author: MOORE, J.

text:
    IN RE: MEDICAL REVIEW PANEL PROCEEDING OF Mildred Louise LYONS
    No. 51,750-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 15, 2017
    PATRICK R. JACKSON, A.P.L.C. By: Patrick R. Jackson Counsel for Plaintiff Appellant, Theresa A. Henderson, Attorney-in-Fact for Mildred Louise Lyons
    MAYER, SMITH & ROBERTS, L.L.P. By: Mark A. Goodwin Counsel for Defendant Appellee, Christus Health Central Louisiana
    Before MOORE, PITMAN, and DREW (Ad Hoc ), JJ.
   MOORE, J.

The plaintiff, Mildred Louise Lyons, appeals from a summary judgment in favor of the defendant, Christus Health Central of Louisiana, that dismissed the Medical Review Panel proceeding instituted by the plaintiff against the defendant. For the following reasons, we render judgment granting the plaintiff's cross-motion for summary judgment and remand for further proceedings.

FACTS

On November 29, 2012, Mildred Louise Lyons, age 84, was a resident of the assisted living portion of Christus St. Joseph's Home, known as St. Joseph's Home Assisted Living Center. Christus St. Joseph's Home is owned by Christus Health Central of Louisiana. Ms. Lyons had lived in the facility since May 5, 2009. Her apartment was located on the third floor.

During the afternoon of that day, Ms. Lyons, who suffered from dementia, was found wandering in the parking lot of the facility looking for her car. She was redirected inside the facility and reportedly participated in activities later that afternoon.

Ms. Lyons was present in her room at the 9:00 p.m. bed check, but she was not there for the 11:00 p.m. bed check. She was subsequently discovered lying unconscious on the ground outside the building below an open third-story window. The investigating police officer, Detective J.C. Sturdivant, determined that she had fallen 21 feet from the open window. In his report he wrote:

The window was at the end of the hallway of the third floor, where Lyons resided. The window had been raised, and the screen had been pushed away. It appeared that Lyons exited the third floor window, for an unknown reason, and fell to the ground.

Ms. Lyons sustained serious injuries, including brain bleeding and multiple bone fractures to her legs, hip and ribs as well as other serious bodily injuries. However, she subsequently recovered and was later released from the hospital.

Ms. Lyons died 2½ years later on July 30, 2015. Theresa Henderson, her sister who initiated this action on her behalf, has been substituted as the plaintiff.

Ms. Lyons had a history of wandering. Detective Sturdivant also stated in his narrative that Michelle Musgrove, the director of the assisted living center, told him that it was common for Ms. Lyons to "get lost," exit the building looking for her vehicle which she does not own, and forget which apartment she lived in. She reported that Ms. Lyons' condition had worsened, and for that reason she was on a list to be checked on approximately every two hours.

Three weeks prior to this accident, on November 7, 2012, Ms. Lyons was taken to Woodlands Behavioral Center for psychiatric evaluation and medication adjustment with complaints of agitation, aggressive behavior and wandering. She was diagnosed with severe dementia (Alzheimer's type), impulse control disorder, hyperlipidemia and hypertension, labile mood, insomnia and vitamin deficiency. Her medications for these problems were adjusted, and upon discharge on November 22, 2012, her physical condition was described as poor. She was then sent directly to Winn Parish Medical Center hospital. She was returned back to Christus St. Joseph's on November 27, 2012.

Two days later, Ms. Musgrove called Theresa Henderson about transferring Ms. Lyons to a more appropriate facility given her condition, and contacted The Oaks facility about evaluating Ms. Lyons for admission to that facility. However, before any further action was taken, the accident occurred.

Ms. Henderson, filed a medical malpractice complaint against Christus St. Joseph's Home with the Louisiana Patient's Compensation Fund ("PCF") requesting a Medical Review Panel ("MRP") proceeding pursuant to the Louisiana Medical Malpractice Act ("MMA" or "Act. ). The PCF sent plaintiff's attorney a letter stating that St. Joseph's Home is a self-insured provider "qualified for acts of medical malpractice under the provisions of La. R.S. 40:1299.41 et seq. for the claim." Christus Health Central sent plaintiff's counsel a letter stating that St. Joseph's Home is owned by Christus Health Central doing business as St. Joseph's Home. Before any further action was taken, the proceedings of the MRP were stayed because Christus Health Central filed a petition for declaratory judgment in district court. The petition asserted that this assisted living facility is not a "health care provider" as defined by the Act, does not provide "health care" as defined by the Act, and that the plaintiff's PCF claim is an ordinary negligence claim, not a medical malpractice claim, and therefore outside the scope of the Act. It also argued in a supporting memorandum that the plaintiff's negligence claim has now prescribed, and therefore both the malpractice claim and tort claim should be dismissed with prejudice.

Subsequently, Christus Health Central moved for summary judgment on the question of whether Ms. Lyons' claim fell within the scope of the Act, as Christus St. Joseph's Home Assisted Living Center is not a "health care provider" as defined by the MMA, and does not provide "health care" to its residents. Defendant filed a cross-motion on the same issue.

Following a hearing, the district court granted Christus Health Central's motion, denied Ms. Lyons' cross-motion, and rendered summary judgment dismissing the MRP proceeding. This appeal followed.

APPLICABLE LAW

We review the grant of a motion for summary judgment de novo using the same criteria as the district court. Rodgers v. State Farm Mutual Auto. Ins. , 2015-0868 (La. 6/30/15), 168 So.3d 375.

The MMA was enacted by the Louisiana Legislature in response to a "perceived medical malpractice insurance 'crisis'." Dupuy v. NMC Oper. Co., L.L.C. , 2015-1754 (La. 3/15/16), 187 So.3d 436 ; Williamson v. Hospital Serv. Dist. No.1 of Jefferson, 04-0451, p.4 (La. 12/1/04), 888 So.2d 782, 785. The legislative intent was to reduce or stabilize medical malpractice insurance rates and to assure the availability of affordable medical services to the public. Id. Toward this end, "the MMA gives qualified health care providers two advantages in actions against them for malpractice, namely, a limit on the amount of damages and the requirement that the claim first be reviewed by a medical review panel before commencing suit in a court of law." Id. at 439.

In view of these advantages, we note the unusual position taken by the defendant notwithstanding certification by the PCF that it is a qualified health care provider ("QHCP"), by arguing that it is not a "health care provider" under the Act with regard to the St. Joseph's Home Assisted Living facility. Nor, it argues, did it provide "health care" to Ms. Lyons that resulted in her injuries. It maintains that the plaintiff must therefore bring her action in district court as an ordinary negligence claim subject to one-year liberative prescription; because that claim has now prescribed, it should be dismissed with prejudice.

The MMA and its limitations on tort liability for QHCPs apply strictly to claims "arising from medical malpractice," and all other tort liability on the part of the QHCP is governed by general tort law. Dupuy, supra. Because the limitation on liability the MMA gives to qualified health care providers is in derogation of the rights of tort victims, the Act is strictly construed. Id.

"Malpractice" is defined under the MMA in pertinent part as "any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider , to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient." La. R.S. 40:1231.1(A)(9) ; White v. Glen Retirement Sys. , 50,508 (La. App. 2 Cir. 4/27/16), 195 So.3d 485. (Emphasis supplied).

