text:
    David TROXCLAIR Individually and as Natural Tutor of his minor son Cole Troxclair v. LIBERTY PERSONAL INSURANCE COMPANY and Sonya Meyer
    NO. 17-CA-520
    Court of Appeal of Louisiana, Fifth Circuit.
    February 21, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, DAVID TROXCLAIR INDIVIDUALLY AND AS NATURAL TUTOR OF HIS MINOR SON COLE TROXCLAIR, Matthew D. Hemmer
    COUNSEL FOR DEFENDANT/APPELLANT, LIBERTY PERSONAL INSURANCE COMPANY AND SONYA MEYER, Kevin T. Phayer
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson
   GRAVOIS, J.

Defendants, Sonya Meyer and Liberty Personal Insurance Company, appeal a trial court judgment in favor of plaintiff, David Troxclair, individually and as natural tutor and administrator of the estate of his minor son, Cole Troxclair, in this suit for damages arising from a motor vehicle accident that occurred in front of plaintiff's home. After a bench trial, the court found Mrs. Meyer solely liable for the accident that caused injuries to Cole and damages to plaintiff's mailbox. On appeal, defendants argue that the trial court was manifestly erroneous in finding Mrs. Meyer at fault in causing the accident, or alternatively, in failing to find Cole comparatively at fault in causing the accident. For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

At around 8:00 a.m. on the morning of February 27, 2015, defendant, Sonya Meyer, was operating her Toyota Sequoia SUV on Lake Arrowhead Drive in the Stonebridge Subdivision in Harvey, Louisiana. Cole Troxclair, a minor child, lived on this street with his mother, father, and older brother. Mrs. Meyer also lived in the same neighborhood and was on her way home from dropping her daughter off at school. Cole, who was in the fifth grade at the time, was outside running in his front yard with his older brother, Drake, who was in the seventh grade. As Mrs. Meyer was proceeding down the street in front of the Troxclair home, her vehicle struck Cole, although the exact location of the accident was disputed at trial (whether it was in the driveway, the street, or the front yard).

In the accident, Cole sustained a mild concussion, a "really" bruised leg, a scraped arm, two lacerations on his chin (one requiring stitches), a "tiny" hairline fracture of the iliac crest of his hip, and a chipped tooth. He spent part of the day in the hospital. He was able to return to normal activities about a month or two after the accident. According to Mrs. Troxclair, he had a full and complete recovery "except for a little bit of puckering on his chin." Plaintiff's mailbox, which was a brick structure located next to the driveway where the front lawn met the curb, was also damaged when it was struck by Mrs. Meyer's vehicle.

On September 25, 2015, suit was filed against Mrs. Meyer and her automobile insurer, Liberty Personal Insurance Company. A bench trial was held on the matter on May 22, 2017. After taking the matter under advisement, the trial court signed a judgment on May 24, 2017 in favor of plaintiff, finding Mrs. Meyer solely liable for the accident and awarding plaintiff $29,619.99 in damages. Defendants requested written reasons for judgment, which were issued by the court on June 23, 2017. This appeal followed.

At issue in this appeal is the trial court's determination that Mrs. Meyer was solely liable in causing the accident. Defendants argue that the evidence shows that Cole was totally responsible for his own injuries because he "suddenly and without warning" ran into the path of Mrs. Meyer's vehicle, such that Mrs. Meyer did not have time to avoid hitting him. Alternatively, defendants argue that the evidence shows that at the very least, Cole was comparatively at fault in causing the accident, and thus, he should bear some responsibility for his injuries and resulting damages.

LAW AND ANALYSIS

A court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Stobart v. State , 617 So.2d 880, 882 (La. 1993). In Stobart , the Supreme Court reiterated the two-part test for the reversal of a factfinder's determinations: 1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Id. This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Id.

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Id. Nonetheless, the reviewing court must always keep in mind that "if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 882-83.

The reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Id. at 883. Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

An allocation of fault is a factual determination subject to the manifest error rule. Thomas v. Duncan , 41,938 (La. App. 2 Cir. 3/7/07), 954 So.2d 218, 221. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review; the issue for the reviewing court is not whether the trier of fact was wrong, but whether the factfinder's conclusions were reasonable under the evidence. Id.

