author: PER CURIAM:

text:
    STATE EX REL. William T. CHISOLM v. STATE of Louisiana
    No. 16-KH-1894
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2. We attach hereto and make a part hereof the district court's written reasons denying relief.

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

Attachment


source: Caselaw Access Project

license: Public Domain

text:
    Carl E. GABRIEL v. DELTA AIRLINES, INC. and ACE American Insurance Company
    No. 2017-C-1990
    Supreme Court of Louisiana.
    January 29, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, OFFICE OF WORKERS' COMPENSATION, DISTRICT 7
    Writ denied.
   HUGHES, J., concurs with reasons.

Hughes, J. concurring.

Respondent in its opposition represents that the radiofrequency nerve ablation sought by applicant "has been authorized and paid for by Defendant/Appellee", essentially rendering this matter moot.


text:
    STATE EX REL. Kevin Paul BENOIT v. STATE of Louisiana
    No. 17-KH-0007
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

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

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

WEIMER, J., recused.


text:
    IN RE: George Martin GATES, IV
    NO. 2018-B-0083
    Supreme Court of Louisiana.
    February 23, 2018
    ORDER
   Considering the "Motion to Remand" filed by the Office of Disciplinary Counsel,

IT IS ORDERED that this matter be remanded to the disciplinary board for consolidation with the proceedings numbered 16-DB-088. After appropriate consideration of the consolidated matters, the board is directed to issue a single recommendation of discipline to this court encompassing all disciplinary matters involving respondent.

NEW ORLEANS, LOUISIANA, this _____ day of ___________________, 2018.


text:
    STATE EX REL. Preston NELSON v. STATE of Louisiana
    NO. 2016-KH-1725
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel of under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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


text:
    STATE EX REL. Dave WILKERSON Jr. v. STATE of Louisiana
    No. 2016-KH-1739
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030. In addition, relator's guilty pleas waived all non-jurisdictional defects in the proceedings leading to his convictions. State v. Crosby , 338 So.2d 584, 586 (La. 1976).

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


text:
    STATE EX REL. Ronald MARSHALL v. STATE of Louisiana
    No. 2016-KH-1835
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030.

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


text:
    STATE EX REL. Theoshamond NORMAN v. STATE of Louisiana
    No. 2016-KH-2040
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTIETH JUDICIAL DISTRICT COURT, PARISH OF EAST FELICIANA
   PER CURIAM:

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

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


text:
    STATE EX REL. Keith MILLER v. STATE of Louisiana
    No. 2016-KH-2044
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

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


text:
    STATE of Louisiana v. Kyle ALEXANDER
    No. 2016-KP-2096
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASSUMPTION
   PER CURIAM:

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

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


text:
    STATE EX REL. Jason MIZELL v. STATE of Louisiana
    No. 2016-KH-2169
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   PER CURIAM:

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

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

Attachment


text:
    STATE EX REL. Herbert FRANKLIN v. STATE of Louisiana
    No. 2016-KH-2190
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or that he entered his guilty plea involuntarily.

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

WEIMER, J., recused.


text:
    STATE EX REL. Jemario FREEMAN v. STATE of Louisiana
    No. 2016-KH-2213
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ;

State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

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


text:
    STATE EX REL. Robert S. KRODINGER v. STATE of Louisiana
    No. 2017-KH-0008
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. We attach hereto and make a part hereof the court of appeal's written reasons denying relief.

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


text:
    STATE EX REL. Deadra Ann JAMES v. STATE of Louisiana
    No. 2016-KH-2050
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Relator does not identify an illegal term in her sentence, and therefore, her filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and she fails to carry her burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030. The application is also repetitive. La.C.Cr.P. art. 930.4.

