Id. at 1025 (quoting Cheramie Servs., Inc., 35 So.3d at 1059). “[T]he range of | ^prohibited practices under LUTPA is extremely harrow,” though, as it prohibits only fraud, misrepresentation, and similar conduct, and not mere negligence. Cheramie, 35 So.3d at 1060. Moreover, “only egregious actions involving elements of fraud, misrepresentation, deception, or other unethical conduct .will be sanctioned based on LUTPA.” Id.

Martin first asserts the trial court committed legal error in concluding the facts herein involve “trade” or “commerce.” Relying once again on Webb’s interpretation of “trade” or “commerce” as ■ defined in La.R.S. 51:1402(10), Martin claims this court has held that the lease of immovable property does, not fall within the definition of “trade” or “commerce” and, therefore, LUTPA does not apply to a lease of immovable property. Martin next alleges legal error in the trial court’s failing to find that this is simply a breach of contract case outside the purview of LUTPA. In support, Martin again cites to Shaw for the- proposition that even if Davis alleges deceitful conduct, the relationship of the parties (lessor/lessee) and the nature of their disagreement (breach of lease) are nothing more than a, breach >of contract dispute. And, Martin argues, it has long been established that LUTPA do,es not provide alternative remedies for breach of contract claims. Citing Shaw, 884 F.Supp. 1064.

Further, Martin asserts the trial court legally erred in finding Davis alleged sufficiently egregious conduct, since Davis’s first amended petition does not allege that any of Martin’s purported acts violated public policy or otherwise gave rise to | ¡¡the level of egregiousness prohibited by LUTPA. Martin claims that (1) Davis is not .the “consumer” for which LUTPA was enacted to provide protection against misrepresentation or fraud; (2) the lease does not require that Martin disclose any information regarding assessments acquired pursuant to its lease obligations; (3) Davis has not alleged any facts showing that Martin took action with specific intent to harm- Davis or that Davis is even considered a competitor; and (4) Davis’s conclusory statement that public policy was offended by Martin, because the leased property is located on and is part of the Calcasieu Ship Channel does not set forth any public policy on behalf of this state. While Davis has alleged a cause of action for breach of contract, Martin claims that Davis has not alleged conduct that would suggest Martin acted unlawfully with improper and intentional means or with other behavior that would fall within LUTPA’s proscribed conduct. Merely presenting conclusory allegations regarding Martin’s conduct and labeling it as unfair and deceptive fails to establish a cause of action under LUTPA.

Finally, Martin claims the trial court committed legal error in failing to prohibit Davis from integrating ongoing discovery complaints into its LUTPA claims. Each and every claim Davis has recently made goes back to the allegations that Martin “hid” documents during discovery that were later identified and produced as proof of a LUTPA violation. Citing Quality Envtl. Processes, Inc., 144 So.3d 1011, Martin argues the supreme court has concluded that discovery-related disputes are not actionable under the LUTPA.

In opposition, Davis first asserts that the commercial nature of the lease satisfies the “trade” and “commerce” element of its LUTPA claim. Davis also clarifies that Webb merely held that the lease of the hunting property and camp therein, which are a far cry from the critical piece of commercial property at issue therein, did not fall within the definition of “trade” or “commerce.” Second, Davis claims this is not a simple breach of contract claim. Rather, coupled with the unfair and deceptive acts, Davis has also specifically alleged that Martin is a bad faith obligor, which means an intentional bad faith breach of this commercial lease that would fall within the purview of LUTPA, citing Volentine v. Raeford Farms of La., LLC, 50,698 (La. App. 2 Cir. 8/15/16), 201 So.3d 325, writs denied, 16-1924, 161925 (La. 12/16/16), 212 So.3d 1171. Third, Davis has alleged conduct of Martin that is both (1) unfair in that it offends the public policy of this state against deceitful and dishonest contractual dealings, as well as involves the Calcasieu Ship Channel, a major source of industry, commerce, and economic stability in this state, and (2) deceptive in leasing property and then letting it deteriorate to a point where it will cost approximately $10 million to repair. This conduct, Davis alleges, is sufficiently egregious for Davis to prevail on its LUTPA claim.

