text:
    Nathaniel J. BROWN, Appellant, v. Pamela Jo BONDI, Attorney General of Florida, Appellee.
    No. 1D17-1211
    District Court of Appeal of Florida, First District.
    April 20, 2018
    Nathaniel J. Brown, pro se, Appellant.
    Pamela Jo Bondi, Attorney General and Charles J. F. Schreiber, Jr., Senior Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant has filed myriad actions in this Court and others attacking his 2005 judgment and sentence entered in Duval County. See Brown v. State , 229 So.3d 397 (Mem.) (Fla. 1st DCA 2017). This appeal is the latest in that collection, and like the rest, it is frivolous.

In 2010, we barred Appellant from "filing any future [pro se] appeals, petitions, motions, pleadings or other filings" challenging his conviction, in part because "those filings ha[ve] consumed an inordinate amount of our limited judicial resources." Brown v. State , 35 So.3d 72, 73 (Fla. 1st DCA 2010). Apparently unfazed by our warnings, Appellant continued filing pro se actions in this Court challenging that conviction. E.g. , Brown v. Tucker , 75 So.3d 393, 394 (Fla. 1st DCA 2011). In 2017, this Court broadened Appellant's bar to include any further filings, unless they are signed by a member in good standing with The Florida Bar after rejecting Appellant's argument that his civil litigation should be considered separate from his criminal litigation when considering sanctions. Brown v. State , 221 So.3d 1284, 1284 (Fla. 1st DCA 2017). After barring Appellant twice, we also warned him that future "violation of this order could result in referral to the Department of Corrections for sanctions under section 944.279, Florida Statutes." Brown , 221 So.3d at 1284-85.

That brings us to Appellant's current appeal. First, we dismiss the appeal because Appellant is barred from filing any pro se actions in this Court. Second, all pending motions are stricken as unauthorized. But because Appellant has yet to heed our warnings to stop filing frivolous actions, we also direct a certified copy of this opinion be provided to the Department of Corrections to be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to section 944.279, Florida Statutes.

Finally, we note that Appellant is still barred from filing any document with this Court that is not signed by a member in good standing of The Florida Bar, and the Clerk of this Court is directed to reject any further filings by Appellant not signed by a member in good standing with The Florida Bar. This includes any post-disposition motion filed in this case.

Wetherell, Makar, and Kelsey, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Joseph TETHER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3659
    District Court of Appeal of Florida, First District.
    April 20, 2018
    Joseph Tether, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.110(b) ; Fla. R. App. P. 9.140(b)(3). Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Wolf, Roberts, and Wetherell, JJ., concur.


text:
    Jeffrey Scott LINTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3084
    District Court of Appeal of Florida, First District.
    April 20, 2018
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant; Jeffrey Scott Linton, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We affirm the appellant's judgment and sentence, but remand for correction of a scrivener's error contained in the written judgment and sentence. See Diaz v. State , 910 So.2d 894 (Fla. 1st DCA 2005) (remanding for correction of scrivener's error in the judgment). The written judgment incorrectly lists the appellant's conviction for aggravated child abuse as a first-degree felony punishable by life, instead of a first-degree felony. See § 827.03(2)(a), Fla. Stat. (2015).

AFFIRMED and REMANDED with instructions.

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


text:
    Thomas R. BECNEL and DRB Development, LLC, Petitioners, v. AIZ HOLDINGS, LLC, Respondent.
    No. 1D17-3686
    District Court of Appeal of Florida, First District.
    April 25, 2018
    Dana C. Matthews and John M. Stratton of Matthews & Jones, LLP, Destin, for Petitioners.
    Laurence J. Pino of Pino Nicolson, PLLC, Orlando; Stephen D. Milbrath and Tucker H. Byrd of Byrd Campbell, P.A., Winter Park, for Respondent.
   Per Curiam.

Petitioners, Thomas R. Becnel and DRB Development, LLC, seek certiorari review of an order granting a motion to compel discovery filed by Respondent, AIZ Holdings, LLC, and denying DRB's motion to quash. Because we agree with Respondent that Petitioners are unable to show irreparable harm, we dismiss the petition. See W. Fla. Reg'l Med. Ctr., Inc. v. See , 18 So.3d 676, 682 (Fla. 1st DCA 2009) (noting that a petitioner seeking certiorari review must demonstrate a departure from the essential requirements of the law resulting in irreparable harm that cannot be remedied on appeal and that the irreparable harm element must be addressed first because it is an issue of jurisdiction), aff'd , 79 So.3d 1 (Fla. 2012) ; see also Bd. of Trs. of the Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC , 99 So.3d 450, 456 (Fla. 2012) (explaining that overbreadth in the context of discovery is not a sufficient basis for certiorari relief); Heekin v. Del Col , 60 So.3d 437, 438-39 (Fla. 1st DCA 2011) (noting that an order compelling production of relevant financial information cannot be the object of a writ of certiorari because there is no irreparable harm).

DISMISSED .

Lewis, Kelsey, and Winsor, JJ., concur.


text:
    Sameer OKASHAH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1194
    District Court of Appeal of Florida, First District.
    April 25, 2018
    Candice K. Brower, Criminal Conflict & Civil Regional Counsel, Melissa J. Ford, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this direct criminal appeal, Appellant, Sameer Okashah, seeks review of his conviction for failure to remit state sales taxes and raises two issues. We affirm Appellant's judgment and sentence as to the first issue without discussion. However, we dismiss the appeal as to the second issue, in which Appellant asserts that the trial court erred by imposing restitution after he had filed the notice of appeal of the judgment and sentence, because we lack jurisdiction given his failure to file a notice of appeal challenging the restitution order. See Turner v. State , 40 So.3d 925, 926 (Fla. 1st DCA 2010) (holding that the Court was constrained to dismiss the portion of the appeal challenging the imposition of restitution after the appellant had filed a notice of appeal of his judgment and sentence because he failed to file a separate notice of appeal of the restitution order); see also Pennywell v. Dep't of Revenue ex rel. Woodard , 62 So.3d 19, 20 (Fla. 1st DCA 2011) (explaining that in order for an appellate court to have jurisdiction over an appeal, "[a] notice of appeal must be filed within 30 days after rendition of the order to be reviewed" (citing Florida Rule of Appellate Procedure 9.110(b) ).

AFFIRMED in part and DISMISSED in part.

LEWIS, ROBERTS, and Jay, JJ., concur.


text:
    Deon DANNA v. The RITZ-CARLTON HOTEL CO., LLC, et al.
    No. 2018-CC-0331
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
    Writ granted. The district court's order requiring defendants to amend their interrogatory answer to give a specific answer as directed by the court is vacated and set aside. The case is remanded to the district court to consider alternatives to its order, such as limiting the scope of the interrogatory and compelling defendants to answer the interrogatory as limited.
    CRICHTON, J., additionally concurs and assigns reasons.
    CRICHTON, J., additionally concurs and assigns reasons:
    Although this Court generally leaves pre-trial discovery matters to the great discretion of the trial court, this matter warrants our intervention. I therefore agree with the Court's decision to grant this writ and remand with the direction to the district court to consider alternatives to its order. Here, applicants assert that the response to interrogatories imposed by the trial court would force defendants and their counsel to make an untenable choice: commit perjury and violate the Rules of Professional Conduct, respectively, or subject themselves to being held in contempt of court or sanctioned. In my view, compelling such an alternative could create a material injustice.