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


text:
    IN RE: Kenneth PLAISANCE
    NO. 2018-B-0023
    Supreme Court of Louisiana.
    February 23, 2018
    ORDER
   Considering the Judgment on the State's Rule for Contempt and to Make Past Due Support Executory, rendered in Debbie Barra Plaisance v. Kenneth Plaisance, Case Number: 2006-297, Civil District Court for the Parish of Orleans, Domestic Relations Section "2," on November 16, 2017,

IT IS ORDERED that Kenneth Michael Plaisance, Louisiana Bar Roll number 19738, be and he hereby is declared immediately ineligible to practice law in the State of Louisiana pursuant to Supreme Court Rule XIX, § 19.1, due to his failure to pay court-ordered child support. Said ineligibility shall remain in effect pending further orders of this court.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel institute formal charges, as appropriate, pursuant to Supreme Court Rule XIX, § 11.


text:
    IN RE: Juan C. LABADIE
    NO. 2018-B-0166
    Supreme Court of Louisiana.
    February 23, 2018
    ORDER
   Considering the "Motion to Remand" filed by the Office of Disciplinary Counsel,

IT IS ORDERED that this matter be remanded to the disciplinary board for consolidation with the proceedings numbered 17-DB-025. After appropriate consideration of the consolidated matters, the board is directed to issue a single recommendation of discipline to this court encompassing all disciplinary matters involving respondent.

JOHNSON, C.J., would not remand and would act on committee recommendation to disbar.


text:
    Zemond LIGHTFOOT v. Tim KEITH, Warden Winn Correctional Center, Winnfield, Louisiana
    No. 2016-KP-1389
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator's guilty plea waived all non-jurisdictional defects in the proceedings leading to his conviction. State v. Crosby , 338 So.2d 584, 586 (La. 1976). Relator also fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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


text:
    Billy MULKEY and Rochelle Mulkey (Individually and on Behalf of Their Minor Child, Shelly Mulkey), Skylar Mulkey and Justin Mulkey v. Burnell ALESSI, Sr., GEICO Casualty Company, State Farm Fire and Casualty Company and State Farm General Insurance Company, Aaron Alessi, Jared Alessi, ABC Insurance Company and Def Insurance Company
    No. 2017-CC-2161
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE 19TH JUDICIAL DISTRICT COURT FOR THE PARISH OF EAST BATON ROUGE
    Writ denied.
    CRICHTON, J., additionally concurs and assigns reasons:
   I would deny this writ application on the showing made.


text:
    STATE EX REL. Jeffery JONES v. STATE of Louisiana
    No. 2016-KH-1535
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND, JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Two of relator's claims are repetitive. La.C.Cr.P. art. 930.4(A). Moreover, his sentencing claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030.

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


text:
    Cynthia WALLER, et al. v. CHEVRON U.S.A., et al.
    No. 2017-CC-2164
    Supreme Court of Louisiana.
    February 23, 2018
    ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
    Writ application denied.
    Crichton, J., would grant and assigns reasons.
   I would grant this application to examine the issue of improper venue in Orleans Parish. See La. C.C.P. art. 73.


author: PENZATO, J.

text:
    Nanette ZIEGLER v. SLIDELL MEMORIAL HOSPITAL
    2017 CA 0671
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 02, 2017
    Terrance A. Prout, New Orleans, Louisiana, Counsel for Plaintiff/Appellant, Nanette Ziegler
    John J. Rabalais, Matthew D. Crumhorn, Covington, Louisiana, Counsel for Defendant/Appellee, Slidell Memorial Hospital
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

In this workers' compensation matter, claimant, Nanette Ziegler, appeals the granting of a motion for summary judgment in favor of Slidell Memorial Hospital. For the following reasons, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On June 3, 2015, Ms. Ziegler, a nursing assistant who was employed by Slidell Memorial Hospital (Employer) at the time, injured her left shoulder while repositioning a patient. On July 8, 2015, she underwent surgery performed by Dr. Jason Rolling for a rotator cuff tear caused by the incident. After surgery, Ms. Ziegler began a course of physical therapy. On September 8, 2015, a vocational rehabilitation assistant, Brienne Frey, was assigned to assist Ms. Zeigler in returning to work. On October 30, 2015, Ms. Zeigler and Ms. Frey met with Dr. Rolling for a rehabilitation conference. At that time, Dr. Rolling indicated that while Ms. Zeigler was not quite ready to go back to work, he thought it was reasonable, following a month of more intensive therapy, for her to return to a modified-duty job. A second rehabilitation conference was held on January 25, 2016, at which time Dr. Rolling indicated that Ms. Zeigler "may be suitable for some types of work."