Finally, Davis argues this is not a mere discovery dispute, as Davis is alleging Martin actively hid documents that showed it was in active breach of the lease and affirmatively misled Davis, while allowing the docks to fall into disrepair. Martin’s efforts to avoid or postpone incurring millions of dollars in repair expenses, along with its scheme to avoid or to, at least, delay disclosure of such efforts, were all part of a well-orchestrated plan to communicate with Davis in a deceitful, deceptive, and dishonest way, significantly misrepresenting what Martin actually knew as to the large and costly problems at these docks. As the petition alleges, Martin has known for at least six years of the need for these $7 to $10 million repairs, thus elevating these acts to much more than a simple discovery dispute.

| ^Reviewing the petition, the trial court found Davis had alleged sufficient facts that, if true, constitute unfair and deceptive acts by Martin and denied the exception of no cause of action. Looking solely at the petition and accepting all allegations of fact as true and according its language every reasonable interpretation, we find that Davis has alleged sufficient facts to satisfy the jurisprudential standards of (1) unfairness in that Davis specifically alleges Martin’s conduct and practices in relation to its lease obligations offend public policy and are unethical, oppressive, unscrupulous or substantially injurious, and (2) deceptiveness in that Davis alleges Martin’s actions constitute fraud, deceit, or misrepresentations. Davis also alleges the egregiousness of Martin’s efforts to delay full compliance with its mul-ti-million-dollar obligation to maintain and repair the commercial docks in a commercial and state-wide context, particularly as to activities along the Calcasieu Ship Channel. We make no determination here of whether the claims presented by Davis can ultimately be proven at trial. The only question we answer here is whether, in a light most favorable to the Davis, the petition states a valid cause of action under LUTPA. We find that Davis’s allegations are sufficient to survive Martin’s exception of no cause of action. Therefore, the writ is denied.

CONCLUSION

Finding no error in the ruling of the trial court, Martin’s application for supervisory writs is denied.

WRIT DENIED.

      . This court previously denied Relator's writ in which it sought review from the trial court’s denial of its motions for protective order and to quash subpoenas. J.A. Davis Properties, LLC v. Martin Operating Partnership, LP, an unpublished decision bearing docket number 16-834 (La.App. 3 Cir. 1/5/17).

      . In particular, Relator also filed a dilatory exception of vagueness, which the trial court granted. Davis has since filed a Second Amended and Supplemental Petition for Damages Under Lease Agreement to address the trial court’s vagueness concerns to which Relator has filed, on the same day it filed its writ in this court, another peremptory exception of no cause of action. The hearing on that exception is set for June 5, 2017. Both Relator and Davis cite and allude to the second amended petition in this application, but because that petition has not been ruled upon by the trial court, it is not properly before this court and will not be discussed herein.

      . La.R,S. 51:1402(10) provides:
      "Trade” or "commerce” means the advertising, offering for sale, sale, or distribution of any services and any property, corporeal or incorporeal, immovable or movable, and any other article, commodity, or thing of value wherever situated, and includes any trade or commerce directly or indirectly affecting the people of the state.


author: WELCH, J.

text:
    Randolph BROWN v. ALSCO, INC.
    NUMBER 2016 CA 1670
    Court of Appeal of Louisiana, First Circuit.
    JUNE 29, 2017

      Ted Williams, Baton Rouge, LA, Attorney for Appellee, Plaintiff—Randolph Brown
    George J. Nalley, Jr., Andrew J. Miner, Metairie, LA, Attorneys for Appellant, Defendant—Alsco, Inc.
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   WELCH, J.

|.Jn this workers’ compensation dispute, the employer, Alsco, Inc. (“Alsco”), and its workers’ compensation claims administrator, Alternative Service Concepts, appeal a judgment rendered in favor of the employee, Randolph Brown, which found, among other things, that Mr. Brown had not violated La. R.S. 23:1208. Finding no error in the factual findings made by the workers’ compensation judge (“WCJ”), we affirm the judgment and issue this memorandum opinion in compliance with Uniform Rules—Courts of Appeal, Rule 2-16.1(B).