      See, Caminita v. State of Louisiana Through the Dep't of Transportation and Dev. , 14-2317 (La. 2/6/15), 177 So.3d 321 (Crichton, J., concurring, questioning whether the exercise of this Court's supervisory jurisdiction is warranted on a pre-trial matter such as a Motion in Limine, quoting then-Associate Justice Catherine D. Kimball's concurring opinion in Lenard v. Dilley , 01-1522 (La. 1/15/02), 805 So.2d 175, 181, which stated that "reviewing decisions stemming from motions in limine is, in my view, an inefficient allocation of this court's already strained judicial time and resources...."). See also, Moak v. Illinois Central Railroad Company , 93-0783 (La. 1/14/94), 631 So.2d 401, 406, reh'g den. 2/10/94 ("[i]t is well established that trial courts in Louisiana have broad discretion when regulating pre-trial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse.") (internal citations omitted).

   --------


author: Hughes, J. concurs.

text:
    STATE of Louisiana v. Jerrod Ashley WILSON
    No. 1998-KO-1135
    Supreme Court of Louisiana.
    April 20, 2018
    ON RECONSIDERATION FROM THE LOUISIANA SUPREME COURT
    Application for reconsideration not considered.
    HUGHES, J., concurs and assigns reasons.
   Hughes, J. concurs.

If the Third Circuit Court of Appeal instructed the District Court to clarify relator's commitment order, and the District Court has failed to do so, relator should seek relief from the Court of Appeal to enforce its order.


text:
    IN RE: Kenneth PLAISANCE
    NO. 2018-B-0023
    Supreme Court of Louisiana.
    April 20, 2018
    ORDER
   Considering the application for reconsideration filed by respondent, and the notification from the Disciplinary Board that an Order of Compliance has been received and the processing fee paid,

IT IS ORDERED that respondent be reinstated to the practice of law, pursuant to Supreme Court Rule XIX, § 19.1.


text:
    STATE of Louisiana v. Briceson CARTER
    No. 2018-KK-0555
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRIT FROM THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS
    Writ denied.
    Genovese, J., would grant and assigns reasons:
    I disagree with this Court's denial of defendant's application for a supervisory writ in this case. Defendant seeks a reversal of the trial court's ruling which granted the state's motion to introduce evidence of an other crime, wrong, or act, in accordance with La.Code Evid. art. 404(B) and State v. Prieur , 277 So.2d 126 (La.1973), at defendant's trial on the charge of second degree murder.
    The facts presented indicate that the alleged other crime, wrong, or act occurred four years after the alleged murder for which the defendant is charged. I find no connexity, pattern, motive, intent, or relationship to the original crime with which the defendant is charged. Thus, the alleged other crime, wrong, or act does not fall within the parameters of 404(B) and is inadmissible.
   Further, the 404(B) evidence which the state seeks to introduce is highly prejudicial. Even assuming, arguendo, that the state's evidence meets the strict standards of La.Code Evid. art. 404(B), the evidence is unquestionably more prejudicial than probative, in contravention of La.Code Evid. art. 403, and should not be allowed. Therefore, I would grant this writ, reverse the trial court's ruling, and deny the state's Prieur motion.


author: PER CURIAM:

text:
    STATE of Louisiana v. Tyrone WASHINGTON
    No. 2018-KK-0206
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. The district court's ruling that granted defendant's motion to suppress her statement is reversed and the matter is remanded for further proceedings. The officer's decision to forego the prophylactic protections of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to quickly ascertain the degree of immediate risk of a potential accelerant-fueled house fire was objectively reasonable. Therefore, the district court erred in granting defendant's motion to suppress. See New York v. Quarles , 467 U.S. 649, 657, 104 S.Ct. 2626, 2632, 81 L.Ed.2d 550 (1984) ("We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination.").

REVERSED AND REMANDED


text:
    STATE of Louisiana v. Brian SEGURA
    No. 2017-KP-0805
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). His venue claim is repetitive, see La.C.Cr.P. art. 930.4(A), and his sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172.

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 of Louisiana v. Charles D. CURRY
    No. 2017-KP-0793
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE EIGHTEENTH JUDICIAL DISTRICT COURT, PARISH OF WEST BATON ROUGE
   PER CURIAM:

Denied. See State v. Crosby , 338 So.2d 584, 588 (La. 1976) ("... Unqualified plea of guilty waives all non-jurisdictional defects occurring prior thereto, and precludes review thereof either by appeal or by post-conviction remedy.").

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 of Louisiana v. Burtell THOMAS
    No. 2017-KP-0625
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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 of Louisiana v. Arizona BATISTE
    No. 2017-KP-0515
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST. JOHN
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator also fails to show the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

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. Stanley DRAKE v. STATE of Louisiana
    No. 2017-KH-0456
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
   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 second application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a 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. Jamie COOPER v. STATE of Louisiana
    No. 2017-KH-0433
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON
   PER CURIAM:

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

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


text:
    STATE EX REL. Donald BARNES v. STATE of Louisiana
    No. 2017-KH-0425
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentences, 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 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 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. Johnel MATTHEWS v. STATE of Louisiana
    No. 2017-KH-0424
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   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. James SUMRALL v. STATE of Louisiana
    No. 2017-KH-0402
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   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). 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. Michael KING v. STATE of Louisiana
    No. 2017-KH-0374
    Supreme Court of Louisiana.
    April 20, 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. 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.

CRICHTON, J., recused.


text:
    STATE EX REL. Paul Anthony JONES v. STATE of Louisiana
    No. 2017-KH-0366
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of appellate counsel 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. Marlon J. BANKS v. STATE of Louisiana
    No. 2017-KH-0248
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   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 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. Shedrick GIVENS v. STATE of Louisiana
    NO. 2017-KH-0238
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   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 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. Derrick EDWARDS v. STATE of Louisiana
    NO. 2017-KH-0232
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to 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 successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

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


text:
    STATE EX REL. Marcellus ADAMS v. STATE of Louisiana
    No. 2017-KH-0229
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to 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 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. George MCGEE v. STATE of Louisiana
    No. 2017-KH-0134
    Supreme Court of Louisiana.
    April 20, 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.

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 of Louisiana v. Dwayne LEBLANC
    No. 2016-KP-1485
    Supreme Court of Louisiana.
    April 20, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   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. In addition, relator's claim of ineffective assistance of counsel is repetitive. La.C.Cr.P. art. 930.4(D).

Finally, relator fails to show he is factually innocent of the crimes under the standard of State v. Conway , 01-2808 (La. 4/12/02), 816 So.2d 290.