At trial, plaintiff offered the live testimony of Summer Troxclair, Cole's mother, as well as of defendant, Mrs. Meyer. Leslie Claiborne, a resident of the neighborhood and witness to the accident who was traveling in her vehicle behind Mrs. Meyer, testified via a video deposition. The deposition testimonies of Deputy Jerry Bonds, the investigating deputy with the Jefferson Parish Sheriff's Office, as well as that of Drake Troxclair, Cole's older brother, were also introduced into evidence.

In its reasons for judgment, the trial court found:

After considering the evidence, stipulations, and the law, this Court determined that Defendants were liable to Plaintiff for the damages complained of in his petition. This Court determined that Sonya Meyer was distracted, did not see the children running in the yard and close to the street, and that she drove too close to the curb causing her vehicle to come into contact with Cole Troxclair and the Troxclair mailbox, and causing injury to the minor child and damage to the mailbox.

A review of the testimony presented at trial shows that the trial court was faced with differing accounts as to how the accident in question happened.

Mrs. Troxclair testified that at the time of the accident, she had just arrived home from her job as a pharmacist with Walgreens and was preparing to take her boys to school, but that Cole was running around in the front yard because he did not want to go to school that day and was being chased by his brother. On the day of the accident, only her car was in the driveway, and there were no obstructions in the driveway or yard that would have concealed a child from a driver in the street. Also, no vehicles were parked in the street.

Mrs. Troxclair testified that Cole was "pretty close" to the street when Mrs. Meyer's vehicle hit him. She said that her street curves slightly to the left in front of her house, but she did not observe Mrs. Meyer veer her vehicle, or make an evasive maneuver, until after impact.

On cross-examination, Mrs. Troxclair viewed a diagram that she had previously filled out, placing Mrs. Meyer's vehicle at least three feet into her front yard. She noted that Mrs. Meyer hit the mailbox too, which meant that she would have had to have driven up into her yard. To that extent, she said that she would disagree with Ms. Claiborne's assertion that Mrs. Meyer never left the roadway or went into the yard. She stated that she did not discuss how the accident happened with Deputy Bonds.

Mrs. Meyer was called by plaintiff under cross-examination. She acknowledged that her vehicle struck Cole and the mailbox. She denied driving into the Troxclairs' yard. She agreed that the pole of the mailbox was in the yard, but stated that the mailbox itself hung over the curb at the street, though she also admitted that she did not see the mailbox prior to striking it. She also admitted that prior to impact, she had not seen the two boys running in the front yard and there were no obstructions in the yard that would have concealed them from her. She insisted that Cole darted out into the street in front of her, and stated that after she hit him, she jerked the wheel to the right and hit the mailbox.

On direct examination, Mrs. Meyer testified that she was a respiratory therapist at two area hospitals and had lived in the neighborhood for approximately three years prior to the accident. She took this particular route every day in and out of the subdivision and was very familiar with the streets. She testified that at the time of the accident, she was returning home from dropping her daughter off at school when she saw an orange flash (Cole's shirt) in front of her car, hit him "seconds later," jerked the wheel "out of shock," and hit the mailbox, at which point she stopped her vehicle. She testified that her right front headlight hit the mailbox. All of the damage to her vehicle was on the right front side. She denied ever driving up into the grassy part of the yard, contrary to Mrs. Troxclair's testimony.

In her video deposition, Leslie Claiborne testified that she lived in the subdivision and was on her way home on the morning of the accident after dropping her daughter off at school. She did not know plaintiff or defendant, but was familiar with their vehicles as being in the neighborhood. She was driving about a car length behind Mrs. Meyer on Lake Arrowhead Drive when she saw Mrs. Meyer hit what she thought might be a person, seeing something fly above her vehicle, but because the Sequoia was large, her view of what it hit was not clear. Mrs. Meyer stopped and so did Ms. Claiborne. Once she got out of her vehicle, she saw Cole lying on the edge of the driveway, past where the mailbox would have been, as it had been knocked down. Plaintiff's mailbox and driveway were on the right side of the road. She said that the mailbox would have been in the front yard, in the grass, before the driveway. She called 9-1-1, but did not speak to the policeman on the scene. She testified that Mrs. Meyer's car was ahead of her, but "slightly off to the right" side of the road and "closer to the curb than you normally would have been." She did not remember whether Mrs. Meyer's wheels were in the grass and had no recollection of the specific parked position of Mrs. Meyer's vehicle after the accident. Ms. Claiborne did not recall seeing the children running in the driveway or street. She stated that she did not see Mrs. Meyer drive up into the grassy portion of the Troxclairs' front yard.