BACKGROUND

Mr. Brown was employed as a route sales driver for Alsco. On or about October 1, 2014, Mr. Brown was unloading some dirty linen hampers from his work truck when he felt a sudden and sharp pain to his back, neck, and shoulders. According to Mr. Brown, he continued to work that day hoping that his pain would subside. However, the next day Mr. Brown claimed that he woke up in serious pain; therefore, he sought medical treatment and reported the accident and injury to his employer. Following this incident, on October 6, 2014, Alternative Service Concepts commenced paying workers’ compensation indemnity benefits and authorized medical treatment.

In November 2014, Mr. Brown had an MRI of his right shoulder, which revealed a tear in his rotator cuff. The rotator cuff tear was surgically repaired in February 2015 by Dr. Matti Palo, an orthopedic surgeon. In December 2014, Mr, Brown was evaluated by Dr. Rand Voorhies, a neurosurgeon, for his neck pain, and was diagnosed with having a right-sided disc herniation at C4-5. After several months of conservative treatment, in July 2015, Dr. Voorhies believed that Mr. Brown was a candidate for an anterior cervical discecto-my and fusion and that he was suffering from a disc osteophyte complex at C4-5. In August 2015, Mr. RBrown saw Dr. Karen Ortenberg, a physical medicine and rehabilitation specialist, who provided work restrictions for Mr. Brown.

On September 29, 2015, Alsco notified Mr. Brown that it was terminating his workers’ compensation indemnity . and medical benefits effective October 4, 2015, on the basis that Mr. Brown had allegedly committed fraud. In response, on October 5, 2015, Mr. Brown filed a disputed, claim for compensation against Alsco and Alternative Service Concepts asserting claims with respect to the failure to authorize medical treatment; the improper .termination of workers’ compensation wage benefits; Mr. Brown’s disability status; and penalties, attorney fees, costs, and interest for the arbitrary and capricious termination of benefits. Alsco answered the suit and raised the affirmative defense of fraud, essentially claiming that Mr. Brown had knowingly and willfully made false statements and/or representations regarding his medical condition and limitations to both physicians and Alsco to obtain workers’ compensation benefits in violation of La. R.S. 23:1208.

Around the beginning of January 2016, and after Mr. Brown’s workers’ compensation benefits were terminated, he obtained a part-time light duty job at the Pelican Athletic Club working in the locker room doing laundry and folding towels. Several months later, he was promoted to a tennis court' technician, which was a full-time position. However, this position required him to perform some activities that were outside of his restrictions. Due to family issues, Mr. Brown quit this job in May 2016, at which time he was earning $10.00 per hour.

A trial was held before the WCJ on June 6 and 7, 2016. The issues presented at trial were: whether Mr. Brown had an accident within the course and scope of his employment with Alsco on October 1, 2014; whether Mr. Brown had violated La. R.S. 23:1208 (or committed fraud); whether Mr. Brown was entitled to workers’ compensation indemnity and medical benefits; whether Mr. Brown Dwas entitled to penalties and attorney fees from Alsco; and whether Mr. Brown was entitled to judicial interest and costs of litigation. On August 29, 2016, the WCJ rendered and signed a judgment, finding in favor of Mr. Brown on most of the issues presented for trial. The WCJ specifically found that Alsco did not carry its burden of proving that Mr. Brown violated La. R.S. 23:1208 by willfully making misrepresentations and false statements to Alsco and/or his treating physicians for the purpose of obtaining workers’ compensation benefits. From this judgment, Alsco has appealed, challenging the WCJ’s determinations with respect to whether Mr. Brown violated La. R.S. 23:120s.

DISCUSSION

Louisiana Revised Statutes 23:1208(A) provides that “[i]t shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” An employee violating La. R.S. 23:1208 shall, upon determination by a WCJ, forfeit any right to workers’ compensation benefits. La. R.S. 23:1208(E). The three requirements for the forfeiture of the right to workers’ compensation benefits under La. R.S. 23:1208 are: (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Our Lady of the Lake Regional Medical Center v. Mire, 2013-1051 (La. App. 1st Cir. 2/18/14), 142 So.3d 52, 56. An employer has the burden of proving each element within this statute, and the lack of any one of the elements is fatal to the employer’s avoidance of liability. Id.