Following the January 25, 2016 conference, Ms. Frey began conducting labor market surveys to locate potential jobs for Ms. Zeigler. Additionally, Ms. Frey scheduled a second medical opinion evaluation for Ms. Zeigler with Dr. Paul van Deventer in order to determine Ms. Zeigler's physical limitations. Dr. van Deventer evaluated Ms. Zeigler on May 3, 2016, and noted that she had reached her point of maximum medical improvement in regards to her work injury. Dr. van Deventer indicated that with appropriate accommodations, Ms. Zeigler should be able to return to a medium level job. Between February 29, 2016 and June 20, 2016, Ms. Frey identified potential jobs for Ms. Zeigler and sent the job descriptions to Dr. Rolling for his approval.

On July 1, 2016, Employer terminated Ms. Zeigler's wage benefits. On August 1, 2016, Ms. Zeigler filed a Disputed Claim for Compensation, indicating a bona-fide dispute as to the termination of her wage benefits. Employer filed a motion for summary judgment on December 9, 2016, seeking dismissal of Ms. Zeigler's claim for improper termination of indemnity benefits on the grounds that it had located for Ms. Zeigler several suitable employment positions, approved by her physician of choice, located in her geographical area, and available at the time of notice, that would pay her more than ninety percent (90%) of her pre-accident wages. A hearing was held on January 18, 2017, and the matter was taken under advisement. On January 27, 2017, the workers' compensation judge issued written reasons and rendered an order granting Employer's motion for partial summary judgment. On April 25, 2017, the workers' compensation judge signed an order designating the January 27, 2017 order as a final judgment, and dismissing Ms. Zeigler's claims. This appeal followed.

ASSIGNMENT OF ERROR

Ms. Zeigler asserts that the workers' compensation judge erred in granting the motion for summary judgment. In addition, she asserts that the workers' compensation judge erred in finding that she failed to carry her burden of proving a "sham" rehabilitation.

LAW AND DISCUSSION

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents 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. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. See La. Code Civ. Pro. art. 966A(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. Reynolds v. Bordelon , 2014-2371 (La. 6/30/15), 172 So.3d 607, 610.

A 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. Code Civ. Pro. art. 966F. The burden of proof is on the mover. See La. Code Civ. Pro. art. 966D(1). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Pro. art. 966D(1); Bryant v. Premium Food Concepts, Inc. , 2016-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 81-82, writ denied , 2017-0873 (La. 9/29/17), 227 So.3d 288, 2017 WL 4417510. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Id. at 82.

The purpose of Supplemental Earnings Benefits (SEBs) is to compensate the injured employee for the wage earning capacity she has lost as a result of her accident. Pinkins v. Cardinal Wholesale Supply, Inc. , 619 So.2d 52, 55 (La. 1993). An employee is entitled to receive SEBs if she sustains a work-related injury that results in her inability to earn 90% or more of her average pre-injury wage. See La. R.S. 23:1221 (3)(a) ; Poissenot v. St. Bernard Par. Sheriff's Office , 2009-2793 (La. 1/9/11), 56 So.3d 170, 174. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in her inability to earn that amount. If the employee satisfies that burden of proof, the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in her or the employer's community or reasonable geographic location. La. R.S. 23:1221(3) (c)(i) ; Poissenot , 56 So.3d at 174.

In this case, it is undisputed that Ms. Zeigler is unable to return to her pre-injury employment as a nursing assistant. Thus, the only question properly before this court is whether Employer carried its burden of proving that there are jobs available to Ms. Zeigler within her physical capabilities and geographic region that would enable her to earn 90% or more of her pre-injury wage. See Banks v. Indus. Roofing & Sheet Metal Works, Inc. , 96-2840 (La. 7/1/97), 696 So.2d 551, 556.