The first question raised by the definition of "malpractice" is the question of whether the defendant is a "health care provider." La. R.S. 40:1231.1(A)(10) ; Dupuy, supra at 440. The statute defines a "health care provider" as follows:

(10)
"Health care provider" means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed or certified by this state to provide health care or professional services as a physician, hospital, nursing home, community blood center, tissue bank, dentist, a licensed dietician or licensed nutritionist employed by, referred by, or performing work under contract for, a health care provider or other person already covered by this Part, registered or licensed practical nurse or certified nurse assistant, offshore health service provider, ambulance service under circumstances in which the provisions of R.S. 40:1237.1 are not applicable, certified registered nurse anesthetist, nurse midwife, licensed midwife, nurse practitioner, clinical nurse specialist, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, social worker, licensed professional counselor, licensed perfusionist, licensed respiratory therapist, licensed radiologic technologist, licensed clinical laboratory scientist, or any nonprofit facility considered tax-exempt under Section 501(c)(3), Internal Revenue Code, pursuant to 26 U.S.C. 501(c)(3), for the diagnosis and treatment of cancer or cancer-related diseases, whether or not such a facility is required to be licensed by this state, or any professional corporation a health care provider is authorized to form under the provisions of Title 12 of the Louisiana Revised Statutes of 1950, or any partnership, limited liability partnership, limited liability company, management company, or corporation whose business is conducted principally by health care providers, or an officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment.

The second prong of the analysis raised by the definition of malpractice is whether the act or omission involved health care. "Health care" means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components. La. R.S. 40:1231.1(A)(9) ; White, supra.

In addition, to qualify for the limitations of liability afforded by the MMA, a health care provider must become a QHCP by fulfilling the requirements of La. R.S. 40:1231.2(A), which provides:

A. To be qualified under the provisions of this Part, a health care provider shall:

(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1131.4.
(3) For self-insured health care providers, initial qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Initial qualification shall be effective for all other health care providers at the time the malpractice insurer accepts payment of the surcharge.

The Louisiana Administrative Code 37:III.501 governs the qualifications, conditions, and procedures required for PCF enrollment. The qualifications for enrollment are listed in LAC 37:III.503 :

A. To be eligible for enrollment with the fund, a person, professional corporation, professional partnership, or institution shall:

1. be a health care provider, as defined by the Act or by these rules, who or which is engaged in the provision of health care services within the state of Louisiana, and which is not organized solely or primarily for the purpose of qualifying for enrollment with the fund;
2. demonstrate and maintain, to the satisfaction of and in the manner specified by the executive director and in accordance with the standards prescribed by §§ 503-511 hereof, or as otherwise provided by law, financial responsibility for, and with respect to, malpractice or professional liability claims asserted against the person or institution;
3. make application for enrollment upon forms prescribed and supplied by the executive director, pursuant to § 513 of these rules; and
4. pay the applicable surcharges to the fund.

Upon meeting these qualifications, the health care provider is issued a certificate of enrollment with the PCF (with emphasis supplied):

A. Upon receipt and approval of a completed application (including evidence of financial responsibility pursuant to § 505, § 507 or § 509) and payment of the applicable surcharge by or on behalf of the applicant health care provider, the executive director shall issue and deliver to the health care provider a certificate of enrollment with the fund, identifying the health care provider and specifying the effective date and term of such enrollment and the scope of the fund's coverage for that health care provider.
B. Duplicate or additional certificates of enrollment shall be available to and upon the request of an enrolled health care provider or his or its attorney, or professional liability insurance underwriter when such certification is required to evidence enrollment or qualification with the fund in connection with an actual or proposed malpractice claim against the health care provider.

Our jurisprudence holds that a certificate of enrollment submitted into evidence establishes a prima facie case for the applicability of the MMA regarding claims against the party identified on the certificate. La. R.S. 13:3711, 3712; Roark v. Liberty Healthcare Sys., LLC , 44,913 (La. App. 2 Cir. 12/9/09), 26 So.3d 968, writ denied , 2010-0390 (La. 4/23/10), 34 So.3d 265 ; Roberson v. Arcadia Healthcare Ctr., Inc. , 37,761 (La. App. 2 Cir. 7/9/03), 850 So.2d 1059 ; Hill v. Brentwood Hosp ., 480 So.2d 875 (La. App. 2 Cir. 1985) ; Goins v. Texas State Optical, Inc. , 463 So.2d 743 (La. App. 4 Cir. 1985). This presumption also applies to a letter from the PCF identifying a party as enrolled in the PCF. In Bickham v. Emergency Med. Consultants , 2010-0535 (La. App. 1 Cir. 11/1/10), 52 So.3d 162, the court stated that a letter from the PCF stating that Lifeline was enrolled with the PCF under the provisions of La. R.S. 40:1299.41, et seq. is considered prima facie proof that the provider is a QHCP under the Act, and that plaintiffs had offered no countervailing evidence as to Lifeline's qualification. See Hidalgo v. Wilson Certified Express, Inc. , 94-1322, p. 5 (La. App. 1 Cir. 5/14/96), 676 So.2d 114, 117 ; Roberson v. Arcadia Healthcare Ctr., Inc. , supra ; Remet v. Martin, 98-2751, pp. 6-9 (La. App. 4 Cir. 3/31/99), 737 So.2d 124; 128-129 ; Goins v. Texas State Optical, Inc. , supra.

The district court stated in its written reasons that it granted Christus Health Central's motion for summary judgment on grounds that its assisted living facility is not a "health care provider" as contemplated by the MMA and, further, that "health care" as defined by the Act was not provided to Ms. Lyons in connection with her residence at the assisted living center. It reached these conclusions on finding that:

(1) Operation of an assisted living facility requires a different operating license issued by the state than the license to operate a nursing home. La. R.S. 40:2166.3 et seq.
(2) "Assisted Living" facilities are not included among the listed health care providers in the statutory definition of a "health care provider." La. R.S. 40:1231.1(A)(10).
(3)The contract between residents and St. Joseph's Home Assisted Living Center states that the facility does not render medical services to residents of the facility; any arrangement for medical care involves a separate agreement with Christus involving third-party providers.

The court noted that the Louisiana Legislature has had many opportunities to amend the statutory definition to include "assisted living" facilities in its list of health care providers, as it did "nursing homes," but it has not done so. It thus concluded that as a matter of policy, the Legislature has excluded assisted living centers from the class of health care providers covered by the MMA. Nursing homes, it said, are distinguished from assisted living facilities by the type of care they provide: " 'Assistance' is, in the Court's view, the proper term for the work or effort they put forth on behalf of their residents in helping each with their daily activities to a far more limited degree in light of the greater degree of self-sufficiency their residents possess."

The second prong of the court's analysis involved whether the defendant was providing "health care" services to the plaintiff that resulted in damages sustained that would trigger the MMA. The court concluded that under the contractual arrangements between the assisted living center and its residents, Christus Health Central did not provide "health care" services as contemplated by the MMA. Any health services it did provide, said the court, were obtained by entering a separate contract with a third party which was separate from the residential contract between the resident and assisted living facility.

As a result of these conclusions, the court rendered judgment granting the defendant's motion for summary judgment and dismissing the proceedings of the MRP.

ANALYSIS

Pursuant to La. C.C.P. art. 2164, "[t]he appellate court shall render any judgment which is just, legal and proper upon the record on appeal." Based upon our review of the record, and for the following reasons, we reverse the judgment of the district court granting the defendant's motion for summary judgment, and render judgment in favor of the plaintiff, granting her motion for summary judgment.

After initially naming the defendant as St. Joseph's Home, Ms. Lyons' counsel sent the PCF a letter informing them that Christus Health Central Louisiana was the defendant doing business as Christus St. Joseph's Home. The record shows that the PCF acknowledged by letter that St. Joseph's Home is a QHCP. As noted above, our jurisprudence holds that such a letter establishes a prima facie case that the defendant has met the qualifications of the Act and Administrative Code as a health care provider qualified for the protections afforded by the MMA. La. R.S. 13:3711, 3712; Roark v. Liberty Healthcare Sys., LLC , supra ; Roberson v. Arcadia Healthcare Ctr., Inc. , supra ; Bickham v. Emergency Med. Consultants , supra ; Hill v. Brentwood Hosp. , supra ; Goins v. Texas State Optical, Inc. , supra .