The issue of whether an allegedly false statement or misrepresentation by the employee constitutes a forfeiture of workers’ compensation benefits pursuant to IfiLa. R.S. 23:1208 is one of fact, which may not be disturbed in the absence of manifest error. Id. Under that standard of review, in order to reverse the WCJ’s determination that Mr. Brown did not willfully make false statements or representations for the purpose of obtaining workers’ compensation benefits in violation of La. R.S. 23:1208, this court must find that a reasonable factual basis for the finding did not exist and that the finding is clearly wrong (manifestly erroneous). See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). On appeal, the issue to be resolved by this court is not whether the WCJ was right or wrong, but whether the WCJ’s conclusion was a reasonable one.

In this case, Alsco contends that Mr. Brown violated La. R.S. 23:1208 and forfeited his workers’ compensation benefits because he misrepresented to his treating physicians and Alsco the extent of the injuries he suffered, the limitations on his activities, and his ability to perform the job duties of his pre-accident employment. In support of this contention, Alsco relied heavily on the video surveillance it obtained from a private investigator, which Alsco maintains depicts Mr. Brown, performing activities that were not consistent with his complaints to his treating physicians or Alsco. Video surveillance of Mr. Brown was obtained on September 17 and 18, 2015 and essentially depicts Mr. Brown riding a bicycle to the grocery store and back home, washing an elliptical machine and then moving it into his home, and running various errands, including going to a doctor’s appointment. The footage obtained from this video surveillance was the basis of Alsco’s termination of Mr. Brown’s workers’ compensation benefits. Video surveillance of Mr. Brown was also conducted in April, 2016, after his workers’ compensation benefits were terminated, depicting Mr. Brown working at the Pelican Athletic Club.

|fiAs noted above, in its judgment, the WCJ specifically found that Alsco did not carry its burden of proof that Mr. Brown violated La. R.S. 23:1208 by willfully making misrepresentations and false statements to Alsco or to his treating physicians for the purpose of obtaining workers’ compensation benefits. Based on all of the evidence presented, we cannot say that the WCJ’s factual determinations in this regard were manifestly erroneous. The record contains no evidence indicating that Mr. Brown willfully made any false statement or representation to his physicians or Alsco regarding any of his injuries or capabilities, much less a false statement or representation made specifically for the purpose of obtaining workers’ compensation benefits. First and foremost, we note that Mr. Brown never claimed to either his physicians or Alsco that he could not perform any of the specific activities depicted in the surveillance video. Mr. Brown specifically testified that he could perform activities, but that some activities caused “flare ups” and increased his pain. Furthermore, Mr. Brown explained that his reports of pain to his physicians were based on when the pain was at its worst (ie., when he was having a “flare up”), and not his exact pain level at that particular visit. In addition, Mr. Brown never denied that he had obtained work at Pelican Athletic Club following the termination of his workers’ compensation benefits and he voluntarily provided documentation of his income to Alsco.

Furthermore, with respect to the video surveillance of Mr. Brown, in the WCJ’s written reasons for judgment, she found that Mr. Brown “was very credible and [that] his explanations were reasonable as to events/issues raised by [Alsco]”, and that Alsco’s “interpretation of many events/issues were shaky and ill-founded.” The WCJ also found that “[Alsco’s] private investigator’s report was misleading in that it left out critical facts of events that he observed but chose not to put in his report” and that the private investigator admitted these omissions at trial. We find that the WCJ’s findings in this regard are fully supported by the |7record and were not manifestly erroneous. For example, Al-sco, in its answer asserting the affirmative defense of fraud, maintained that on September 17, 2015, Mr. Brown reported at physical therapy that he had difficulty driving (among other things), but that the video surveillance on September 18, 2015 depicted Mr. Brown driving to the doctor’s office, waiting in the parking lot, meeting an unidentified male in the parking lot at the doctor’s office, and then having that unidentified male sit in the driver’s seat of Mr. Brown’s car during the appointment to make it appear as though someone had to drive Mr. Brown to his appointments. However, Mr. Brown testified that on September 18, 2015, he drove to a doctor’s appointment with his minor child, who was sleeping in the backseat of the car. Mr. Brown explained that his son has cancer and a weakened immune system and that instead of bringing his son into the doctor’s office, he had his cousin, Harry Brown, meet him in the parking lot to watch the minor child while Mr. Brown went to his appointment. This was confirmed by the testimony of Harry Brown. Initially, the private investigator denied that anyone else was in Mr. Brown’s car; however, he subsequently admitted that there was a child in the car. The private investigator did not include the child in the video or document that fact in his written report and had no explanation for that omission.