In Banks, the Louisiana Supreme Court instructed that an employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:

(1) the existence of a suitable job within claimant's physical capabilities and within claimant's or the employer's community or reasonable geographic region;
(2) the amount of wages that an employee with claimant's experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job's existence.

Banks , 696 So.2d at 557. The Louisiana Supreme Court further explained that "suitable job" means "a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant's age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education." Id.

At the hearing on the motion for summary judgment, Employer introduced into evidence Ms. Frey's deposition, along with labor market survey worksheets prepared by Ms. Frey, in support of its contention that it had located viable jobs sufficient to terminate Ms. Zeigler's SEBs under the law. Employer contended that Ms. Frey located ten different positions that were within or below the classification and limitation range defined by Dr. Rolling on December 1, 2015, and that Ms. Frey sought and secured Dr. Rolling's approval of all ten jobs, and provided notice of such approval to Ms. Zeigler directly. At the outset, in determining whether Employer discharged its burden of proving job availability at the time the SEBs were terminated on July 1, 2016, we note that the positions at Beacon Behavioral Health and American Insurance Brokers, Inc. were not approved by Dr. Rolling until August 3, 2016, and therefore cannot support the termination of benefits prior thereto. Ms. Frey testified that on March 7, 2016, positions at MedVet Medical & Cancer Center for Pets (MedVet) and PEC Premier Safety (PEC) were approved by Dr. Rolling. However, Dr. Rolling appears to have qualified his certification for the position at MedVet, and made no determination as to the position at PEC, noting that Ms. Zeigler "may have trouble with the lifting" required at those positions. Ms. Frey testified that on June 15, 2016, she advised Ms. Zeigler by e-mail that the MedVet position was still available. Ms. Frey also testified that she received Dr. Rolling's approval of the remaining six positions on June 20, 2016, at which time she determined that three were still available-those at Honda of Slidell, Rotolo Consultants, Inc., and Animal Health Clinic. Ms. Frey notified Ms. Zeigler through an e-mail dated June 20, 2016 of Dr. Rolling's approval of the jobs and the availability of same.

In opposition to the motion for summary judgment, Ms. Ziegler submitted her affidavit. She attested therein that she did not believe that the Animal Health Clinic job was suitable for her "as there was an issue with her ability to lift and handle animals and the job did not provide health care benefits." Moreover, it does not appear that the position at Animal Health Clinic, which paid $9.00 per hour for a forty-hour work week, enabled her to earn 90% or more of her pre-injury wage.

The average weekly wage for an injured employee who is paid an hourly wage is determined by applying La. R.S. 23:1021(13)(a), which provides, in pertinent part:

(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident....

The evidence indicates that Ms. Zeigler was considered a full time employee, and that she was paid on an hourly basis. Her regular rate per hour was $10.94; her overtime rate per hour was $16.44. She worked thirty-six hours per week for the four weeks prior to her injury. Her gross weekly wages were reported as follows: week # 1 $402.24; week # 2 $397.44; week # 3 $400.44; week # 4 $399.24. There was no evidence presented as to how her gross weekly wages were calculated or as to why they exceeded $10.94 per hour for thirty-six hours ($393.84). Further, there was no evidence introduced as to whether Ms. Zeigler was offered employment for forty hours or more but worked less than that at her own discretion, or whether she was entitled to the forty-hour presumption in calculating her average weekly wage. See, e.g., Guillory v. Bofinger's Tree Serv., 2006-0086 (La. App. 1 Cir. 11/3/06), 950 So.2d 682, 689.