Relator has now fully litigated 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 he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J. would grant the writ in part.

GENOVESE, J., would grant in part and remand only to assess the Brady claim.


text:
    Javier OCAMPO and Dennis Ordonez v. Nicole MARONGE
    NO. 2018-C-0314
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    H.L. HAWKINS III and John C. Lovell, Jr. as Succession Representatives of the Succession of H.L. Hawkins, Jr., Hawkeye Energy, Inc., and H.L. Hawkins, Jr., Inc. v. THE MERIDIAN RESOURCE AND EXPLORATION LLC and The Meridian Resource Corporation f/k/a Texas Meridian Resources Exploration, Inc.
    NO. 2018-C-0027
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant for the reasons assigned by Judge Whipple and Judge McClendon.


text:
    STATE of Louisiana v. Ian ROWAN
    NO. 2018-KK-0514
    Supreme Court of Louisiana.
    April 12, 2018
    Writ granted in part. The evidence is sufficient to support a finding of probable cause for the illegal use of a weapon.


text:
    Oana CRASI v. Larry Steven CROW
    NO. 2018-CJ-0458
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.


text:
    Nicole SMITH v. CRESCENT CITY PHYSICIANS, INC.
    NO. 2018-CC-0318
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    F.L. CRANE & SONS, INC. v. WOODROW WILSON CONSTRUCTION, L.L.C. and Western Surety Company
    NO. 2018-CC-0330
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.
   HUGHES, J., would grant.


text:
    IN RE: BAR ADMISSIONS CFN-296758
    NO. 2018-BA-0417
    Supreme Court of Louisiana.
    April 16, 2018
    Motion to file untimely petition denied. Petition for admission to the bar not considered. Supreme Court Rule XVII, § 9(B). Pursuant to Supreme Court Rule XIX, § 9(D)(13), petitioner may not seek admission until one year after October 6, 2017.
    JOHNSON, C.J., would grant and consider the petition.
    HUGHES, J., would grant and consider the petition.


text:
    In the MATTER OF the COMMITMENT OF C.G.W.
    NO. 2018-C-0326
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    STATE of Louisiana v. Cedric Lynn HARVEY
    NO. 2017-KO-1283
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    STATE of Louisiana v. Alonzo MCPHERSON
    NO. 2018-KK-0328
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    STATE EX REL. Randy WRIGHT v. STATE of Louisiana
    NO. 2017-KH-0322
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    James A. THOMAS and Sharon Thomas v. Bryan BOYD and Werner Enterprises, Inc. of Nebraska
    NO. 2018-00233
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    STATE of Louisiana IN the INTEREST OF J.S.
    NO. 2018-CJ-0375
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    STATE of Louisiana v. Danny D. SAULNY
    NO. 2017-KO-1032
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    STATE of Louisiana v. Ronnie JACKSON
    NO. 2018-KK-0335
    Supreme Court of Louisiana.
    April 16, 2018
    Denied.


text:
    STATE EX REL. Timothy J. MAZIQUE v. STATE of Louisiana
    NO. 2017-KH-0139
    Supreme Court of Louisiana.
    April 20, 2018
    Denied.


text:
    STATE of Louisiana v. Mark LUZZO
    NO. 2017-KO-0809
    Supreme Court of Louisiana.
    April 20, 2018
    Denied.


author: JOHNSON, C.J., would grant.

text:
    Margaret HILLS v. LDH, OFFICE OF BEHAVIORAL HEALTH
    NO. 2018-CC-0225
    Supreme Court of Louisiana.
    April 20, 2018
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    Charles GARBER, Edward C. Bonin, Rene Fransen, and Rodney Villarreal v. The CITY OF NEW ORLEANS through the City Council and The City Planning Commission
    NO. 2018-C-0351
    Supreme Court of Louisiana.
    April 20, 2018
    Denied.


text:
    Heather FELICE, et al. v. AMERICAN SOUTHERN HOME INSURANCE COMPANY, et al.
    NO. 2018-CC-0346
    Supreme Court of Louisiana.
    April 20, 2018
    Denied.


text:
    SAINT JAMES MISSION CHURCH-AIRPORT ROAD v. ANNUAL CONFERENCE OF the AFRICAN METHODIST EPISCOPAL CHURCH in Mississippi and Louisiana
    NO. 2018-C-0347
    Supreme Court of Louisiana.
    April 20, 2018
    Denied.


text:
    STATE of Louisiana v. Patrick David SPEARMAN
    NO. 2018-KK-0489
    Supreme Court of Louisiana.
    April 20, 2018
    Denied.


text:
    STATE EX REL. Jesse Jay MONTEJO v. Darrell VANNOY
    NO. 2017-KP-0816
    Supreme Court of Louisiana.
    April 20, 2018
    Denied.


text:
    STATE of Louisiana v. Paul Jacob NORMAN, II
    NO. 2017-KO-1152
    Supreme Court of Louisiana.
    April 20, 2018
    Denied.


author: CRAIN, J.

text:
    Tierra WILLIAMS v. LOUISIANA DEPARTMENT OF HEALTH, OFFICE OF CITIZENS WITH DEVELOPMENTAL DISABILITIES, PINECREST SUPPORTS AND SERVICES CENTER
    NO. 2017 CA 0772
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 21, 2017
    Daniel E. Broussard Jr., Alexandria, Louisiana, Attorney for Plaintiff/Appellant, Tierra Williams
    Neal R. Elliott Jr., Baton Rouge, Louisiana, Attorney for Defendant/Appellant, Louisiana Department of Health, OCDD, Pinecrest Supports and Services Center
    Adrienne Bordelon, Baton Rouge, Louisiana, Attorney for Defendant/Appellee, Byron P. Decoteau Jr., Director, Department of State Civil Service
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

Tierra Williams appeals a decision of the Louisiana Civil Service Commission upholding the termination of her employment. We affirm.

FACTS AND PROCEDURAL HISTORY

Williams was employed by the Louisiana Department of Health, Office for Citizens with Developmental Disabilities, as a residential services specialist at Pinecrest Supports and Services Center, a residential facility for disabled individuals. During the course of her employment, Williams was involved in a physical altercation with a co-employee, Brenda Green. After an investigation, the Department determined Williams' conduct violated Pinecrest's workplace violence policy and constituted neglect in the care of the resident under her supervision. Based on those findings, the Department dismissed Williams from her employment.

Williams appealed the Department's decision to the Civil Service Commission. At a hearing before a referee, the evidence established the altercation occurred while a group of residents were walking to a park under the supervision and care of four Department employees: Sandra Lowery, Zelda Hinkston, Green, and Williams. Each employee was assigned to a particular resident or group of residents. Williams was assigned to a "one-on-one" resident, which, for this particular resident, meant Williams was to remain within "arm's length" of the resident at all times.

Hinkston, who was walking in the front of the group, heard Williams and Green arguing after Williams told Green to walk behind, rather than in front of, the residents under Green's care. Hinkston turned briefly and told them to quit arguing, then resumed walking to the park with her residents. Hinkston did not see a physical altercation but testified Williams was not within arm's length of her resident when Hinkston turned around.