As a result, to prevail in its motion for summary judgment declaring that it is not a "health care provider" with respect to its assisted living facility, the defendant had the burden of showing that its assisted living facility is not covered by its certification as a QHCP.

The best evidence of this would have been a Certificate of Enrollment from the PCF that indicated the assisted living part of its facility was not included in the certification. No such document was ever produced. Also absent was any documentary evidence that the assisted living facility is a separate legal entity from Christus Health Central d/b/a St. Joseph's Home, or that it requested the PCF to exclude the assisted living portion of the facility because it did not meet the definition of a health care provider. In fact, it alleges in its petition for declaratory judgment that the assisted living facility is part of and operated by St. Joseph's Home, albeit with a different address in an adjacent building nearby connected by a breezeway to the nursing home.

Christus Health Central's main argument is that the assisted living facility operated under a different license than the nursing home facility known as St. Joseph's Home. It did not produce the license, however. We are not persuaded by this argument. Most health care providers operate under distinct license requirements unique to their particular profession or enterprise. The defendant has not shown that the distinct license to operate an assisted living facility as opposed to the license to operate the nursing home part of the facility makes that facility a legally distinct entity from Christus St. Joseph's Home or excludes it from being a health care provider.

We are also not persuaded by the legal conclusion attested to in Ms. Musgrove's affidavit that, based on her familiarity with nursing homes and assisted living centers, St. Joseph's Assisted Living Center is not a health care provider.

In short, the defendant, Christus Health Central Louisiana d/b/a Christus St. Joseph's Home, has presented little more than argument, where proof by documentation is needed, that its assisted living facility is not a health care provider qualified by the PCF. Accordingly, we conclude that the defendant in this PCF complaint, Christus Health Central Louisiana d/b/a St. Joseph's Home is a health care provider qualified under the Act.

We turn now to the more difficult and pivotal question, in our view, of whether the Christus Health Central provided health care services to Ms. Lyons and thus the alleged negligence is malpractice as defined by the MMA. Health care is defined, in pertinent part, by the Act as "any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." La. R.S. 40:1231.1(A)(9).

The contract between Christus St. Joseph's Assisted Living Center and its residents stipulates that it will provide basic services including living accommodations, housekeeping services, meals, planned activities and so on. As noted by both parties, the facility agreed to "regularly observe residents' health condition ... and needs for special services" and "will make personal assistance and care available to resident, according to his or her needs, as determined by Christus St. Joseph Assisted Living Center's staff, and utilizing its routine levels of staffing and equipment." A provision in the contract excludes health-related services, such as "furnishing or paying for healthcare items or services not expressly included in the Agreement, including, but not limited to physician's services, nursing services, surgery, hospital care, private duty care ... care for behavioral problems, including behaviors associated with advanced Alzheimer's disease or other dementia."

Accordingly, we agree with the trial court that St. Joseph's Home Assisted Living Facility's contract did not provide healthcare services, including such services for "behaviors associated with advanced Alzheimer's disease or other dementia."

On the other hand, it is clear from this record that the facility routinely accepted residents with dementia or Alzheimer's disease, and, according to Ms. Musgrove in her deposition testimony, when the dementia of a resident became too severe, the resident was transferred to another facility. Based on this comment, we suspect that a resident's transition from mild or moderate dementia, which was easily handled with routine custodial checks by the staffing at the facility, to severe dementia, occurs over time, as was apparently the case with Ms. Lyons.

The record further indicates that Ms. Lyons must have reached such a condition of severe dementia when she was sent to Woodlands Behavior Center for reevaluation with complaints of agitation, aggressiveness and wandering; she spent two weeks there. The medical notes indicate severe dementia such that communication was almost meaningless. Her health was recorded as poor and she was sent to Winn Parish Medical Center for treatment of her poor physical state. She then returned to Christus St. Joseph's Home Assisted Living Center, and the director immediately began the process of transferring her out of the facility. We note that contract between the facility and resident allows the facility, after consultation with the resident's physician and family, to make such a transfer.

In our view, when the director determined that the assisted living facility could no longer provide the care Ms. Lyons required, as was obvious from her behavior and recent medical assessment, it was incumbent upon the director to report this fact to the administrator of the nursing home who, in fact, was ultimately responsible for the facility as the administrator of St. Joseph's Home. At this point, a proper assessment could have been to determine what immediate actions were required to ensure that Ms. Lyons was not a threat to herself or others, even if it required around-the-clock custodial care or additional staffing in the facility pending her transfer.

It is indisputable that Alzheimer's disease and the associated dementia that Ms. Lyons suffered from was a medical condition that required health care treatment. In our view, by virtue of its agreement to monitor her health and needs for special services and to take the appropriate measures to provide such care, its failure to secure the safety of Ms. Lyons was an omission constituting health care as defined by the Act as it was "any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement" La. R.S. 40:1231.1(A)(9) ; White, supra.

Christus Health Central has also argued that Ms. Lyons was not a "patient" as defined by the Act. In our view, when her dementia had reached the degree of severity that it had on November 29, 2012, and it became incumbent upon St. Joseph's Home to exercise the greater degree of care to ensure her safety, she became a "patient" irrespective of whether she was officially enrolled in the nursing home.

Our opinion is bolstered by the decision of this court in White v. Glen Retirement Sys., supra , a case analogous to the instant case in many respects. The plaintiff suffered from severe dementia and was prone to falling. She was injured when she fell out of her bed which had been placed by a staff nurse in the highest possible position. When she was discovered on the floor, a nurse simply put her back in the bed without noticing femoral fractures, which were later discovered when the plaintiff exhibited excruciating pain. The plaintiff sued the Glen in district court and made a request for an MRP alleging claims of negligence and malpractice. The PCF sent a letter confirming that the Glen was qualified for acts of malpractice under the MMA. The facts indicated that the nursing staff was aware of the plaintiff's potential for injury, her high risk of falling, her inability to have safety awareness due to her disease processes, her dementia and inability to control her impulsive behavior associated with her disease and illness, yet they took no precautionary measures to prevent her from falling out of the bed. Further, it was clear that the nursing staff was supposed to closely supervise, monitor and check on her due to her high risk of falling, and was supposed to place her in a low bed with mats, utilize a bed alarm and implement other interventions to prevent falls and injuries.

The Glen filed an exception of prematurity regarding the tort claim filed in district court, alleging that the claims fell under the MMA. The plaintiff argued that some of its claims fell outside the MMA, particularly that the action of the nursing staff in raising the bed was intentional and custodial, and therefore fell outside the MMA.

This court considered the factors set forth in Coleman v. Deno , 01-1517 (La. 1/25/02), 813 So.2d 303, for determining whether a negligent act by a qualified health care provider is covered by the MMA:

1) whether the particular wrong is treatment related or caused by a dereliction of professional skill;
2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
3) whether the pertinent act or omission involved assessment of the patient's condition;
4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
5) whether the injury would have occurred if the patient had not sought treatment; and
6) whether the tort alleged was intentional.

We also reviewed several cases involving falls from beds and wheelchairs and concluded that such cases require close attention to whether the patient's condition simply required routine custodial care or total round-the-clock care. See e.g., Hamilton v. Baton Rouge Health Care , 09-0849 (La. App. 1 Cir. 12/8/10), 52 So.3d 330. We concluded that the claim regarding the failure to position the bed (so that the plaintiff could not injure herself) constituted a negligent rendering of care as well as a failure to assess the plaintiff's condition, and this was not merely a custodial act claim.