Ms. Claiborne testified that she could not state where Cole was prior to the impact because she could not see around the Sequoia. After the impact, she got out of her car and saw Cole lying in the driveway. She agreed that there was nothing in the yard, street, or driveway that would have obstructed Mrs. Meyer's view of the Troxclair yard and of the children running in it.

Drake Troxclair, Cole's older brother, testified in his deposition that Mrs. Meyer's car "went into the yard" for a distance of about four feet and hit Cole with its right front bumper. He said that Cole was in the front yard about ten feet from the driveway, and he landed on the edge of the driveway. Drake himself was in the driveway at the time. He saw the car coming towards them, but did not yell out because he did not think it would come that close to the yard until it did. He saw the car strike Cole, but his memory was "fuzzy" after that. He remembered that Mrs. Meyer struck Cole first and then the mailbox. He marked on a photograph where he thought Cole was in the yard when he was hit. He stated that Cole stayed in the front yard and never ran out into the street before he got hit.

Deputy Jerry Bonds testified in his deposition that he responded to the 9-1-1 call. He acknowledged that he had no independent recollection of the accident. For his deposition, he refreshed his memory of the accident with his report. He arrived on the scene at about 8:25 a.m., according to his report, and did not witness the accident. He stated that he observed the injured boy, who was in the process of being transported to the hospital, the destroyed mailbox, and Mrs. Meyer's vehicle parked in front of the house. He was told that Mrs. Meyer had struck the boy and the mailbox. He stated that Mrs. Meyer told him she was driving down the street when Cole ran out into the street in front of her. She also told him that immediately before the impact, she swerved her car to the right towards the curb and the Troxclair home. He testified that Ms. Meyer did not indicate that she saw Cole at any point before impact.

Deputy Bonds stated that the weather was clear that day and there were no obstructions in the street that would have prevented drivers from seeing the Troxclair yard as they drove down the street. He observed a vehicle parked in the driveway (the Troxclair car) that he was told was parked there the whole time. He said that Mrs. Troxclair told him she witnessed everything from inside of her car, and that Cole had not run into the street, but stayed in the driveway. He spoke with Cole at the hospital, but he had already undergone some treatment and was "out of it a little bit." He described an "island" of landscaping in the front yard of the Trosclair home site, but stated that it was far enough away from the road that it would not have obstructed a driver's view of people in the front yard.

According to Deputy Bonds, the only person who put Cole in the street at the point of impact was Mrs. Meyer. His report, however, stated that Mrs. Troxclair told him that Cole was struck in the roadway. He agreed that nothing in his investigation led him to believe that Mrs. Meyer drove up into the grassy part of the yard. He did not recall if he saw tire tracks in the yard. It was his understanding that Mrs. Meyer swerved to the right in trying to avoid hitting Cole, which led her impact with the mailbox. He did remember that Mrs. Meyer drove a Sequoia, which was large, that it was parked at the foot of the driveway, and that it had sustained damage to the right side. His written report, which contained a diagram of the accident scene including the resting place of Mrs. Meyer's vehicle, was attached to his deposition.

Thus, the trial court was faced on the one hand with the testimonies of Summer Troxclair and Drake Troxclair who placed Cole in his own front yard by the mailbox and close to the end of the driveway when Mrs. Meyer's vehicle struck him, meaning that Mrs. Meyer had driven off the roadway, or at least onto the curb at impact. On the other hand, the trial court heard the testimony of Mrs. Meyer, who testified that suddenly and without warning, Cole had run into the street, where she unavoidably hit him. All accounts of the accident placed Cole in the driveway following impact. Further, it is undisputed that Mrs. Meyer struck the Troxclairs' mailbox, which was a brick structure located at the curb, near the end of the driveway, where the yard met the street.