Lowry was third in line among the staff, walking immediately behind Williams and ahead of Green, who was in the back of the group. According to Lowry, after Williams and Green started arguing, Williams left the resident under her care and walked to the back of the group and confronted Green. Lowry heard Williams threaten to hit Green, and Green said, "Stop, don't push me." When Lowry turned around, she saw Williams "swinging" at Green, who had her arms up in a defensive posture. Lowry never saw Green try to hit Williams.

Green testified she and Williams exchanged words after Williams told her to stay at the back with her residents. Green informed Williams she was with her group and Williams should mind the resident under her care, which prompted Williams to threaten to "come back there and hit you in your ... face." Williams left her resident, walked to the back of the group, and began hitting Green in the face. Green denied provoking Williams in any manner or swinging back.

Williams acknowledged telling Green to walk closer to her residents but denied confronting her. Instead, according to Williams, Green was the aggressor and began cursing Williams and waving her hands in Williams' face. When Green touched Williams' face, Williams pushed her hands back. Green then pulled Williams off the sidewalk and into an adjacent parking lot. Williams denied touching Green and said she acted only in self-defense. Williams testified the only time she was not within arm's length of her resident was when Green pulled her into the parking lot.

In an effort to bolster her credibility, Williams presented testimony from a polygraph examiner, retained by Williams, who questioned her about the altercation during a polygraph examination. In the examiner's opinion, Williams gave truthful answers when she denied starting the altercation or leaving her resident. The examiner acknowledged that a polygraph can be "beat[en]" by using "counter measures," and he was unaware of the success rate of the examinations. The Department stipulated the examiner's opinion could "go to the weight of the evidence."

The parties introduced several exhibits, including Pinecrest's written policy for workplace violence, which, in relevant part, defines "workplace violence" as "any act of violence, threat of physical violence ... or other threatening, disruptive behavior that is related to the workplace (or away from the workplace, if it relates to the job)." Amanda Pittman, the associate administrator for Pinecrest, confirmed the center has a "zero-tolerance policy" for workplace violence.

The referee concluded the Department proved cause for disciplining Williams, namely a failure to provide continuous one-on-one supervision for her resident and violation of Pinecrest's workplace violence policy, and that the discipline imposed, dismissal from employment, is commensurate with the offenses. Recognizing the conflicting accounts of the incident, the referee explained the basis for her decision as follows:

I observed Ms. Williams, Ms. Green, Ms. Lowery and Ms. Hinkston and listened to their testimony. I found the testimony of Ms. Williams and Ms. Green to both be self-serving and give little credence to either of them. Ms. Lowery and Ms. Hinkston were eye-witness to the incident. Their testimony was straightforward, truthful and I determine their version of the events to be the most credible.

Williams filed an application for review of the referee's decision, which the Commission denied, making the referee's decision the final decision of the Commission. See La. Const. art. X, § 12 (A); Civil Service Rule 13.36(g). On appeal, Williams asserts the decision is manifestly erroneous, and the referee erred as a matter of law in discounting the results of the polygraph examination.

DISCUSSION

A classified employee with permanent status may be disciplined only for cause expressed in writing. See La. Const. art. X, § 8 (A). The physical assault of a co-employee is sufficient cause for dismissal of the offending classified employee. See Ford v. Louisiana State University Health Sciences Center , 10-1434, 2011 WL 856418 p.1, (La. App. 1 Cir. 2/11/11) ; Sutherland v. Board of Commissioners , 459 So.2d 1282, 1283 (La. App. 1 Cir. 1984) ; Davis v. Recreation Department , 12-1273 (La. App. 4 Cir. 1/30/13), 107 So.3d 1254, 1261 ; Williams v. Sewerage and Water Board , 04-0025 (La. App. 4 Cir. 5/19/04), 876 So.2d 117, 122. The appointing authority bears the burden of proving such conduct by a preponderance of the evidence, meaning the evidence as a whole must show the fact sought to be proven as more probable than not. Cole v. Division of Administration , 14-0936 (La. App. 1 Cir. 1/26/15), 170 So.3d 180, 184 ; Paulin v. Department of Health and Hospitals , 13-1916 (La. App. 1 Cir. 6/6/14), 146 So.3d 264, 268.

The factual conclusions of the referee and Commission are subject to the manifest error standard of review, meaning those conclusions will be reversed only if the appellate court determines they have no reasonable basis in the record and are clearly wrong. See Cole , 170 So.3d at 184 ; Paulin , 146 So.3d at 268. In evaluating the Commission's determination that the disciplinary action is based on legal cause and is commensurate with the infraction, the court should not modify the Commission's order unless it is arbitrary, capricious, or characterized by abuse of discretion. McGee v. Department of Transportation and Development , 99-2628 (La. App. 1 Cir. 12/22/00), 774 So.2d 1280, 1282, writ denied , 01-0232 (La. 3/23/01), 788 So.2d 432. Each case must be decided on its own facts. Reviewing courts should not second guess the appointing authority's decision, but only intervene when decisions are arbitrary and capricious or characterized by an abuse of discretion. Cole , 170 So.3d 184-85 ; Paulin , 146 So.3d at 268.

Williams relies heavily on the results of the polygraph examination, essentially arguing the examiner's opinion is determinative of the truthfulness of her account of the incident. Asserting the referee legally erred in discounting the results of the polygraph, Williams points to the following statements in the referee's decision:

A polygraph is strictly a tool to aid in an investigation or to help the trier of fact determine the truth. The opinion of a polygraph examiner has no greater weight than any other witness, and in fact may have less weight, since the polygraph examiner was not present for the event, nor did he speak with or observe the testimony of any of the other witnesses or parties to this incident.

While polygraph evidence may be admissible in administrative proceedings under certain circumstances, the factfinder determines the weight, if any, to be given that evidence. See Evans v. DeRidder Municipal Fire , 01-2466 (La. 4/3/02), 815 So.2d 61, 68, cert. denied, 537 U.S. 1108, 123 S.Ct. 884, 154 L.Ed.2d 779 (2003) ; Harrell v. Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, Pinecrest Supports and Services Center , 10-0281 (La. App. 1 Cir. 9/10/10), 48 So.3d 297, 306. When admitted into evidence, a polygraph test is "merely a tool to assist" the factfinder and, like any other expert evidence, is not binding. See Harrell , 48 So.3d at 306. In this case, for the reasons provided, the referee was not swayed by the polygraph evidence. Having reviewed the examiner's testimony and the test results, we find no abuse of discretion in the referee's assessment of that evidence. See Harrell , 48 So.3d at 306.