Similarly, in this instance, Ms. Lyons' allegations of the defendant's negligence involved more than simple negligence in performing a routine custodial act. Similar to the plaintiff's propensity to fall in White, supra , the director and staff were well aware that Ms. Lyons had a propensity to wander, get lost and forget where she lived. They also knew that on the day of the accident she was fixated on finding her car that she did not own. Despite knowing these facts, and being aware that Ms. Lyons suffered from severe dementia, (and had already been found that day walking in the parking lot of the facility searching for her car), the defendant failed to assess what was required to secure her safety given her medical condition, and it merely put her on routine custodial bed checks.

We therefore conclude that the alleged negligence of Christus Health Central in this case involves "an act or treatment that should have been performed or furnished, or which should have been performed or furnished," by the defendant for, to or on behalf of Ms. Lyons.

CONCLUSION

Accordingly, for the reasons set forth herein, the judgment of the district court granting Christus Health Central Louisiana's summary judgment is reversed. We render judgment granting the cross-motion for summary judgment. We remand the case to district court for further proceedings in accordance with this judgment. Costs are to be paid by Christus Health Central.

REVERSED AND RENDERED; REMANDED.

      La. R.S. 40:1299.41, redesignated as La. R.S. 40:1231.1 to 40:1231.10. At the time of the alleged malpractice, the medical malpractice statutes were designated as La. R.S. 40:1299.41 to 40:1299.49. By H.C.R. No. 84 of the 2015 Regular Session, the provisions were redesignated as La. R.S. 40:1231.1 to 40:1231.10. The parties have, for the most part, elected to use the new numerical designations in their more recent arguments.

      Plaintiff's counsel states that he also received a letter from the PCF stating that Christus Health Central Louisiana is a QHCP.

      At times it was argued that the plaintiff sued the wrong defendant, and then argued that Christus Health Central Louisiana d/b/a Christus St. Joseph's Home is, in fact, the proper defendant.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    Terry LaCarl JAMES, Plaintiff-Appellant v. ELDORADO CASINO SHREVEPORT JOINT VENTURE, Eldorado Shreveport #1, LLC, and Eldorado Shreveport #2, LLC, Defendants-Appellees
    No. 51,707-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 15, 2017
    TERRY L. JAMES, Pro Se
    BLANCHARD, WALKER, O'QUIN & ROBERTS, APLC By: W. Michael Adams, Shreveport, Jerry Edwards, Brian C. Flanagan, Counsel for Appellees
    Before PITMAN, STONE, and BLEICH (Pro Tempore ), JJ.
   PITMAN, J.

Plaintiff Terry LaCarl James appeals the judgment of the trial court which sustained the exception of no cause of action filed by Defendants Eldorado Casino Shreveport Joint Venture, Eldorado Shreveport # 1, LLC, and Eldorado Shreveport # 2, LLC (collectively, "the Eldorado"), and which dismissed Plaintiff's suit. For the following reasons, we affirm the judgment of the trial court.

FACTS

On February 22, 2015, Plaintiff, a resident of Minden, Louisiana, parked his car in the garage across the street from the Eldorado hotel in Shreveport and then checked into the hotel for a two-night stay. He came to Shreveport to seek refuge from an ice storm which had been predicted for the area. He gambled in the Eldorado casino the first night and spent the night in his room. The next morning, he allegedly went back to the casino to gamble; however, he encountered a waitress who was rude to him. He lodged a complaint with the waitress's supervisor and decided to return to his room. A hotel security officer met him and accused him of "picking up people's player's cards" and of lying to the security officer about being in the casino earlier that day. The security officer gave Plaintiff three choices: (1) he could leave the casino voluntarily; (2) he could be forcibly evicted from the property; or (3) he could be arrested and thrown in jail. Plaintiff chose to leave the hotel voluntarily.

Although the State Police warned people not to travel on an icy and dangerous I-20 unless absolutely necessary, Plaintiff left the Eldorado hotel, drove his car out of the garage and began traveling on I-20 heading east toward Minden. He lost control of his car and ran off the Interstate near mile marker 34 in Bossier Parish and crashed his car into the steel cable barrier on the left side of the Interstate in the median.

Plaintiff filed suit against the Eldorado, claiming that his accident on the Interstate and the resulting damages were caused by the Eldorado employees. His petition alleged that the Eldorado was liable to him since it intentionally forced him to leave the property when weather and road conditions were very dangerous, it failed to exercise reasonable care to protect him from exposure to the dangerous road conditions, it intentionally exposed him to those hazardous road conditions and it intentionally breached its contract with him, since he checked into the hotel for a two-night stay for the express purpose of avoiding travel in the winter weather.

The Eldorado filed a peremptory exception of no cause of action and argued that it had no duty to protect Plaintiff from the harm alleged in the petition. It asserted that it had no duty to protect a person from any danger he encountered after leaving the premises of the hotel. Because there was no duty to protect him from dangerous weather conditions on a state highway, or to protect him from his own decision to drive despite the inclement weather, it sought dismissal of Plaintiff's suit through the exception of no cause of action.

The trial court sustained the exception, dismissing Plaintiff's suit against the Eldorado. Plaintiff appeals the decision of the trial court.

DISCUSSION

Plaintiff argues that the trial court erred in finding the Eldorado had no duty to him when it caused him to leave the premises in an ice storm. He asserts that the Eldorado had a duty to provide him with a safe haven from the ice storm since his main reason for traveling to Shreveport was to spend the night at the hotel. He claims that, but for his being told to leave the hotel, he would not have ventured onto the icy highway and would not have been involved in the accident. For these reasons, he claims the trial court erred in sustaining the exception of no cause of action.

The Eldorado argues that the trial court correctly sustained its exception of no cause of action since the allegations of the petition show that the law does not provide a remedy to anyone under the facts alleged. It contends that it had no duty to Plaintiff because it is not liable for risks not located on its premises, and it had no duty to ensure that Plaintiff maintained control of his vehicle. When there is no duty to protect Plaintiff from the harm alleged, the petition fails to state a cause of action upon which relief may be granted.

In Century Ready Mix Corp. v. Boyte , 42,634 (La. App. 2 Cir. 10/24/07), 968 So.2d 893, this court stated:

A "cause of action," when used in the context of the peremptory exception of no cause of action, is the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc. , 616 So.2d 1234 (La.1993). A peremptory exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. Birdsong v. Hirsch Memorial Coliseum , 42,316 (La. App. 2d Cir. 8/22/07), 963 So.2d 1095 ; Hayes v. Gallagher Bassett Services, Inc. , 41,579 (La. App. 2d Cir. 12/13/06), 945 So.2d 911, writ denied , 07-0085 (La. 3/30/07), 953 So.2d 73. The exception is triable on the face of the petition, each well-pled fact of which must be accepted as true. There is no requirement that the court accept as true any conclusions of law alleged in the petition. No evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 931 ; Wright v. Louisiana Power and Light , 06-1181 (La. 3/9/07), 951 So.2d 1058 ; Birdsong, supra . The burden of demonstrating that the petition states a cause of action is upon the mover. Wright, supra . Appellate courts conduct a de novo review of a district court's ruling sustaining an exception of no cause of action, because the exception raises a question of law and the district court's decision should be based only on the sufficiency of the petition. The pertinent question is whether, in the light most favorable to the plaintiff and with every doubt resolved in plaintiff's behalf, the petition states any valid cause of action for relief. Wright, supra . Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Badeaux v. Southwest Computer Bureau, Inc ., 05-0612 (La. 3/17/06), 929 So.2d 1211.

The allegations of Plaintiff's petition imply liability should be imposed upon the Eldorado based on general principles found in La. C.C. arts. 2315 and 2317. La. C.C. art. 2315 states that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. La. C.C. art. 2317 states that persons are responsible not only for their own acts, but for those acts of other persons for whom they are responsible, as well as the things over which a person has custody, which may cause harm to others. In regard to damage caused by ruin, vice or defect in things, La. C.C. art. 2317.1 states the owner or custodian of a thing is answerable for damages occasioned by its ruin, vice or defect only upon a showing that he knew, or in the exercise of reasonable care, should have known of those defects which caused damage, and yet he failed to exercise reasonable care.