In brief, defendants argue that Cole violated the provisions of La. R.S. 32:212(B), which provides: "No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield." It is questionable, however, as to whether this statute actually applies to the facts of this case, as by its own title, it pertains to the right-of-way of pedestrians in "crosswalks," not to a person in a yard. In any event, the evidence presented at trial was clearly disputed as to whether Cole actually left "a curb or other place of safety and [walked or ran] into the path of [Mrs. Meyer's] vehicle which is so close that it is impossible for [Mrs. Meyer] to yield."

Defendants also cite the case of Jeansonne v. Corbett , 496 So.2d 1346 (La. App. 3rd Cir. 1986), writ denied , 499 So.2d 942 (La. 1987), which held that if a motorist is proceeding at a lawful and reasonable speed and is obeying the rules of the road as to proper lookout, he will not be held liable when a child suddenly darts into his path from a concealed position. The present case is clearly distinguishable on the facts from Jeansonne , however. In Jeansonne , a boy on a bicycle entered a rural roadway from a lane, where he was struck by a car traveling on the rural roadway. A large group of bushes, shrubbery, and a plank fence obscured the motorist's view of the entrance of the lane into the roadway. The motorist was found to be not liable for the accident. In the present case, however, while there is no evidence in the record that Mrs. Meyer was speeding, the evidence is clear that there were no obstructions in the yard or the roadway that concealed the boys in the front yard or that would have prevented Mrs. Meyer from seeing what apparently she should have seen.

La. R.S. 32:214 provides: "Notwithstanding the foregoing provisions of this Part, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway." The law is thus clear that motorists who see a child on or near a roadway owe a high duty of care and a duty to anticipate that the child, possessed of limited judgment, might be unable to appreciate impending danger, is likely to be inattentive and might suddenly place himself in a position of peril. See Jeansonne v. Corbett , 496 So.2d at 1348, citing Buckley v. Exxon Corporation , 390 So.2d 512 (La. 1980). In the present case, however, Mrs. Meyer testified that she did not see Cole until right before her vehicle struck him, even though Cole was clad in a neon orange shirt. Further, the evidence in this case was undisputed that there were no obstructions in the yard or the roadway that would have prevented Mrs. Meyer from seeing him.

After considering the record in its entirely and the applicable law, we find no manifest error in the trial court's conclusion that Mrs. Meyer was solely liable in causing the subject accident. We find that the record reasonably factually supports the trial judge's findings in its reasons for judgment that Mrs. Meyer was apparently distracted, and because of this, did not see the children running in the Troxclairs' front yard and close to the street, and that Mrs. Meyer drove too close to the curb causing her vehicle to come into contact with Cole and the Troxclair mailbox, causing injuries to Cole and damages to the mailbox.

Having found no manifest error in the trial court's factual conclusions and allocation of fault to Ms. Meyer, we further find no manifest error in the trial court's tacit finding that Cole was not comparatively at fault in causing this accident. Because the trial court's findings of fact are reasonably factually supported by the record, we affirm the judgment.

CONCLUSION

For the foregoing reasons, the judgment in favor of plaintiff is affirmed. Costs of the appeal are assessed to defendants.

AFFIRMED

      Prior to trial, plaintiff stipulated that his damages did not exceed $50,000.00, exclusive of interest and costs.

      The court awarded plaintiff $10,000.00 in general damages for Cole's injuries, plus stipulated special damages in the amount of $19,079.50 for medical expenses, and $540.49 for damages to the mailbox.

      Defendants do not appeal the amount of general damages awarded to plaintiff. Coverage by her liability insurer was stipulated, as was the amount of special damages claimed by plaintiff.

      Mrs. Troxclair testified that parking vehicles in the street was a violation of Stonebridge Subdivision policy.

      Deputy Bonds stated that he had been in law enforcement for 27 years, and in the traffic division for 16 years.

      The case appears to show that the defendant driver was driving under the posted speed limit and was otherwise in compliance with traffic laws.


source: Caselaw Access Project

author: Judge Tiffany G. Chase

license: Public Domain

text:
    Effie M. CHAISSON v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS THROUGH the REGISTRAR OF VITAL RECORDS
    NO. 2017-CA-0642
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2018
    John D. Miranda, ATTORNEY AT LAW, L.L.C., 671 Plantation Boulevard, Mandeville, LA 70448, COUNSEL FOR PLAINTIFF/APPELLANT
    Neal R. Elliott, Jr., LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, BUREAU OF LEGAL SERVICES, 628 N. Fourth Street, P.O. Box 3836, Baton Rouge, LA 70802-3836, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