In connection with the MedVet position, in addition to Dr. Rolling's qualified approval that Ms. Zeigler had "clearance to try" same, the position paid "at least $9.00 per hour," depending on experience, and thus it does not appear that this position enabled her to earn 90% of her pre-injury wage. With regard to the position at Honda of Slidell, Ms. Zeigler attested that she called to schedule an interview, but never received a return phone call. She further attested that she called Rotolo Consultants, Inc. several times and did not ever receive a return phone call. There is no evidence as to the manner in which Ms. Frey determined that the positions at Honda of Slidell and Rotolo Consultants, Inc. were available at the time she notified Ms. Zeigler of their existence. The credibility of a witness or affiant is a question of fact. In deciding a motion for summary judgment, the court must assume that all of the affiants are credible. Dimattia v. Jackson Nat. Life Ins. Co. , 2004-1936 (La. App. 1 Cir. 9/23/05), 923 So.2d 126, 130.

Based upon the entirety of the evidence, we find that genuine issues of material fact remain as to whether Employer properly terminated Ms. Zeigler's SEBs on July 1, 2016, precluding summary judgment. Accordingly, after de novo review, we find that Employer failed to meet its burden of proof on the motion for summary judgment. Having found that there is merit in Ms. Zeigler's first assignment of error, we pretermit a discussion of her second assignment of error.

CONCLUSION

The summary judgment granted by the Workers' Compensation Judge that dismissed Ms. Zeigler's claim is reversed and this matter is remanded for further proceedings. Costs of this appeal are assessed to Slidell Memorial Hospital.

REVERSED AND REMANDED.

      The basis upon which the workers' compensation judge identified Employer's motion as a motion for partial summary judgment in the January 27, 2017 order is unclear. Employer sought dismissal of Ms. Zeigler's entire claim, and the April 25, 2017 order dismissed the matter entirely and referenced the January 27, 2017 order as being having been rendered on "Summary Judgment Motion."
      Also included in the order were the workers' compensation judge's findings that: (1) claimant was not entitled to Supplemental Earnings Benefits (SEBs) as of July 28, 2016, which appears to be inconsistent with Ms. Zeigler's claim and the relief sought by Employer in the motion for summary judgment, both of which pled the date of July 1, 2016; and (2) that Ms. Zeigler did not carry her burden of proof that Employer provided a "sham" rehabilitation.

      We recognize that items attached to a deposition, which are properly identified and verified, may be considered on summary judgment when the deposition and its attachments are introduced. See Boland v. West Feliciana Parish Police Jury , 2003-1297 (La. App. 1 Cir. 6/25/04), 878 So.2d 808, 814, writ denied, 2004-2286 (La. 11/24/04), 888 So.2d 231.

      We note that the position at American Insurance Brokers, Inc. was considered viable by the workers' compensation judge.

      The workers' compensation judge considered two of the three unavailable positions, Brand Direct Health and Ampirical Solutions, LLC, as viable although by the time Ms. Frey received approval of the jobs by Dr. Rolling and advised Ms. Zeigler of same, the positions had been filled.

      The Animal Health Care clinic position was not considered as viable or appropriate by the workers' compensation judge.

      It appears the workers' compensation judge concluded that Ms. Zeigler was entitled to the forty-hour presumption, as the written reasons stated that in order for defendant to carry its burden of proof to terminate SEBs, it must produce the availability of jobs at forty hours per week that pay at least 90% of $10.94 per hour, which is $9,846 per hour.

      We note, however, that the issue of a "sham" rehabilitation was not the subject of the pending motion for summary judgment or a cross-motion for summary judgment by Ms. Zeigler, but was raised by way of argument. A 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. Code Civ. Pro. art. 966F.


author: CRAIN, J.

text:
    Carmen Mikelyn BURNS v. Robert Arthur BURNS, II
    NO. 2017 CU 0343
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 03, 2017
    Mark D. Plaisance Thibodaux, Louisiana, Attorney for Plaintiff/Appellant, Carmen Mikelyn (Burns) Hawkins
    Wyman E. Bankston, Livingston, Louisiana, Attorney for Defendant/Appellee, Robert Arthur Burns, II
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

In this child custody dispute, the mother, Carmen Hawkins (formerly Burns), appeals a judgment that modifies the parties' joint custody arrangement to name the father, Robert Arthur Burns II, as the domiciliary parent, and changes an equal-sharing physical custody schedule to one where the mother has physical custody only on alternating weekends and one night every other week. We reverse and remand.