A threshold issue in any negligence action under the duty/risk analysis is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. Boyte , supra .

The duty/risk analysis consists of the following four-prong inquiry: (1) Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred? (2) Did the defendant(s) owe a duty to the plaintiff? (3) Was the duty breached? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Rando v. Anco Insulations Inc ., 08-1163 (La. 5/22/09), 16 So.3d 1065, citing Mathieu v. Imperial Toy Corp ., 94-0952 (La. 11/30/94), 646 So.2d 318. Under a duty/risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. As such, in order for liability to attach under a duty/risk analysis, a plaintiff must prove five separate elements, namely the duty element, the breach of duty element, the cause-in-fact element, the scope-of-liability or scope-of-protection element and the damages element. Rando , supra .

Regardless if stated in terms of proximate cause, legal cause or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. Id. The scope of protection inquiry asks whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner. Id.

A hotel owes a duty to its patrons to exercise reasonable and ordinary care, including maintaining the premises in a reasonably safe and suitable condition. Spencer v. Red River Lodging , 37,930 (La. App. 2 Cir. 2/5/04), 865 So.2d 337. Although the keepers of inns, lodging houses or restaurants are not the insurers of the safety of their guests, they are under an obligation to exercise, at least, ordinary or reasonable care to keep them from injury. Id.

The duty imposed on a business to provide a safe place for its customers applies to the premises, but not to adjacent property unless the business created the hazard which causes the injury. George v. Western Auto Supply Co. , 527 So.2d 428 (La. App. 4 Cir. 1988).

Plaintiff's petition contains no allegations that the injury he suffered was caused by the Eldorado's failure to exercise reasonable care in maintaining the premises in a reasonably safe and suitable condition. In fact, any damage sustained by Plaintiff occurred off the premises of the casino and hotel and on the state highway when he lost control of his vehicle and left the roadway. Once Plaintiff left the Eldorado casino and hotel, it had no duty to protect him from himself or from his impulse to drive under unreasonably dangerous and icy conditions. It was Plaintiff's responsibility to maintain control of his own motor vehicle, and it was his decision to undertake the risky drive home.

For the foregoing reasons, we find that the Eldorado did not owe Plaintiff a duty to protect him against the harm alleged in his petition, and the trial court correctly sustained the exception of no cause of action and found that the law does not provide a remedy to anyone under the facts alleged in Plaintiff's petition. Therefore, this assignment of error is without merit.

CONCLUSION

The judgment of the trial court, sustaining the exception of no cause of action in favor of Defendants, Eldorado Casino Shreveport Joint Venture, Eldorado Shreveport # 1, LLC, and Eldorado Shreveport #2, LLC, and against Plaintiff, Terry LaCarl James, dismissing the suit against them, is hereby affirmed. Costs of the appeal are assessed to Plaintiff Terry LaCarl James.

AFFIRMED.


text:
    Kim Ruth Triplett WEST, Plaintiff-Appellant v. Dennis Roy WEST, Defendant-Appellee
    No. 51,692-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 15, 2017
    CODY W. RIALS, APLC, Counsel for Appellant
    GOFF AND GOFF ATTORNEYS By: Shelley A. Goff, Ruston, Counsel for Appellee
    Before MOORE, PITMAN, and GARRETT, JJ.
   PITMAN, J.

Plaintiff-Appellant Kim Ruth Triplett West appeals the trial court's judgment in favor of Defendant-Appellee Dennis Roy West. For the following reasons, we affirm.

FACTS

On March 13, 2015, Ms. West filed a petition for divorce pursuant to La. C.C. art. 102 and partition of community property. The parties married on August 22, 1980, and have one adult child. Alleging that she suffers from retinitis pigmentosa, a hereditary degenerative eye disease, Ms. West requested interim spousal support and final periodic support. She stated that she was free from fault in the dissolution of the marriage and that Mr. West has the ability to pay the requested support.

On May 6, 2015, Mr. West filed an answer and reconventional demand. He stated that Ms. West holds a degree in accounting, is a licensed certified public accountant and is capable of self-support. He alleged that Ms. West's eye condition has not and will not in the near future interfere with her ability to be gainfully employed and self-supporting. He contended that she has or will have substantial separate property to support herself and that she cannot show that she is in need of support. On December 14, 2015, the trial court signed a judgment of divorce.

A hearing on the issue of spousal support was held on August 26, 2016. Ms. West testified that she and Mr. West were married for 35 years and have one adult son. She submitted an affidavit of her income and expenses, which reflected that she had no income. She explained that her income previously came from DKK, a Subchapter S corporation that she established with Mr. West, that engages in government defense contracts involving systems engineering. She stated that she owns 100 percent of the stock in DKK and that she and Mr. West are its only employees. She further stated that her role in the company is administrative work and accounting, while Mr. West secures the contracts. She noted that DKK's business has declined and that without DKK she has no income. She also noted that because of the uncertainty of DKK's future due to the community property partition, she sought other employment by sending out resumes and attending interviews, but had not been offered a job. She admitted that it would make sense for Mr. West to get DKK in the partition because of his expertise in obtaining contracts. Ms. West testified that she is 56 years old and was diagnosed with retinitis pigmentosa when she was 21 years old. This condition is a degeneration of the rods and cones in the retina, there is no treatment for it and it ultimately leads to blindness. She stated that she has been instructed by a physician not to drive. She currently lives with her father, who provides her transportation. Her condition affects her on a day-to-day basis in that she lacks independence, bumps into things, does not see things, has problems reading, cannot drive and has difficulty in crowds. Her condition also affects her work in that she never knows what days she will be able to work, she suffers eye fatigue from spending too much time on the computer and she struggles to read certain numbers. She noted that she also cannot see in the dark and that her eyes strain to adjust to different lighting. She testified about the expenses listed in her affidavit. She stated that she currently lives rent-free with her father and that the house she plans to move into (the "Jonesboro house") is paid for and unencumbered. She noted monthly expenses for lawn care, a maid, food and household supplies, clothing, maintenance, gas and oil, utilities, laundry, personal grooming, health insurance, prescriptions, over-the-counter medication, routine medical exams, new prescription glasses, life insurance, gifts to others, entertainment, hobbies and charitable contributions. She stated that her father gifted her a car, so she does not have a car note. She also listed an expense of $1,200 per month to hire a driver. She stated that she pays utilities on the Jonesboro house, but does not pay utilities at her father's house. She also testified about her standard of living during the marriage. She stated that when DKK was doing well, Mr. West allowed her and their son to buy whatever they wanted. She stated that they lived a comfortable lifestyle and that they hired people to do chores rather than do them themselves. She noted that their community property partition is still pending and that the largest cash assets are the 401(k)s.

On cross-examination, Ms. West discussed her duties at DKK and that she earned $60,000 per year for 2013, 2014 and 2015. She stated that she has lived rent-free with her father on and off since 2012 and that he pays for utilities, but she pays for her groceries. She admitted that she could rent out the Jonesboro house, which would remove expenses like utilities and lawn care, but explained that she did not intend to always live with her father. She discussed the difference between the amount of charitable donations listed on her tax returns (e.g., $2,400 in 2014) and the $600 per month she listed on her affidavit, noting that she sometimes paid in cash and did not write off every contribution.