Appellant Effie M. Chaisson (hereinafter "Ms. Chaisson") seeks review of the trial court's dismissal of her petition for writ of mandamus. The mandamus sought an order compelling the State of Louisiana, Department of Health and Hospitals, through the Registrar of Vital Records to restore Ms. Chaisson's minor child, G.E.C.'s original birth certificate and strike from the record the amended birth certificate. Ms. Chaisson sets forth the following assignments of error on appeal: (1) the trial court erred in dismissing the writ of mandamus to restore G.E.C.'s original birth certificate because the law did not allow the Registrar to administratively amend G.E.C.'s birth certificate; (2) the trial court erred in dismissing the writ of mandamus based on its factual finding that married couples were treated equally, regardless of sexual orientation, in the procedure employed to amend birth certificates; and (3) the trial court committed legal error in denying her original writ of mandamus and failing to make her alternative writ peremptory when the Registrar only appeared through his counsel of record.

FACTS

Ms. Chaisson and Elizabeth Ann Nelson (hereainfter "Ms. Nelson") were married in New York in December 2011, prior to legalization of same sex marriage in Louisiana. On June 28, 2014, Ms. Chaisson gave birth in New Orleans, Louisiana, to G.E.C., who was conceived via artificial insemination. G.E.C.'s birth certificate was issued on July 1, 2014, listing Ms. Chaisson as the mother, however no father was listed. On June 26, 2015, in Obergefell v. Hodges , --- U.S. ----, 135 S.Ct. 2584, 192 L.Ed. 2d 609 (2015), the United States Supreme Court legalized same sex marriage. On July 2, 2015, in Robicheaux v. Caldwell , No. CIV.A. 13-5090, 2015 WL 4090353, at *2 (E.D. La. July 2, 2015), the State of Louisiana was ordered to recognize same sex marriage.

While the parties were still married, Ms. Nelson individually applied to amend G.E.C.'s birth certificate. As proof that Ms. Nelson and Ms. Chaisson were married at the time of G.E.C.'s birth, Ms. Nelson provided Vital Records with the couple's 2011 New York marriage license. On February 13, 2017, Vital Records issued an amended birth certificate, listing Ms. Nelson as a parent of G.E.C.

PROCEDURAL HISTORY

On February 24, 2017, Ms. Chaisson filed a petition for writ of mandamus pursuant to La. R.S. § 40:33, naming the Registrar, in his official capacity, as Defendant. Ms. Chaisson sought an order to compel the Registrar to restore G.E.C.'s original birth certificate and to strike the amended birth certificate from Vital Records.

At the mandamus hearing on March 6, 2017, the Registrar waived formal service and appeared solely through his counsel of record. The trial court denied Ms. Chaisson's request to introduce testimony, including that of the Registrar, and denied the writ of mandamus. Specifically, the trial court held that the birth certificate amendment was not a discretionary decision rendered by the Registrar. Instead, the trial court determined that the Registrar treated all married couples equally, regardless of sexual orientation. The trial court specifically found that "the issue is they were married at the time of conception and delivery and the fact that they [Vital Records] treated this case the same as they would another case."

Ms. Chaisson timely filed a motion for new trial, arguing the trial court erred by failing to make the alternative writ peremptory and in denying the introduction of testimony at the hearing. On April 25, 2017, the trial court heard the motion for new trial. Ms. Chaisson argued since the Registrar failed to personally appear, he waived any objection, mandating the alternative writ be made peremptory to order the Registrar to perform the act demanded. The trial court held that the Registrar properly appeared through counsel of record, but granted the motion for new trial to allow testimony. At the conclusion of the second hearing, the trial court denied the writ of mandamus based on the evidence and testimony presented. This appeal followed.

LAW AND ANALYSIS

Authority to Administratively Amend a Birth Certificate

In Ms. Chaisson's first assignment of error, she alleges the trial court erred in dismissing the writ of mandamus because the law did not allow the Registrar to administratively amend G.E.C.'s birth certificate. Ms. Chaisson sought an order compelling the Registrar to restore G.E.C.'s original birth certificate and to strike the amended birth certificate. In the court below, Ms. Chaisson contended that the Registrar improperly amended the birth certificate based on his discretion and not the law. The issue of whether the law allowed the Registrar to administratively amend a birth certificate and whether that law was equally applied to all married couples is inextricably intertwined and will be discussed in turn below.