FACTS

Carmen Hawkins and Robert Burns divorced in May 2014. They are the parents of two children, born September 28, 2004, and October 26, 2005. In connection with their divorce, Hawkins and Burns agreed to joint custody of the children, with Hawkins named the domiciliary parent. They further agreed to exercise physical custody in accordance with an alternating "two/two/three plan," alternating weekends, and further alternating Mondays and Tuesdays, and Wednesdays and Thursdays. A consent judgment was signed May 20, 2014, in accordance with the parties' agreement.

In June 2016, Burns filed a motion to modify custody, seeking to change the joint custody plan and have himself designated the domiciliary parent. He alleged the change was warranted because Hawkins moved with the children into her boyfriend's residence and often left the children "with random people while she attend[ed] events with her boyfriend." Burns asserted that it was in the children's best interest to reside primarily with him.

A hearing on the motion was held on September 29, 2016. Burns, his current wife, and Hawkins testified, and evidence was introduced. At the conclusion of the hearing, the trial court commented that the "two/two/three schedule [was not] in the benefit of-of anybody, not the children and not the parents." The trial court said a change of custody required a material change in circumstances, and noted the parties previously agreed that upon remarriage, either party could seek modification of custody or visitation in accordance with the law. The trial court found a modification warranted because Burns remarried, Hawkins was engaged, and "the parties both agree that the two/two/three schedule is not workable at this time." After weighing the factors in Louisiana Civil Code article 134, the trial court determined it was in the children's best interest that joint custody continue, but with Burns as the domiciliary parent and Hawkins exercising physical custody during the school year on alternating weekends and alternating Wednesday nights. A custody schedule for the summer months and holidays was created, and a judgment was signed on November 3, 2016.

Hawkins appeals, alleging the trial court committed legal error by applying the wrong burden of proof, requiring only a material change in circumstances rather than a material change in circumstances affecting the welfare of the children. She further contends Burns' remarriage is not a material change in circumstances affecting the welfare of the children and there is insufficient evidence to support a modification of the custody arrangement.

DISCUSSION

Where parties consent to a custodial arrangement and a consent decree or stipulated judgment is rendered, a party seeking to modify the custody plan is required to prove (1) a change in circumstances materially affecting the welfare of the children, and (2) the proposed modification is in the best interest of the children. Tinsley v. Tinsley , 16-0891 (La. App. 1 Cir. 1/18/17), 211 So.3d 405, 412. The trial court's determination regarding the required change in circumstances is based heavily on factual findings and cannot be set aside in the absence of manifest error or unless it is clearly wrong. See Tinsley, 211 So.3d at 415 ; Bonnecarrere v. Bonnecarrere, 09-1647 (La. App. 1 Cir. 4/14/10), 37 So.3d 1038, 1044, writ denied, 10-1639 (La. 8/11/10), 42 So.3d 381. However, where one or more legal errors interdict the fact-finding process, the appellate court must perform a de novo review of the record. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 735.

In support of her contention that the trial court committed legal error by applying an incorrect burden of proof, Hawkins points to oral reasons for judgment where the trial court concluded that a change in custody depended upon a finding "that a material change in circumstances has occurred," omitting "the 'material change in circumstances affecting the welfare of the child' burden required by this circuit." Hawkins cites Tinsley for the proposition that to change a consent custody decree, the proponent of the change must prove (1) a material change in circumstances, and (2) the change affects the welfare of the child. While Hawkins correctly states the applicable burden of proof, we disagree that the trial court's oral reasons reflect a misrepresentation of that burden.

In Tinsley, the proponent of a change in custody argued that the supreme court's decisions in Tracie F. v. Francisco D., 15-1812 (La. 3/15/16), 188 So.3d 231, 239-40, and Evans, 708 So.2d at 738, required him to prove only (1) a material change in circumstances since the previous custody decree, and (2) the modification is in the best interest of the child. He argued that there was no requirement that he prove the material change in circumstances affect on the child's welfare. Tinsley, 211 So.3d at 412. This court rejected that argument, pointing out that neither Trade F. nor Evans eliminated the requirement that a change in circumstances materially affect the child's welfare. The Tinsley court concluded that the requirement that a material change in circumstances materially affect the child's welfare was implicit in the supreme court's decisions. See Tinsley, 211 So.3d at 412-13.