The parties stipulated to the submission of the deposition of Dr. Gary Avallone, an optometrist, who testified that Ms. West has been his patient since 2002. He stated that she has been diagnosed with retinitis pigmentosa, an inherited degenerative disease wherein the retina gradually ceases to function in affected areas. He stated that at her examination in March 2015, her visual acuity was measured at 20/40 in each eye, but that the visual fields were very constricted, exhibiting 10 to 15 degrees of complete visual field in each eye. The typical visual field will range from 70 degrees to the nasal side to 90 degrees on the temporal side. He testified that if an object is not directly in front of Ms. West, she will have great difficulty seeing it. He further testified that her future experiences with this condition will vary. Most patients with retinitis pigmentosa completely lose their sight, but some maintain a limited visual field. Ms. West may need some help to do general day-to-day tasks and may need low vision aids. He stated that she should not be driving. On cross-examination, he testified that Ms. West can work depending on the types of tasks required. There are aids available, specifically magnification, to assist her in using a computer.

On cross-examination, Mr. West testified that he now lives in Arizona and is married to Debbie Ocasio. He stated that he and Ms. West incorporated DKK in 2000 and that he was responsible for obtaining contracts for the business. He discussed his employment with Syndetics and that he deposited his payments from Syndetics into a separate account. He noted that he formed an LLC after his divorce from Ms. West. He discussed his income and expense affidavit, stating that he lives in a house owned by Ms. Ocasio and that he pays half of the monthly mortgage. He has paid no spousal support to Ms. West, but opined that she has been "very liberal" with the amount of money she spends. He further stated that they lived a comfortable lifestyle from 2000 until their separation. He testified that he is a pilot and that DKK owns an airplane. On direct examination, he indicated that his monthly income is $9,421, which he calculated by averaging his monthly income from the preceding 19 months.

On November 4, 2016, the trial court filed its judgment and reasons for judgment. It detailed Ms. West's income and concluded that her income will remain at $5,000 per month for 2016. It considered her eye condition and determined that it does not currently preclude her ability to earn a living working for DKK. It noted that the total loss of eyesight is a possibility for Ms. West, but was presently only conjecture. It also considered her needs as set forth in her affidavit of income and expenses. It found that her listed housing and utility expenses do not constitute living expenses to be considered for spousal support because she lives with her father. It further found that her transportation expenses should not be considered because her father drives her and the driving service expense she listed is too speculative. It determined that $600 per month, rather than $800, is a more reasonable amount for entertainment and gifts to others based on the parties' pre-divorce lifestyle and the evidence presented at trial. It found that $300 per month, rather than $600, was a more reasonable amount for charitable giving based on the contributions documented in her tax returns for 2012, 2013 and 2014. It further found other listed expenses to be reasonable and determined that her monthly expenses total $2,560. It also considered Ms. West's standard of living, noting that since 2012, she lived with her father out of choice, not necessity. It stated that she enjoyed a very modest lifestyle while living with her father as he provides a home, utilities and transportation. Although testimony was provided that the Wests owned an airplane, an airplane hangar and other items that suggest an expensive lifestyle, there was no evidence that this was the standard of living Ms. West chose while living with her father. It noted that she had access to community funds and could have lived a more expensive lifestyle had she so chosen. It determined that Ms. West is not entitled to interim spousal support because her income exceeds her expenses without any effect on the lifestyle she enjoyed since 2012 and that she is not entitled to final periodic support at this time. It stated that she has an income from DKK of $5,000 per month. It noted that its decision does not preclude an award of final periodic support at a later date if Ms. West's circumstances change because of DKK's inability to continue compensating her at a level that would cover basic maintenance and necessities of life; because of further deterioration of her eyesight that renders her unable to perform her duties for DKK or some other employer; or because of a decision to move into a house of her own where she would incur housing, utility, transportation and other expenses currently paid for by her father.

Ms. West appeals the judgment of the trial court.

DISCUSSION

Interim Spousal Support

In her first assignment of error, Ms. West argues that the trial court erred in denying her claim for interim spousal support. She contends that she established her need for interim spousal support and Mr. West's ability to pay it. She notes that even though she currently lives with her father, she should be entitled to the very modest housing expense needed to live in the Jonesboro house. She states that even though her father currently serves as her driver, he is elderly and cannot drive well. Although the driving service is not a current expense, it is a necessary one. She notes that the trial court reduced her entertainment and gift expenses and her charitable giving. She contends that these estimated expenses were reasonable given the lifestyle enjoyed by the parties during the marriage. She states that the trial court did not reach the issue of Mr. West's ability to pay interim spousal support. She contends that he is able to afford support in the amount of $3,000 per month and that he has historically made several hundred thousand dollars per year working with Syndetics. She also states that the parties enjoyed a very high standard of living during their marriage and that the trial court erred when it only considered her standard of living only since 2012.

Mr. West argues that the trial court was reasonable in denying Ms. West's request for interim spousal support. He contends that Ms. West did not meet her burden of proving that she lacks sufficient income, or the ability to earn a sufficient income, to maintain the standard of living that she enjoyed prior to the filing of divorce. He states that because she did not meet this burden, his ability to pay is irrelevant. He contends that the trial court's findings that Ms. West's income is $5,000 per month and that her eye condition does not preclude her ability to earn a living are reasonable based on the record. He states that there is no evidence that Ms. West cannot work-to the contrary, there is evidence that she can and does work. He argues that the trial court's finding regarding Ms. West's pre-filing standard of living was reasonable based on the record. Ms. West was voluntarily living with her father with minimal expenses and there is no evidence of her lifestyle prior to living with her father.

The trial court is vested with much discretion in determining an award of interim spousal support. Kirkpatrick v. Kirkpatrick , 41,851 (La. App. 2 Cir. 1/24/07), 948 So.2d 390. Its determination will not be disturbed absent a clear abuse of discretion. Id.

In a proceeding for divorce or thereafter, the court may award interim periodic support to a party. La. C.C. art. 111. Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, any interim allowance or final child support obligation and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce. La. C.C. art. 113(A).

In Hitchens v. Hitchens , 38,339 (La. App. 2 Cir. 5/12/04), 873 So.2d 882, this court explained:

The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of time of adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. Defatta v. Defatta , 32,636, 32,637 (La. App. 2d Cir. 2/1/00), 750 So.2d 503 ; Reeves v. Reeves , 36,259 (La. App. 2d Cir. 7/24/02), 823 So.2d 1023. A spouse's right to claim interim periodic support is based on the statutorily-imposed duty of the spouses to support each other during their marriage. McAlpine v. McAlpine , 94-1594 (La. 09/05/96), 679 So.2d 85.
The needs of the wife have been defined as the total amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation, limited only by the husband's ability to pay. Whatley v. Whatley , 430 So.2d 129 (La. App. 2d Cir. 1983) ; Braswell v. Braswell , 494 So.2d 1333 (La. App. 2d Cir. 1986). In order to demonstrate the need for interim periodic spousal support, the claimant has the burden of proving that he or she lacks sufficient income, or the ability to earn a sufficient income, to maintain the standard of living that he or she enjoyed during the parties' marriage. Clark v. Clark , 34,314 (La. App. 2d Cir. 11/1/00), 779 So.2d 822 ; Thomey v. Thomey , 33,000 (La. App. 2d Cir. 4/7/00), 756 So.2d 698 ; Hollowell v. Hollowell , 437 So.2d 908 (La. App. 2d Cir.1983).

Once the claimant spouse has established need, the court must examine the ability of the payor spouse to provide support. Brown v. Brown , 44,989 (La. App. 2 Cir. 1/27/10), 31 So.3d 532, citing Loftice v. Loftice , 07-1741 (La. App. 1 Cir. 3/26/08), 985 So.2d 204.

The trial court did not abuse its discretion by determining that Ms. West is not entitled to interim spousal support. She has not met her burden of establishing her need of interim spousal support. The evidence presented at trial shows that she is employed at DKK and earns an annual salary of $60,000, which demonstrates that she earns and is able to earn a sufficient income to maintain the standard of living she enjoyed during the marriage. The testimony of Dr. Avallone confirmed her current ability to work. As evidence of the standard of living during the marriage, she detailed her lifestyle since 2012, including that she lives with her father, that she does not pay rent or utilities and that her father acts as her driver. She did not provide evidence of her pre-2012 lifestyle other than testifying that it was comfortable and that the family spent freely.