It is clear that the WCJ thoroughly assessed Mr. Brown’s credibility in determining that he did not willfully make false statements or representations for the purpose of obtaining workers’ compensation benefits. Where, as here, the WCJ’s factual determination is based largely on credibility determinations, the manifest error standard of review demands great deference to the trier of fact’s findings, for only the fact finder can be aware of the variations in demeanor and tone that bear so heavily on the listeners understanding and belief in what is said. See Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). After reviewing the record and giving due. deference to the WCJ’s credibility determination, we find that thejjWCJ’s determination that Alsco failed to. prove that Mr. Brown violated La. R.S. 23:1208 by willfully making misrepresentations and false statement to Alsco and/or his treating physicians for the purpose of obtaining workers’ compensation benefits is reasonably supported by the record and is not manifestly erroneous. Accordingly, the judgment is affirmed.

CONCLUSION

For all of the foregoing reasons, the August 29, 2016 judgment of the WCJ is affirmed. All costs of this appeal are assessed to the appellants, Alsco, Inc. and Alternative Services Concept.

AFFIRMED.

Holdridge J. Concurs

Crain J. Concurs

      . Alsco also assigned as error the WCJ’s determinations that Mr. Brown had $0 earning capacity from October 5, 2015 to December 31, 2015. However, that assignment of error was not briefed; thus, it is deemed abandoned. See Uniform Rules-Courts of Appeal, Rule 2—12.4(B)(4).


author: WELCH, J. CRAIN, J.,

text:
    Robert JEFFERSON v. INTERNATIONAL MARINE, LLC
    NO. 2016 CA 0472
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JULY 05, 2017

      E. Byrne Edwards, Lafayette, Louisiana, Attorney for Plaintiff/Appellee Robert Jefferson
    Wilton E. Bland III, Juan C. Obregon, New Orleans, Louisiana, Attorneys for De~ fendants/Third-Party Plaintiffs/Appellants International Marine, LLC and International Offshore Services, LLC
    Nicholas J. Cenac, R. Edward Blanchard, Sidney W. Degan III, New Orleans, Louisiana, Attorneys for Third-Party Defendant/Appellee General Fabricators, Inc.
    Catherine M. Landry, Jonathan L. Woods, Lafayette, Louisiana, Attorneys for Third-Party Defendant/Appellee McMoRan Oil & Gas, LLC
    BEFORE: PETTIGREW, WELCH, CRAIN, THERIOT, AND HOLDRIDGE, JJ.
   WELCH, J.

^International Marine, LLC (“International”) appeals a summary judgment in favor of McMoRan Oil & Gas, LLC (“McMoRan”) dismissing International’s third-party demand against McMoRan. For reasons that follow, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

This case arises out of an offshore oilfield related accident. The plaintiff, Robert Jefferson, was on the deck of a supply vessel waiting to be transported onto an offshore drilling platform, when he allegedly stepped into a gap caused by a missing deck board, fell, and sustained injuries, McMoRan was the owner of the drilling platform. International was the owner of the vessel, and pursuant to a charter agreement with McMoran, it provided service vessels for transporting personnel and supplies to the drilling platform. Jefferson was an employee of General Fabricators, Inc., a contractor that provided a broad range of services to McMoRan related to the drilling platform under a general services contract.