The trial court's terminology when referring to the burden of proof, which mirrored the supreme court's terminology in Trade F., does not misrepresent the burden of proof. Rather, Tinsley supports our conclusion here that implicit in the trial court's statement of the burden of proof is the requirement that the change in circumstances also materially affect the welfare of the children. Hawkins' contention that the trial court committed legal error by applying the wrong burden of proof is without merit.

Next, we consider whether the trial court manifestly erred by finding a change in circumstances materially affecting the welfare of the children. To support its conclusion, the trial court found (1) the parties agreed the current custody agreement is not workable, and (2) Burns remarried, and Hawkins is engaged, circumstances allowing either party to seek modification of custody or visitation under the custody agreement.

The record does not establish that both parties agreed the current custody arrangement is not working. Burns testified he believed the schedule was "just too much just back and forth for [the children]," and the children needed stability. When asked how she felt about the current custody arrangement, Hawkins answered, "Quite frankly, I didn't know there was a problem with it until all of this came about." She explained:

I do think my children would do a little better from maybe a week at a time and not the split days. But we did the split days in the beginning, the Monday, Tuesday, Wednesday, Thursday, because [one of the children] had a very hard time ... [a]nd now they're very comfortable both ways, and I have not had a problem. So I think that it-a week at a time would probably be better, but I did not know there was any custody issues until now.

She later added:

I mean, the 50/50 has worked, as far as I'm concerned. Like I said, I do think a week at a time would be easier. We came up with the two -Monday, Tuesday, Wednesday, Thursday and every other weekend ourselves. I think a week at a time at their age right now would be easier. But 50/50. I mean, I don't see why there wouldn't be 50/50.

These statements do not establish an agreement or stipulation that the existing custody arrangement was not working so as to eliminate the requirement of proving a change in circumstances materially affecting the welfare of the children. Compare Lunney v. Lunney, 11-1891 (La. App. 1 Cir. 2/10/12), 91 So.3d 350, 354, writ denied , 12-0610 (La. 4/4/12), 85 So.3d 130. The trial court erred in finding such an agreement by Hawkins.

Relying on the terms of the prior custody agreement, the trial court also found Burns' remarriage and Hawkins' engagement to be changes in circumstances. The prior custody agreement provides that "[u]pon marriage or remarriage, either party may seek a modification of custody or visitation, in accordance with the law. " (Emphasis added.)

A consent judgment is a bilateral contract; therefore, its provisions are subject to the general rules of contractual interpretation. See St. Cyr v. St. Cyr, 16-0896 (La. App. 1 Cir. 2/21/17), 215 So.3d 283, 285, writ denied, 17-0511 (La. 3/31/17), 217 So.3d 357 ; Baker v. Baker, 12-0911, 2013 WL 1791077, p.4 (La. App. 1 Cir. 4/26/13), writ denied, 13-1218 (La. 9/13/13), 122 So.3d 545 ; Richardson v. Richardson, 02-2415 (La. App. 1 Cir. 7/9/03), 859 So.2d 81, 84-85. Each provision must be interpreted in light of other provisions so each is given meaning suggested by the contract as a whole, and when the words of the contract are clear and explicit and lead to no absurd consequences, the intent of the parties is to be determined by the words of the contract. Richardson, 859 So.2d at 85 ; see also La. Civ. Code arts. 2045 and 2046. Such intent is determined in accordance with the plain, ordinary, and popular sense of the language used, and by construing the entirety of the document on a practical, reasonable, and fair basis. Freeport-McMoran, Inc. v. Transcontinental Gas Pipe Line Corp., 04-0031 (La. App. 1 Cir. 10/14/05), 924 So.2d 207, 212, writ denied, 05-2358 (La. 3/31/06), 925 So.2d 1256.