Because Ms. West failed to prove her need for support, we will not examine Mr. West's ability to provide support.

Accordingly, this assignment of error lacks merit.

Final Periodic Support

In her second assignment of error, Ms. West argues that the trial court erred in denying her claim for final periodic support. She contends that she was not at fault, that she is in need of final periodic support and that Mr. West has the ability to pay such support. She further contends that the trial court erred when allocating $5,000 per month income to her because there is no scenario wherein she will receive income from DKK in the future. She stated that DKK cannot operate with both her and Mr. West working for the company. She also states that her eye condition diminishes her earning capacity.

Mr. West argues that the trial court was reasonable in denying Ms. West's request for final periodic support and correctly determined that her monthly income is sufficient to meet her proven monthly needs. He notes that the parties have significant assets that Ms. West will be entitled to through the partition.

The trial court has great discretion in awarding final periodic support to a party not at fault. Brown v. Brown , 50,833 (La. App. 2 Cir. 8/10/16), 200 So.3d 887. Its determination will not be disturbed absent a clear abuse of discretion. Richards v. Richards , 49,260 (La. App. 2 Cir. 8/13/14), 147 So.3d 800.

In a proceeding for divorce or thereafter, the court may award final periodic support to a party who is in need of support, based on the needs of that party and the ability of the other party to pay, and who is free from fault prior to the filing of a proceeding to terminate the marriage. La. C.C. art. 111 ; La. C.C. art. 112(A). The court shall consider all relevant factors in determining the amount and duration of final support. La. C.C. art. 112(C).

A claimant spouse does not need to prove necessitous circumstances. Anderson v. Anderson , 48,027 (La. App. 2 Cir. 5/15/13), 117 So.3d 208, citing Jones v. Jones , 35,502 (La. App. 2 Cir. 12/5/01), 804 So.2d 161. Final periodic spousal support is limited to an amount sufficient for maintenance, as opposed to continuing an accustomed style of living. Richards v. Richards , supra . Maintenance includes the basic necessities of life, such as food, shelter, clothing, transportation, medical and drug expenses, utilities, household maintenance and income tax liability generated by spousal support payments. Id. A spouse who is working full-time for a respectable salary and has no unusual expenses or obligations is not in such need as to justify an award of final periodic support. Anderson v. Anderson , supra , citing Carr v. Carr , 33,167 (La. App. 2 Cir. 4/5/00), 756 So.2d 639.

The trial court did not abuse its discretion in determining that Ms. West is not entitled to final periodic support. She has not met her burden of establishing her need of this support. The evidence presented by her at trial demonstrates that she is currently working and is able to work. Her annual salary of $60,000 is sufficient to support her needs.

Although Ms. West contends that she needs final periodic support because of her eye condition, this condition had not created a need for support at the time of trial. At the time of trial, she was employed and employable. Dr. Avallone noted aids available to her so that she could continue working. He also testified generally about retinitis pigmentosa. He stated that most, but not all, persons with the condition will completely lose their sight. At the time of trial, Ms. West had a limited visual field, but still maintains some sight. Although she might lose her sight in the future, an award of final periodic support is not made based on potential future needs. It is uncertain when or if Ms. West will become unable to pursue her employment or when or if she will have to employ a driver should her eye condition continue to deteriorate. Therefore, the trial court did not abuse its discretion when it determined that, at the time of trial, Ms. West had not proved a need for final periodic support.

Accordingly, this assignment of error lacks merit.

Modification of Award

In her third assignment of error, Ms. West argues that the trial court erred in indicating in its judgment that its decision to deny final periodic support did not preclude an award of final periodic support at a later date should her circumstances change. She contends that La. C.C. art. 114 allows for modification or termination of an award of periodic support based on a change of circumstances. She states that no award was made in this case, so it is unlikely that she could make an argument pursuant to La. C.C. art. 114 for a future award based on a change in circumstances.

Mr. West also argues that the trial court erred in inviting Ms. West to apply for modification of its denial of spousal support at a later time.

La. C.C. art. 114 states:

An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. The subsequent remarriage of the obligor spouse shall not constitute a change of circumstance.

Although La. C.C. art. 114 refers specifically to the modification of "[a]n award of periodic support," this wording does not preclude a person whose award of final periodic support was terminated from seeking reinstatement of the award if his or her circumstances change. In Richards v. Richards , supra , the trial court granted Ms. Richards an award of final periodic support, directed that this support would end if she received Social Security disability benefits and stipulated that any party could seek amendment in the future if there was a change of circumstances. Ten years after the award of periodic spousal support, Ms. Richards's final periodic support award was terminated because she began receiving Social Security disability benefits. Two years after this termination, she filed a rule to modify the previous spousal support judgment and sought reinstatement of spousal support. She stated that her need for support was based on her inability to work due to disability and by the loss of monthly child support payments. The trial court denied her request for reinstatement. This court on appeal determined that Ms. Richards proved need and a material change in circumstances and that Mr. Richards had the ability to pay final periodic support. Therefore, this court determined that the trial court abused its discretion in denying Ms. Richards's request for reinstatement of final periodic support and ordered judgment in favor of Ms. Richards awarding her monthly final periodic support.

Similarly, the wording of La. C.C. art. 114 does not preclude a person who unsuccessfully sought final periodic support from seeking a modification of this denial if his or her circumstances change. As in Richards v. Richards , supra , in the case sub judice , the trial court hypothesized events that could qualify as material changes in circumstances when it determined that, at the time of the trial, Ms. West had not proven she was in need of final periodic support. Therefore, if Ms. West's circumstances materially change in the future, she may file a motion to modify the November 4, 2016 judgment of the trial court.

Further, the doctrine of res judicata does not prevent Ms. West from seeking final periodic support in the future. A judgment does not bar another action by the plaintiff when the judgment reserved the right of the plaintiff to bring another action. La. R.S. 13:4232(A)(3). See also Politz v. Politz , 44,885 (La. App. 2 Cir. 1/27/10), 31 So.3d 552. In its November 4, 2016 judgment, the trial court reserved Ms. West's right to bring another action. It stated that it would not award final periodic support "at this time," but "[t]hat this decision would not preclude an award of final spousal support at a later date if [Ms. West's] circumstances should change."

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of Defendant-Appellee Dennis Roy West and against Plaintiff-Appellant Kim Ruth Triplett West. Costs of appeal are assessed to Plaintiff-Appellant Kim Ruth Triplett West.

AFFIRMED.


author: BLEICH, J. (Pro Tempore )

text:
    STATE of Louisiana, Appellee v. Jerome HUDSON, Appellant
    No. 51,689-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 15, 2017
    LOUISIANA APPELLATE PROJECT By: Chad Ikerd, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, JOHN MICHAEL LAWRENCE, MELANIE FRYE MCCULLOUGH, Assistant District Attorneys, COLIN CLARK, Assistant Attorney General, Counsel for Appellee
    Before PITMAN, STONE, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

This criminal appeal arises from the 26th Judicial District Court, Webster Parish, Louisiana. In 1980, Jerome Hudson was convicted of second degree murder, a violation of La. R.S. 14:30.1, and sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. Hudson appealed directly to the Louisiana Supreme Court, which affirmed Hudson's conviction and sentence. On August 8, 2016, pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed. 2d 599 (2016), Hudson was resentenced to life imprisonment with benefit of parole. This appeal followed. For the following reasons, we affirm Hudson's conviction and amend the sentence.