The referee's decision was based on the testimony of fact witnesses, particularly the two disinterested witnesses, Lowery and Hinkston. While Williams claimed she acted only in self-defense, her testimony was contradicted by Lowery, who was walking between Williams and Green when the two began to argue. Lowery testified Williams left her resident and walked to the back of the group where she confronted, threatened, and physically attacked Green. Lowery's testimony was corroborated by Green and to a lesser extent by Hinkston, although from her vantage point at the front of the group, Hinkston did not hear all of the verbal exchanges and did not see the physical altercation. Lowery, Hinkston, and Green likewise testified that during the incident, Williams did not remain within arm's length of the resident under her care.

The referee, as the trier of fact, is granted a great deal of discretion in matters of credibility of witnesses. Wiley v. Department of Health and Hospitals, 15-1984 (La. App. 1 Cir. 9/16/16), 203 So.3d 1085, 1089. The referee is able to observe firsthand the demeanor and character of the witnesses, while this court is limited to a review of the cold record. Wiley , 203 So.3d at 1089. Therefore, unless the factual findings are clearly wrong or manifestly erroneous, we will not disturb the referee's credibility determinations. Wiley , 203 So.3d at 1089. Based upon our review of the evidence, the referee was not manifestly erroneous or clearly wrong in concluding Williams instigated the altercation and neglected the resident under her care. The record contains a reasonable basis for those factual determinations. We further find the penalty imposed, dismissal from her employment, is commensurate with the offenses. See Ford , 2011 WL 856418 at p.1 ; Sutherland , 459 So.2d at 1283 ; Davis , 107 So.3d at 1261 ; Williams , 876 So.2d at 122. The appellant's assignments of error are without merit.

CONCLUSION

We affirm the decision of the referee and the Commission's denial of the application for review. All costs of this appeal are assessed to Tierra Williams.

AFFIRMED.


author: McDONALD, J.

text:
    CROSSTEX ENERGY SERVICES, LP, Crosstex LIG, LLC, and Cross Tex Processing Services, LLC v. TEXAS BRINE COMPANY, LLC, et al.
    2017 CA 0895
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017
    Leopold Z. Sher, James M. Garner, Peter L. Hilbert, Jr., Neal J. Kling, Jeffrey D. Kessler, New Orleans, Louisiana, and Robert Ryland Percy, III, Gonzales, Louisiana and Travis J. Turner, Gonzales, Louisiana and Eric J. Mayer, Houston, Texas, Attorneys for Defendant/ Third Party-Plaintiff/Appellant Texas Brine Company, LLC
    Glen E. Mercer, Kourtney T. French, New Orleans, Louisiana, and Philip Robert King, Chicago, Illinois, Attorneys for Third-Party Defendant/ Appellee Zurich American Insurance Company, Pro Hac Vice
    BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ.
   McDONALD, J.

In this appeal, an insured appeals a summary judgment in favor of its insurer concluding the insurer did not owe the insured a duty to defend against the plaintiffs' claims in the underlying litigation and dismissing the insured's third party demand against the insurer, with prejudice. We affirm.

FACTS AND PROCEDURAL HISTORY

This suit is one of several arising from the August 2012 appearance of a sinkhole near Bayou Corne in Assumption Parish, Louisiana. EnLink f/k/a Crosstex , the plaintiffs in the underlying litigation, own and operate a natural gas pipeline that traverses the edge of a salt dome. Texas Brine operates brine production wells, including the Oxy Geismar # 3 well, on property above the salt dome. EnLink filed suit against Texas Brine and one of its insurers, Zurich American Insurance Company (Zurich), among others, alleging the sinkhole was caused, in whole or part, by the failure of the Oxy Geismar # 3 salt cavern and that the sinkhole engulfed a section of EnLink's pipeline, rendering the pipeline displaced, damaged, and unusable.

In response to EnLink's suit, Texas Brine filed a third party demand for declaratory judgment seeking defense and indemnity from insurers Zurich, National Union Fire Insurance Company of Pittsburgh, Pa. (National Union) and AIG Specialty f/k/a AISLIC (sometimes, collectively, AIG Insurers), under certain pre-2012 liability policies issued to Texas United Corporation.

In due course, the AIG Insurers filed a motion for summary judgment, claiming they had no duty to indemnify or defend Texas Brine in this suit, because EnLink's alleged damages did not occur during the effective date of any of the relevant policies, the last of which indisputably expired on March 1, 2009, more than three years before the sinkhole appeared. Zurich filed a motion for summary judgment, and partially joined in the motion for summary judgment filed by the AIG Insurers, claiming it had no duty to indemnify or defend Texas Brine in this suit, because EnLink's alleged damages did not occur during the effective dates of any of its relevant policies, the last of which indisputably expired on March 1, 2012, five months before the sinkhole appeared.

In a judgment signed February 14, 2017, the district court granted summary judgment in favor of the AIG insurers, in their capacities as Texas Brine's pre-2012 insurers, and dismissed Texas Brine's third party demand against them. Texas Brine appealed that judgment. In a judgment signed March 1, 2017, the district court granted Zurich's motion for summary judgment and Zurich's partial joinder in the motion for summary judgment filed by the AIG Insurers, dismissing all claims asserted by Texas Brine against Zurich, with prejudice. Texas Brine appealed the judgment.

While the appeal was pending, EnLink apparently settled its claims against Texas Brine, and those claims were dismissed. According to Texas Brine, however, this appeal still presents the issue of whether genuine issues of material fact exist such that Zurich owed Texas Brine a duty to defend Texas Brine on the EnLink claims against it until the date those claims were resolved and dismissed.

Texas Brine contends that the district court erred in granting summary judgment to Zurich because there are genuine issues of material fact as to when EnLink's damage began that preclude summary judgment on Zurich's duty to defend. Specifically, Texas Brine argues the pre-2012 Zurich policies do not limit coverage to property damage that manifests itself during the policy period but should be interpreted to cover possible hidden property damage to EnLink that may have resulted from earth movement that may have occurred during the policy periods. Texas Brine also contends that the district court erred, because another district court in other sinkhole-related cases denied summary judgment to insurers on the duty to defend issue.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Jones v. Anderson, 16-1361 (La. App. 1 Cir. 6/29/17), 224 So.3d 413, 417. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966A(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. LSA-C.C.P. art. 966A(4).

The burden of proof rests on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966D(1).

Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Jones, 224 So.3d at 417. Thus, appellate courts ask the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id. Because it is the applicable substantive law that determines materiality, whether a particular in dispute is material can be seen only in light of the substantive law applicable to the case. Id.