By its plain language, the parties' agreement requires them to seek any modification based upon remarriage in accordance with the law. A party's remarriage, alone, does not constitute a change in circumstances warranting a change in custody. Tinsley, 211 So.3d at 417 ; see also Mosely v. Mosely, 499 So.2d 106, 108-09 (La. App. 1 Cir. 1986), writ denied, 505 So.2d 1138 (La. 1987) ; Ketchum v. Ketchum, 39,082 (La. App. 2 Cir. 9/1/04), 882 So.2d 631, 637 ; Shaw v. Shaw, 30,613 (La. App. 2 Cir. 6/24/98), 714 So.2d 906, 909, writs denied, 98-2414 (La. 11/20/98), 729 So.2d 556 and 98-2426 (La. 11/20/98), 729 So.2d 558. Rather, remarriage is one factor, to be considered in combination with any others, used to determine a change in circumstances. See Tinsley, 211 So.3d at 418. Here, Burns testified that his home is "stable"; however, he offered no evidence of any effect his June 11, 2015 marriage, after the couple lived together for ten months, had on the children.

The trial court additionally referenced Hawkins' engagement and Burns argues on appeal that Hawkins' change in lifestyle supports the finding of a material change in circumstances. Burns testified that Hawkins lives with her boyfriend, who rides motorcycles and plays in a band, and that he did not believe that "a roadie type band lifestyle" was conducive to raising young children. Burns submitted copies of Facebook posts for the band, pictures of Hawkins' boyfriend with a firearm, as well as copies of Facebook posts with commentary that Burns believed suggested that the children would be present at a party where adults would be heavily drinking. Burns also submitted pictures of his children on the back of a motorcycle driven by someone he did not know, and testified that his daughter had been allowed to go to Mississippi with people he did not know. He testified that he believed Hawkins was putting the children in harm's way, indicating that she left the children with babysitters, and he did not know who was watching his children.

Burns' testimony establishes that he disapproves of Hawkins' boyfriend and lifestyle. However, Burns offered no evidence any effect Hawkins' actions actually had on the children. He did not establish that the children were neglected or were not cared for when in Hawkins' custody, even if the children were on occasion left with babysitters. Nor did he establish that the children were being negatively influenced or were in any danger, as he suggested. While Burns believed that the Facebook posts suggested that the children would be at a party with adults heavily drinking, he offered no evidence that the children were actually present at such an event. And while Burns offered pictures showing that the children were on the back of a motorcycle, he did not establish that this happened on more than that single occasion, or that the children were in any danger.

After a thorough review of the evidence presented in this case, we find that the trial court was manifestly erroneous in concluding that Burns proved a change in circumstances warranting modification of the prior custody decree. Because the first requirement for modifying the consent judgment was not satisfied, and the required change was not shown, the inquiry ends and there is no basis for altering the physical custody decree. See Tinsley, 211 So.3d at 418. Consequently, the November 3, 2016 judgment modifying the custody arrangement in the prior consent judgment is reversed.

CONCLUSION

The trial court's November 3, 2016 judgment is reversed and the custody arrangement established by the May 20, 2014 consent judgment is reinstated. All costs of this appeal are assessed to Robert Arthur Burns II.

NOVEMBER 3, 2016 JUDGMENT REVERSED; MAY 20 2014 JUDGMENT REINSTATED.

      Burns testified the schedule meant for every two week period, during week one, he had custody on Monday, Tuesday, Friday, Saturday, and Sunday, then during week two he had custody on Wednesday and Thursday.

      The record was designated by Hawkins to include all pleadings filed on or after May 12, 2014, the date the parties' original joint custody agreement was filed.

      Burns testified he and Hawkins agreed it was "okay" for either of them to live with another party.

      Hawkins testified that the photographs were taken at a motorcycle-themed birthday party for a friend's ten-year-old daughter where each child was driven on a motorcycle once around the neighborhood block while wearing a helmet.