Jefferson sued International alleging that its negligence was the sole cause of the accident. International filed a third-party demand against McMoRan, asserting claims under both the charter agreement between International and McMo-Ran, and the services contract between General Fabricators and McMoRan. Under the charter agreement, International alleged that it was entitled to indemnity from McMoRan for any liability to Jefferson. Under the services contract, International alleged that it was an “invitee” of McMoRan, and, as such, International claimed it was entitled to indemnity from General Fabricators under that agreement. However, according to the third-party demand, International was deprived of this 13right of indemnity when McMo-Ran breached the services contract by failing to pay the cost of insurance obtained by General Fabricators to cover the indemnity obligation.

McMoRan filed a motion for summary judgment seeking the dismissal of International’s third-party demand on the following two grounds: (1) the charter agreement did not require McMoRan to indemnify or defend_ International for Jefferson’s claims, and (2) the services contract did not require McMoRan to obtain insurance coverage (referred to in the motion and by the parties as “Marcel coverage”) for the benefit of International.

After a hearing, the trial court granted McMoRan’s motion for summary judgment. In its written reasons for judgment, the trial court found that McMoRan had no obligation to defend or indemnify International for Jefferson’s claims and that McMoRan was not obligated to secure insurance coverage for International. A judgment in accordance with the trial court’s written reasons, which dismissed the entirety of International’s third-party demand against McMoRan with prejudice, was signed on December 30, 2015, and it is from this judgment that International now appeals.

LAW AND DISCUSSION

A motion for summary judgment shall be granted only if the pleadings, der positions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is | ¿entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. In re Succession of Beard, 2013-1717 (La. App. 1st Cir. 6/6/14), 147 So.3d 763, 769-60. However, “summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.” La. C.C.P. art. 966(F)(1) (emphasis added).

McMoRan’s motion sought the dismissal of International’s third-party demand “on the basis that the applicable contractual agreements [did] not obligate McMoRan to defend, indemnify- or obtain insurance coverage (‘Marcel coverage’) for the benefit of International.” Specific to the services contract, the motion asserts that McMo-Ran “did not have an obligation, contractual or otherwise, to International to provide Marcel [coverage or any other additional insurance coverage in this situation, nor would International have been deemed a beneficiary to any insurance purchased by McMoRan.”

The phrase “Marcel coverage” originated in the context of the Louisiana Oilfield Anti-Indemnity Act (“the Act”). The Act, set forth in La. R.S. 9:2780, was adopted to address inequities foisted on oilfield contractors through indemnity provisions that obligated a contractor to indemnify a principal (usually a larger oil and exploration company) for liability resulting from the principal’s own negligence. See La. R.S. 9:2780(A). Louisiana Revised Statutes 9:2780(B) declares those indemnity provisions void and unenforceable.

|Jn addition, La. R.S. 9:2780(G) declares null and void any insurance provision in a covered agreement that frustrates or circumvents the prohibitions of the Act, including a provision that requires a contractor to add the principal to the contractor’s insurance or secure any other form of insurance protection. See Rogers v. Samedan Oil Corporation, 308 F.3d 477, 481 (5th Cir. 2002); Babineaux v. McBroom Rig Building Service, Inc., 806 F.2d 1282, 1283-1284 (6th Cir. 1987). A contractual provision requiring a contractor to extend its insurance coverage to cover the principal’s acts of negligence is void. See Rogers, 308 F.3d at 481. Such a provision, although not a proscribed indemnity agreement, nevertheless circumvents the purpose of the Act by forcing the contractor to bear the financial burden of providing insurance to cover the principal’s negligence. See Id.

The courts, however, have recognized that La. R.S. 9:2780(G) does not prohibit a provision requiring a contractor to add the principal as an additional insured to the contractor’s liability insurance, if the principal pays the cost of the premium associated with its addition to the contractor’s policy. See Marcel v. Placid Oil Company, 11 F.3d 563, 569-70 (5th Cir. 1994); Patterson v. Conoco, Inc., 670 F.Supp. 182, 184 (W.D. La. 1987). The rationale for permitting such a provision was explained in Marcel as follows:

The [Act] is aimed at preventing the shifting of the economic burden of insurance coverage or liability onto an independent contractor. If the principal pays for its own liability coverage, however, no shifting occurs. We see no need to prevent such an arrangement in order to give effect to the [Act]. Indeed, agreements such as the one in Patterson may be economically desirable in situations where it is less expensive for the independent contractor to add the principal as an 'additional insured than for the principal to obtain its own insurance on a particular operation.