DUTY OF DEFEND

Whether an insurance policy provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. George S. May Int'l Co. v. Arrowpoint Capital Corp., 11-1865 (La. App. 1 Cir. 8/10/12), 97 So.3d 1167, 1171. The party seeking a declaration of coverage under an insurance policy must establish every fact essential to recovery and that the claim falls within the policy coverage. Id. Generally, the insurer's obligation to defend suits against its insured is broader than its obligation to indemnify for damage claims. Arceneaux v. Amstar Corp., 10-2329 (La. 7/1/11), 66 So.3d 438, 450. The issue of whether a liability insurer has the duty to defend a civil action against its insured is determined by application of the "eight-corners rule," under which an insurer must look to the "four corners" of the plaintiff's petition and the "four corners" of its policy to determine whether it owes that duty. Maldonado v. Kiewit Louisiana Co., 13-0756 (La. App. 1 Cir. 3/24/14), 146 So.3d 210, 218. The insurer's duty to defend suits brought against its insured is determined by the factual allegations of the injured plaintiff's petition, with the insurer being obligated to furnish a defense unless it is clear from the petition that the policy unambiguously excludes coverage. See Arceneaux, 66 So.3d at 450. Thus, assuming the factual allegations of the petition are true, if there could be both coverage under the policy and liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Id. Additionally, the court must liberally interpret the factual allegations of the petition in determining whether they bring the plaintiff's claim within the scope of the insurer's duty to defend the suit brought against its insured. Maldonado, 146 So.3d at 219. If a petition does not allege facts within the scope of coverage, however, an insurer is not legally required to defend a suit against its insured. Id.

We now review de novo the documents filed by the parties in support of and in opposition to Zurich's motion for summary judgment. See LSA-C.C.P. arts. 966A(4) and D(2). It is undisputed that Zurich provided insurance coverage to Texas United Corporation under policies effective from March 1, 2009 through March 1, 2010 and from March 1, 2010 through March 1, 2011 and from March 1, 2011 through March 1, 2012. Zurich filed pertinent excerpts from the three Zurich policies at issue in support of their motions. Generally, the Insuring Agreement of each of the policies provided, in pertinent part:

SECTION I-COVERAGES

COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. Insuring Agreement.

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" and settle any claim or "suit" that may result ....
b. This insurance applies to "bodily injury" and "property damage" only if:
(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory";
(2) The "bodily injury" or "property damage" occurs during the policy period; ...

Also, generally, the policies defined "property damage" as:

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it."

Further, each of the three pre-2012 Zurich policies at issue defines "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."

The Zurich pre-2012 policies provided coverage for property damage only if it occurred during the policy period. It is undisputed that no pre-2012 Zurich policy was in effect on August 3, 2012, the day the sinkhole near Bayou Corne appeared. Nevertheless, Texas Brine argues that, although EnLink may have discovered its pipeline damage on August 3, 2012, there are genuine issue of material fact as to whether hidden damage occurred before then, due to subsidence and other non-visible underground damage in the years before the sinkhole became visible. Thus, according to Texas Brine, the possibility that EnLink could have sustained damage during the pre-2012 Zurich policy periods precludes summary judgment on Zurich's duty to defend. To support its opposition to the summary judgment, Texas Brine filed three expert opinions. The first expert, William Barnhart, opined that inSAR analysis, a technique used to observe active ground surface deformation, was consistent with ground surface subsidence near the salt dome from 2007 through 2011. The second expert, John Carico, opined that pre-2012 earth movement in the Bayou Come area "could have" damaged EnLink's pipeline earlier than March 1, 2012. The third expert, Peter Knowe, opined that, "if" pre-2012 earth movement damaged EnLink's pipeline, such hidden damage would be covered under pre-2012 occurrence policies, even if the sinkhole did not appear until 2012.

We first note that, under the "eight-corners rule," Texas Brine's experts' opinions are irrelevant to determining Zurich's duty to defend Texas Brine against EnLink's claims. It is EnLink's allegations that determine Zurich's duty to defend, and Texas Brine cannot use expert opinions to add to EnLink's allegations, or to dictate a certain interpretation of EnLink's allegations, in its attempt to defeat summary judgment on the duty to defend issue. See Vaughn v. Franklin, 00-0291 (La. App. 1 Cir. 3/28/01), 785 So.2d 79, 85, writ denied, 01-1551 (La. 10/5/01), 798 So.2d 969 (rejecting insurer's argument to look beyond allegations of petition to determine duty to defend). Further, even if we did consider the expert opinions, they do not create a factual dispute as to whether EnLink sustained property damage during any of the specific, relevant policy periods, but only speculation that such could have occurred before March 1, 2012.

We now review EnLink's petition to determine if it alleged that property damage occurred during any of the pre-2012 Zurich policy periods. EnLink filed its original petition against Texas Brine in April 2013 and then amended it multiple times. In support of their respective positions on summary judgment, Zurich and Texas Brine both point to allegations from EnLink's petition, including the original, first amended, second amended, and fifth amended and restated petitions. We summarize pertinent allegations as follows, italicizing words and phrases relevant to EnLink's damages:

• EnLink owns/operates a petroleum gas storage facility situated near Bayou Corne; EnLink also owns/operates a pipeline that traverses the western edge of the Napoleonville salt dome near the Oxy Geismar # 3 brine production salt cavern.
• Since 1975, Texas Brine has leased the right to produce salt from land located on the salt dome.
• In 1982, Texas Brine and a land lessee drilled the Oxy Geismar # 3 well and Texas Brine remained the operator at least until 2015.
• In 1984, Texas Brine was informed of concerns about Oxy Geismar # 3's proximity to the edge of the salt dome; Texas Brine knew or should have known of all risks related to drilling and mining of the Oxy Geismar # 3 and had a duty to operate the Oxy Geismar # 3 as a prudent operator and in a reasonable manner.
• In at least 2007, Texas Brine became aware that the Oxy Geismar # 3 cavern was mined so close to the edge of the salt dome so as to threaten the cavern's integrity but continued to operate on the cavern.
• In about March 2009, Texas Brine ceased mining the Oxy Geismar # 3 well, and in June 2011, Texas Brine plugged and abandoned the Oxy Geismar # 3 well.
Beginning in May 2012, reports were made that natural gas was bubbling to the surface of waterways near the salt dome, which forced EnLink to perform continuous inspections, monitoring, probing, excavation, surveying, gas sampling and analysis, and related permitting to ensure the integrity of its pipelines in the area.
On August 3, 2012, a sinkhole emerged adjacent to EnLink's pipeline and has since engulfed a section of the pipeline.
• EnLink's pipeline was displaced, damaged, and rendered unusable due to the sudden soil subsidence, earth movement, and soil instability caused when the sinkhole occurred.
• The failure of the Oxy Geismar # 3 cavern caused, in whole or in part, the sinkhole and associated soil subsidence and instability; the Oxy Geismar # 3 cavern is unstable and continues to collapse.
• EnLink has incurred substantial damage from the sinkhole, and Texas Brine's role in causing or contributing to the sinkhole renders it directly liable to EnLink for damages sustained as a result of the sinkhole emergence.
• Due to the salt dome's potential instability, caused by the Oxy Geismar # 3 cavern failure, EnLink conducted structural integrity tests of its caverns and has transferred butane from an adjacent cavern to a more remote cavern.
• Due to the Oxy Geismar # 3 cavern failure, EnLink was prevented from expanding its storage facility as planned; lost storage cavern contracts with third parties; and, was required by state agencies to take responsive actions to the incident.
• Acts by Texas Brine, Texas United, and United Brine, and defective things they owned or over which they had garde, caused or directly contributed to the destabilization of the Oxy Geismar # 3 cavern and the eventual formation of the sinkhole causing damages to EnLink.
• Texas Brine's fault caused EnLink the following damage, without limitation: expenses associated with testing to determine the source of natural gas releases and subsequent gas monitoring; lost revenues associated with the shutdown of the pipeline; costs to relocate the pipeline; anticipated demolition costs for removing the pipeline's unusable section; expenses associated with salt dome and cavern structural integrity tests; costs and lost revenues associated with product transfers between caverns; lost storage cavern contract revenue; lost future revenue from lost facility and business expansion opportunities; costs to respond to state agency directives; interest, and other damages to be proven at trial.