FACTS

On October 18, 1979, Jerome Hudson, then a 16-year-old high school student, informed Mr. Garfield Lewis and his wife that they had been selected by a school club in Springhill to receive free groceries and gasoline as part of the club's project to assist older persons in the community. The next morning Hudson arrived at the Lewis home and left with Mr. Lewis in his car to pick up the prizes. Later that day, Hudson returned to the Lewis home alone, and told Mrs. Lewis he had left Mr. Lewis in town.

Mrs. Lewis went into town to look for her husband, but when she could not find him, reported his disappearance to the police. Mrs. Lewis told the police about the school project and that her husband was last seen driving off with Hudson. She also informed the police that she noticed Hudson was wearing different pants when he returned to her house later in the day.

During the police investigation, officers found a pair of pants in Hudson's room at his parents' home with a red stain, and also found a butcher knife in one of the pockets of those pants. During questioning, Hudson initially stated that Mr. Lewis had gotten into a fight with a man who had flagged him down while they were driving on the highway. Hudson led police to the alleged scene of the fight where they found Mr. Lewis' body. After further questioning, Hudson admitted to killing Mr. Lewis.

A bill of indictment was filed charging Hudson, who was under the age of 18 at the time, with second degree murder. Hudson entered a plea of not guilty. Motions to suppress physical evidence were denied by the trial court. A three-day trial commenced on April 22, 1980, after which the jury found Hudson guilty of second degree murder. The trial court sentenced Hudson to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. The Louisiana Supreme Court affirmed Hudson's conviction and sentence on appeal.

On February 28, 2013, Hudson filed a pro se motion to correct an illegal sentence pursuant to Miller, supra. Upon motion by the state, the trial court stayed the matter pending a ruling by the Louisiana Supreme Court regarding the issue of the retroactivity of Miller. In 2016, Hudson amended his motion to incorporate the ruling in Montgomery v. Louisiana, supra.

On August 8, 2016, the trial court resentenced Hudson to "life imprisonment with the benefit of parole." Hudson appealed his new sentence to the Louisiana Supreme Court, which remanded Hudson's appeal to the Second Circuit Court of Appeal on the basis that this Court now has appellate jurisdiction over Hudson's appeal.

DISCUSSION

Hudson urges three assignments of error on appeal, all of which involve the constitutionality of his sentence. Those assignments are addressed without distinction, and summarily dismissed as meritless.

The law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. Massey v. Louisiana Dep't of Pub. Safety & Corr. , 2013-2789 (La. 10/15/14), 149 So.3d 780, 783. For those offenders convicted of second degree murder in Louisiana, the law provides for a sentence of life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. La. R.S. 14:30.1(B).

In Miller , supra , the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. However, Miller did not establish a categorical prohibition against life imprisonment at hard labor without parole for juvenile homicide offenders; instead, it requires the sentencing court to consider an offender's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles convicted of a homicide offense. State v. Keith , 51,389 (La. App. 2 Cir. 06/21/17), 223 So.3d 767. The Miller decision drew a distinction between children whose crimes reflect transient immaturity and those whose crimes reflect irreparable corruption. Miller , supra , 567 U.S. at 479-80, 132 S.Ct. at 2469 ; State v. Calhoun , 51,337 (La. App. 2 Cir. 05/17/17), 222 So.3d 903.

The Louisiana Supreme Court in State v. Montgomery, supra , held that courts should utilize La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) when reviewing sentences for juvenile homicide defendants sentenced before Miller. Those statutes require a trial court to conduct a hearing before imposing a life without parole sentence on a juvenile homicide offender. State v. Keith, supra ; State v. Calhoun , supra.

Recently, the Louisiana Legislature amended La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4. See Acts 2017, No. 277, effective August 1, 2017. Louisiana C. Cr. P. art. 878.1(B)(1), now states, in pertinent part:

If an offender was indicted prior to August 1, 2017, for ... second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was not held pursuant to this Article prior to August 1, 2017 , to determine whether the offender's sentence should be imposed with or without parole eligibility, the district attorney may file a notice of intent to seek a sentence of life imprisonment without the possibility of parole ... If the district attorney fails to timely file the notice of intent, the offender shall be eligible for parole pursuant to R.S. 15:574.4(E) without the need of a judicial determination pursuant to the provisions of this Article.

(Emphasis supplied).

In one of his assignments of error, Hudson argues the trial court erred by not determining when he would become parole eligible. The legislature has now clearly statutorily defined parole eligibility for Hudson, and for similarly situated offenders. Louisiana R.S. 15:574.4(E) and (F) outline the qualifications for parole eligibility for first and second degree homicide offenders respectively. The trial court did not err in failing to address such eligibility, and this assignment of error has no merit.

In another assignment of error, Hudson argues his sentence violates the constitutional ex post facto clauses, which prohibit the legislature from passing a law that imposes punishment for an act that was not punishable at the time the act was committed, and imposes a more severe punishment. U.S. Const. art. I, § 10; La. Const. art. I, § 23 ; Weaver v. Graham , 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). To prove a state law violates the ex post facto protection, a defendant must show that the law subjects him to a more severe punishment or longer incarceration than he would previously have been subjected to, prior to the enactment of the statute. Massey , supra.

Hudson's life sentence does not violate the ex post facto clauses because the statute in question does not subject him to a harsher sentence or a longer period of incarceration. His sentence exposure for second degree murder after Miller , supra , is the same today as it was at the time of his offense-life imprisonment at hard labor without benefit of parole-except now, the less harsh sentence of life imprisonment at hard labor with eligibility for parole is available to homicide offenders who were under the age of 18 years at the time of the offense. The penalty for Hudson's offense-second degree murder-has not been redefined and his penalty exposure has not been increased, and thus his argument is meritless.

In his third assignment of error, Hudson argues that the trial court should have followed State v. Craig , 340 So.2d 191 (La. 1976), and resentenced him to the most serious penalty for the next lesser included offense in effect at the time he committed the offense. This proposition has been soundly rejected by the courts. State v. Shaffer , 2011-1756 (La. 11/23/11), 77 So.3d 939 ; State v. Leason , 2011-1757 (La. 11/23/11), 77 So.3d 933 ; State v. Keith, supra ; State v. Calhoun , supra ; State v. Williams , 15-0866 (La. App. 4 Cir. 01/20/16), 186 So.3d 242, writ denied , 2016-0332 (La. 03/31/17), 217 So.3d 358 ; State v. Graham , 14-1769 (La. App. 1 Cir. 04/24/15), 171 So.3d 272, writ denied , 2015-1028 (La. 04/08/16), 191 So.3d 583. Accordingly, Craig relief is inapplicable to Hudson's circumstances, the trial court did not err in following Montgomery , and this assignment of error is without merit.

Patent Error

Hudson was originally sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. Louisiana R.S. 14:30.1 is a mandatory felony, requiring any sentence to be served at hard labor. The trial court's resentencing of Hudson to "life imprisonment with benefit of parole" was too lenient as it failed to include the requirement that Hudson's life imprisonment be served at hard labor. The error is harmless and self-correcting; therefore, Hudson's life sentence is hereby amended to reflect that it is to be served at hard labor with the benefit of parole in accordance with La. R.S. 15:574.4(E). See State v. Foster , 50,535 (La. App. 2 Cir. 04/13/16), 194 So.3d 674, 679.

CONCLUSION

For the foregoing reasons, Jerome Hudson's conviction and sentence are affirmed. His life sentence is amended to reflect that it is to be served at hard labor.

AFFIRMED.

      A complete outline of the facts in this matter is found in the Louisiana Supreme Court opinion, State v. Hudson , 404 So.2d 460 (La. 1981).

      Prior to 1982, the Louisiana Supreme Court retained exclusive appellate jurisdiction to decide criminal appeals where the defendant had been convicted of a felony. See La. Const. art. V, § 5 (E).