Marcel, 11 F.3d at 569-70.

laThus, in Marcel, 11 F.3d at 569-570, a limited exception to the Act was established that recognized the validity of indemnity provisions in oilfield contracts where the principal pays for its own indemnity insurance, and that exception is premised upon the fact that there is no shifting of the economic burden of the cost of insurance onto the independent contractor. The exception established by this jurisprudence gave rise to the phrase “Marcel coverage” or “the Marcel exception.” As indicated, it merely recognizes that the Act does not prohibit a contractual provision whereby one party will be named as an additional insured under the other party’s insurance, if the party being added pays the increase in the premium resulting from his addition to the policy. In short, the Act- does not prohibit a party from obtaining insurance coverage if he pays for it.

McMoRan’s motion for summary judgment asserted that its services contract with General Fabricators did not require McMoRan to provide Marcel coverage for International. International has conceded that the indemnity provision in the charter agreement with McMoRan did not obligate McMoRan to indemnify International for the claims asserted by Jefferson. Therefore, summary judgment was properly granted in favor of McMoRan dismissing International’s claims under the charter agreement. International has also conceded that the services contract between McMoRan and General Fabricators did not obligate McMoRan to obtain insurance for International, or to add International as an additional insured under any ■existing policy, likewise making summary judgment proper as to that issue under the services contract. ■ According to International; “Whether or not International [was] an additional insured on General’s ■ insurance policies has no relevance to the issue before the Court. International is not seeking relief as an additional insured on General’s policies.”

| ^Rather, International contends that the trial court erred in dismissing its claim against McMoRan seeking recovery for the alleged loss of a right of indemnity from General Fabricators due to McMo-Ran’s failure to pay the premium cost for General Fabricators’ insurance policy. According to International,' it was an invitee of McMoRan and, therefore, under the terms of the services contract, it had a right of indemnity from General Fabricators for any liability to Jefferson. International asserts that it lost this right of indemnity when McMoRan breached the services contract by failing to pay the cost of insurance obtained by General Fabricators to cover the indemnity obligation. Relying on the Act and jurisprudence interpreting the Act, International claimed that McMoRan’s failure to pay for the insurance rendered the indemnity provision null and unenforceable against General Fabricators. In other words, the claim is that but for McMoRan’s breach of the services contract by failing to pay for General Fabricators’ insurance, International would have been indemnified by General Fabricators. According to International, the alleged loss of this indemnity right, as opposed to a loss of insurance coverage, was the focus of its claim against McMoRan.

Initially, we note that McMoRan’s motion for summary judgment does not address International’s claim that it was deprived of a right of indemnity from General Fabricators due to McMoRan’s failure to pay for the insurance obtained by General Fabricators. The motion for summary judgment does not, either directly or indirectly by reference to the supporting memorandum, present that claim for determination. Instead, McMo-Ran’s motion for summary judgment was limited to whether the services contract obligated McMoRan to procure insurance—“Marcel coverage”—for International. Thus, International’s claim that it was deprived of a right of indemnity falls beyond the scope of McMoRan’s motion for summary judgment and should not have been considered or addressed |sby the trial court when rendering the summary judgment. See La. C.C.P. art. 966(F)(1).

Nonetheless, while this issue may have exceeded the scope of McMoRan’s motion for summary judgment, we find that the trial court reached the right result and properly dismissed International’s claims in this regard. Under the facts alleged in International’s third party demand, as well as the controlling provisions of the Act, set forth in La. R.S. 9:2780, we find that International does not have a cause of action against McMoRan for the alleged loss of the right to indemnity. In other words, the law does not provide a remedy for International against McMo-Ran for the alleged loss of its right to indemnity from General Fabricators based upon McMoRan’s alleged failure to pay the premium for the insurance coverage obtained by General Fabricators.