Although there are some factual differences between this case and Crosstex Energy Services, LP, et al. v. Texas Brine Company, LLC, et al., 2017 CA 0863, the language found in Zurich's pre-2012 insurance policies in this case and the AIG Insurer's pre-2012 insurance policies in 2017 CA 0863 is substantially the same, the allegations of EnLink are the same in both cases, and the arguments by the parties on appeal are the same. Thus, for the reasons set out by this court in Crosstex Energy Services, LP, et al. v. Texas Brine Company, LLC, et al., 2017 CA 0863, we find the district court properly granted summary judgment in Zurich's favor.

CONCLUSION

For the reasons assigned by this court in Crosstex Energy Services, LP, et al. v. Texas Brine Company, LLC, et al., 2017 CA 0863, the district court's March 1, 2017 judgment, granting summary judgment in favor of Zurich American Insurance Company and dismissing Texas Brine's third party demands against it with prejudice, is affirmed. We assess the costs of this appeal to Texas Brine.

AFFIRMED.

      The original petition was filed by Crosstex Energy Services, LP; Crosstex LIG, LLC; and Crosstex Processing Services, LLC (Crosstex). In March 2014, the plaintiffs' names changed, respectively, to EnLink Midstream Operating, LP; EnLink LIG, LLC; and EnLink Processing Services, LLC. We sometimes refer to the plaintiffs in the underlying litigation as EnLink.

      In the original petition, EnLink named Texas Brine Company, LLC, as the defendant who operated the wells. In a fifth supplemental, amended, and restated petition, EnLink additionally named Texas United Corporation and United Brine Services Company, LLC, as defendants, claiming they were both alter egos of Texas Brine Company, LLC, which acted in concert with and/or as part of Texas Brine Company, LLC, in causing EnLink's damages. We sometimes refer to these three defendants as Texas Brine.

      In the original third party demand, Texas Brine named National Union, American International Surplus Lines Insurance Company (AISLIC) and American International Specialty Lines Insurance Company (also AISLIC) as third party defendants. In responsive pleadings, including their motion for summary judgment, those third party defendants identify themselves as National Union and AIG Specialty Insurance Company f/k/a AISLIC and AISLIC. We sometimes collectively refer to those third party defendants as the AIG Insurers.

      Although the last Zurich insurance policy at issue in this case expired on March 1, 2012, throughout the litigation the parties refer to the Zurich polices at issue in this case as "pre-2012" polices. For consistency, we use the same "pre-2012" policies language.

      The relevant policies identify Texas United Corporation as the insured. For purposes of the motion for summary judgment only, without waiving their right to contest Texas Brine's status, the AIG Insurers allowed Texas Brine to be considered an additional insured.

      Zurich noted that EnLink did not seek, and had never sought, a direct action claim under any of Zurich's pre-2012 insurance policies.

      The district court heard the motions for summary judgment at the same hearing and then issued one judgment in Zurich's favor and another judgment in the AIG Insurers' favor. We review the Zurich judgment here, under docket number 2017 CA 0895, and the AIG Insurers' judgment under docket number 2017 CA 0863, also decided this day.


author: HIGGINBOTHAM, J.

text:
    LAKESHORE CHRYSLER DODGE JEEP, INC. v. WINDSTREAM COMMUNICATIONS, INC., BellSouth Telecommunications, Inc., d/b/a AT & T Louisiana, Grady Crawford Construction Co., Inc. of Baton Rouge, Grady Crawford Construction Company, Inc., A & A Cable Contractors, Inc., and America First Insurance Company
    NO. 2017 CA 0841
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017
    Dwight L. Acomb, William F. Bologna, John C. McNeese, New Orleans, LA, Attorneys for Plaintiff-Appellant, Lakeshore Chrysler Dodge Jeep, Inc.
    Pamela S. Croft, Metairie, LA Attorney for Defendants-Appellees, BellSouth Telecommunications, Inc., d/b/a AT & T Louisiana, Grady Crawford Construction Company, Inc. of Baton Rouge, Grady Crawford Construction Co., Inc., and America First Insurance Company
    Thomas G. Buck, Brett W. Tweedel, Metairie, LA, Attorneys for Defendants-Appellees, A & A Cable Contractors, Inc., and America First Insurance Company
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

In this negligence action, plaintiff appeals the district court's grant of the defendants' motion for involuntary dismissal at the close of plaintiff's case.

FACTUAL AND PROCEDURAL HISTORY

On September 6, 2010, and December 8, 2010, Lakeshore Chrysler Dodge Jeep, Inc., a new and used vehicle sales and service dealership located in Slidell, Louisiana, lost telephone and internet service for several hours, allegedly precluding Lakeshore from fully conducting its business. After both outages, Lakeshore signed incident reports indicating that the outages were a result of nearby installation of underground cables. At the time of the outages, Lakeshore's internet and phone service provider was Windstream Communications, Inc. To provide service to Lakeshore, Windstream utilized BellSouth Telecommunications, Inc., d/b/a AT & T Southeast's (AT & T) underground cable network. In order to maintain the cable network, AT & T contracted with Grady Crawford Construction Co., Inc., to do line work. Grady Crawford subcontracted with A & A Cable Contractors, Inc., a business specializing in directional drilling and cable installation, to perform the work on AT & T's underground cables that served Lakeshore and other businesses in the area. On December 8, 2010, A & A installed a new cable for AT & T down the street from Lakeshore. In the process of digging for installation of a new cable, A & A pulled back the auger, and the cable providing service to Lakeshore was severed, causing Lakeshore, as well as other businesses in the area, to lose service.

On September 6, 2011, Lakeshore filed a "Petition for Damages" naming as defendants, Windstream, AT & T, Grady Crawford, A & A, and America First Insurance Company. In its petition, Lakeshore claimed that the outages were caused by the negligence of the defendants, and as a result of the outages, it suffered damages in the form of lost sales and profits, as well as inconvenience.

On September 26, 2016, the matter came before the district court for trial. After Lakeshore presented its case, the defendants jointly raised a motion for involuntary dismissal under La. Code Civ. P. art. 1672. The district court granted the defendants' motion, finding insufficient evidence to prove the defendants were the cause of the outage on September 6, 2010, and insufficient evidence to prove negligence on the part of the defendants for the outage on December 8, 2010. On October 18, 2016, the district court signed a judgment dismissing Lakeshore's claims against all of the remaining defendants. Lakeshore appealed.