Under the Act, International did not have a right of indemnity against McMo-Ran and International has acknowledged that the indemnity provision in the charter agreement with McMoRan did not obligate McMoRan to indemnify International for the claims asserted, by Jefferson. Nor does International fall within the Marcel exception to the Act since, the services contract between McMoRan and General Fabricators did not obligate McMoRan to obtain insurance for International, or to add International as an additional insured under any existing policy. While the services contract may have provided that McMoRan was required to pay for any indemnity insurance obtained by General Fabricators, the Marcel exception does not impose a requirement upon principals to purchase | ¡¡indemnity insurance; it simply recognizes the validity of such arrangements. Furthermore, the Marcel exception does not extend to third party beneficiaries, such as International, who do not pay for coverage under the indem-nitor’s policy.

' Accordingly, since International has no right of indemnity, it could not lose the right to indemnity, even if based on McMoRan’s alleged failure to pay the premium for the insurance coverage obtained by General Fabricators. To allow such a claim would imply that defense, indemnity, or insurance coverage was required for McMoRan, which would circumvent and frustrate the purpose of the Act. Therefore, we’find that International does not have a cause of action against McMoRan for the loss of the right to indemnity and the trial court properly dismissed International’s claim in this respect.

CONCLUSION

For all of the above and foregoing reasons, the December 30, 2015 judgment dismissing all of International’s claims against McMoRan is affirmed. All costs of this appeal are assessed to the defendant/appellant, International Marine, LLC.

AFFIRMED.

Theriot, J. concurs without reasons

Holdridge, J. dissents in part for the reasons assigned by J. Crain

Crain, J. dissents in part and assign reasons

CRAIN, J.,

dissenting in part.

I,The majority correctly concludes the trial court exceeded the scope of the motion for summary judgment by dismissing International’s claim alleging the loss of its indemnity right under the service contract, but I believe errs by dismissing that claim after sua sponte raising and sustaining an exception of no cause of action. The third-party demand alleges the service contract provided an indemnity right in favor of McMoRan and its “invitees” and the parties intended to avail themselves of an “exception” to the Oilfield Anti-Indemnity Act recognized in Patterson v. Conoco, Inc., 670 F.Supp. 182 (W.D. La. 1987), and Marcel v. Placid Oil Company, 11 F.3d 563 (5th Cir. 1994). The applicability of the alleged “Marcel exception” to International’s asserted indemnity right, and the impact thereon, if any, of McMoRan’s alleged failure to pay for certain insurance coverage, while facially questionable, should first be addressed by the trial court who can consider all evidence and arguments bearing on the issues. I believe the reviewable record is insufficiently developed to decide the merits of International’s claim for the alleged loss of its indemnity right. On that issue, I respectfully dissent.

      . The third-party demand was also filed on behalf of International Offshore Services, LLC. Both International Marine, LLC and International Offshore Services, LLC are collectively referred to hereinafter as "International.”

      . As discussed in greater detail hereinafter, the phrase "Marcel coverage” is a reference to an insurance provision that the court in Marcel v. Placid Oil Company, 11 F.3d 563, 569-70 (5th Cir. 1994), held was enforceable under the Louisiana Oilfield Anti-Indemnity Act, La. R.S. 9:2780.

      . Louisiana Code of Civil Procedure article 966 was amended and re-enacted by 2015 La. Acts, No. 422, § 1, eff. January 1, 2016. The amended version of La. C.C.P. art. 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the act. McMoRan’s motion for summary judgment was filed on July 15, 2015, which was prior to the effective date of the act. Accordingly, we refer to the former version of La. C.C.P. art. 966. See 2015 La. Acts 2015, No. 422, §§ 2 and 3.

      . The failure to disclose a cause of action may be noticed by either the trial court or an appellate court on its own motion, La.- C.C.P, art, 927(B), The peremptory exception raising the objection of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La. 3/17/06), 929 So.2d 1211, 1217. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Id.