LAW AND ANALYSIS

Louisiana Code of Civil Procedure article 1672(B) provides the basis for an involuntary dismissal at the close of a plaintiff's case in a bench trial, when a plaintiff has shown no right to relief based on the facts and law. In determining whether involuntary dismissal should be granted, the appropriate standard is whether the plaintiff has presented sufficient evidence in its case-in-chief to establish a claim by a preponderance of the evidence, which means taking the evidence as a whole, the fact or cause sought to be proved is more probable than not. Jackson v. Capitol City Family Health Center , 2004-2671 (La. App. 1st Cir. 12/22/05), 928 So.2d 129, 131. When considering a motion for involuntary dismissal, a plaintiff is entitled to no special inferences in his favor. However, absent circumstances in the record casting suspicion on the reliability of the testimony and sound reasons for its rejection, uncontroverted evidence should be taken as true to establish a fact for which it is offered. Id.

The trial court's grant of an involuntary dismissal is subject to the manifest error standard of review. Broussard v. Voorhies , 2006-2306 (La. App. 1st Cir. 9/19/07), 970 So.2d 1038, 1041-42, writ denied, 2007-2052 (La. 12/14/07), 970 So.2d 535. Accordingly, in order to reverse the trial court's grant of involuntary dismissal, we must find that there is no factual basis for the trial court's finding or that the finding is clearly wrong. Id. , 970 So.2d at 1042. See also Stobart v. State through Dept. of Transp. and Development , 617 So.2d 880, 882 (La. 1993).

Because an involuntary dismissal of an action pursuant to Article 1672(B) is based on the "facts and law," a review of the substantive law applicable to the plaintiff's case is necessary. In an action to recover damages allegedly caused by another's negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Hanks v. Entergy Corp. , 2006-477 (La. 12/18/06), 944 So.2d 564, 578. Most negligence cases are resolved by employing the duty-risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) whether the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Id. , 944 So.2d at 579.

In its first assignment of error, Lakeshore contends that the district court incorrectly concluded that the defendants were not negligent in severing the cable in question on September 6, 2010. The deposition of Mr. Julio Muro, who was employed by A & A at the time of the incident, was introduced into evidence. In his deposition, Mr. Muro stated that on September 6, 2010, A & A had no one in the area and did not have any permits to be on site that day. He noted that September 6, 2010, was Labor Day, and A & A was not working. Mr. Timothy Pierre, who is a field supervisor for Grady Crawford, testified about an incident where A & A was boring next to a manhole and severed the cable with a drill. However, Mr. Pierre said he was not on site when the cable was severed and was not clear on the date the outage occurred. Considering the evidence presented regarding the September 6, 2010 outage, we find no manifest error in the district court's conclusion that Lakeshore did not prove the defendants caused the outage.

In its remaining assignments of error, Lakeshore contends that the trial court erred in finding no negligence on the part of the defendants in causing its internet and phone outages. Specifically, Lakeshore contends that the district court incorrectly concluded that the defendants were not negligent in severing the cable when the exploring pits were only three feet deep and the industry standard for burying those types of cables underground was three-to-five feet; that Grady Crawford was not negligent when in 2000 it installed the cables at a depth below the industry standard of the three-to-five feet; and that AT & T was not negligent when it provided Grady Crawford unsheathed, non-locatable fiber optic cable for installation underground.

In the statement given by Mr. Muro after the December 8, 2010 outage, Mr. Muro said he was given the job by Grady Crawford, that he went to the site to get the "locates," and in attempting to locate an underground fiber optic cable he and his crew spot dug three feet in five areas trying to verify the location. When they were unsuccessful in locating the cable, Mr. Muro called for assistance Mr. Pierre, with Grady Crawford. Mr. Muro testified that Mr. Vick Steudlein, who was also with Grady Crawford and had 30 plus years' experience, came out to help locate the cable. According to Mr. Muro, Mr. Steudlein was unsuccessful in locating the cable.

Mr. Muro said that because they were unable to locate the cable and found nothing that led them to believe they were close to the cable, Mr. Muro attached a reamer and started pulling it back when it came in contact with the cable. He noted that the marks were not good marks. Mr. Muro stated that after the cable was severed, Mr. Gary Bankston with Grady Crawford, who also had 42 years' experience, was unable to locate the cable. Mr. Muro pointed out that three different companies and at least four different locators were unsuccessful in locating the cable. In Mr. Muro's deposition he testified that all of the proper precautions were taken, and he did not know of anything he could have done differently. Mr. Muro testified that he assumed the cable was un-locatable because they put five pairs of copper tracer wire with the cable. Mr. Andres Cruz, who is the owner and president of A & A, also testified that Mr. Muro took all the proper precautions before digging for the cable.

The only testimony regarding how deep the fiber optic cables should be buried underground was from Mr. Pierre, who testified that he places fiber optic cable three feet underground and that is the standard for the industry. He also testified that five feet would be the deepest that the cable should go according to the specifications. As pointed out by the district court, there was no expert testimony indicating that A & A or any of the defendants' conduct failed to conform to the appropriate industry standard for installing new cables. It was clear that A & A, as well as employees of Grady Crawford, thoroughly attempted to locate the cables in the area and worked as quickly as possible to repair the cable when it was severed.

As noted earlier, Mr. Muro made an assumption that AT & T used a non-locatable aerial cable since copper tracer wire was buried with the cable. Mr. Pierre, who installed the cables in 2000, testified "that could be what the problem is, because part of it was aerial, and they may have just come down the pole and continued with that aerial cable." Mr. Pierre further testified that he put tracer wire with the cable. Again, no evidence was introduced to prove AT & T used a wire that was not appropriate for underground burial at the time it was installed or that the cables were not buried at the appropriate depth.

The district court concluded that in its case in chief Lakeshore did not establish by a preponderance of the evidence the negligence of the named defendants. As pointed out by the district court, "Mr. Cruz's testimony indicated that both A & A and Grady Crawford did everything possible and reasonable to locate the cable," and "Mr. Muro's testimony convinced the court that every possible precaution was taken during the interruption." The district court's finding that Lakeshore failed to prove whether the defendants had a duty to conform their conduct to a specific standard or that the defendant's conduct failed to conform to the appropriate standard is not clearly wrong. After thorough review of the record, we find no manifest error in the district court's finding that Lakeshore failed to prove negligence on the part of the defendants and therefore, affirm the district court's grant of the defendants' motion for involuntary dismissal.

CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed. All costs of the appeal are assessed to plaintiff-appellant, Lakeshore Chrysler Dodge Jeep, Inc.

AFFIRMED.

      At the time of trial, Windstream was no longer involved in the suit.

      Lakeshore appealed from the denial of its motion for new trail. A judgment denying a motion for new trial is an interlocutory order and is normally not appealable. See La. Code Civ. P. art. 2083(C). However, when a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. Byrd v. Pulmonary Care Specialists, Inc. , 2016-0485 (La. App. 1st Cir. 12/22/16), 209 So.3d 192, 195.