A trial court's denial of a writ of mandamus is reviewed under an abuse of discretion standard. "[An] appellate court will grant a writ of mandamus only when there is usurpation of judicial power or clear abuse of discretion." In addition, "findings of fact in a mandamus proceeding are subject to a manifest error standard of review." La. C.C.P. art. 3861 provides that a "[m]andamus is a writ directing a public officer ... to perform any of the duties set forth in Articles 3863 and 3864." A writ of mandamus must be used sparingly, as it is an extraordinary remedy. In the case sub judice , the writ was directed to the Registrar, under La. C.C.P. art. 3863, "to compel the performance of a ministerial duty required by law, ...." A " 'ministerial duty' is one in which no element of discretion is left to the public officer, in other words, a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law." A public official cannot be compelled to exercise discretionary authority via a writ of mandamus and a writ of mandamus will not be issued in doubtful cases.

Ms. Chaisson argues that the birth certificate was improperly amended and the mandamus should be granted to restore it. Thus, the trial court was tasked with determining whether the Registrar's original action by amending the birth certificate was discretionary or ministerial. If Vital Records had the legal authority to amend the birth certificate based solely upon the 2011 marriage license, the writ of mandamus was properly dismissed.

On February 13, 2017, Vital Records issued G.E.C.'s amended birth certificate after Ms. Nelson supplied the couple's 2011 marriage license. Vital Records maintained it administratively amended the birth certificate, relying upon 48 La. Admin. Code Pt. V, Subpart 45, Chapter 11, Section 11101(f) and La. C.C.P art. 185 to add Ms. Nelson as a parent, along with the precedent requiring equal treatment established in the cases of Obergefell and Robicheaux . Thus, once Ms. Nelson submitted the 2011 marriage license to Vital Records and represented that the parties were married at the time of the request, the amendment was proper.

48 La. Admin. Code Pt. V, Subpart 45, Chapter 11, Section 11101(f) addresses the proof necessary to alter a birth certificate, noting that to alter the information regarding the mother and father of the child "[i]nformation pertaining to the mother and father listed on the certificate may be altered with the parent(s') birth certificate(s, [sic] marriage application or child's baptismal certificate." Further, La. C.C. art. 185 creates a legal presumption that "[t]he husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage."

At the April 25, 2017 hearing, Ms. Chaisson argued that a male seeking to amend a child's birth certificate to include him as the father on the basis that he was married to the birth mother at the time the child was born must either (1) file an affidavit of acknowledgment of paternity signed by both mother and father or (2) must obtain a court order to amend the birth certificate. However, the Registrar testified that procedure only applies when amending a birth certificate of a child born outside a marriage. The Registrar described the process used to complete an original birth certificate. He testified that when a mother is admitted to the hospital, the hospital will gather pertinent information from her. If the birth mother advises that she is married, her husband's name will be listed as a parent. If Vital Records identifies the birth mother is married but her husband is not listed as a parent, a birth certificate will not be issued until Vital Records receives a marriage license. The Registrar testified that their policy was to accept a marriage license to amend a birth certificate to add a parent, if the couple was married at the time of birth or the marriage was terminated within 300 days of the child's birth. This policy does not require the consent of both parents. The Registrar maintained that there is a legal presumption that the spouse of the birth mother is also the other parent of the child, per La. C.C. art. 185. The Registrar noted that since the marriage license showed the parties were married at the time of G.E.C.'s birth, the birth certificate could be amended with the marriage license alone.

A review of the record before us shows insufficient evidence to establish that the Registrar's reliance on the marriage license as proof for amending G.E.C.'s birth certificate was improper. We further find that the evidence provided does not support the argument that the Registrar did not have legal authority to administratively amend the birth certificate. Thus, "the evidence submitted to the trial court was insufficient to support the issuance of a writ of mandamus ...." This assignment of error is without merit.

Equal Application of Procedure

Ms. Chaisson's second assignment of error is that the trial court erred in dismissing the writ of mandamus based on its factual finding that the law to amend birth certificates was applied equally to all married couples, regardless of sexual orientation. Thus, it is necessary to examine if the parties in this matter were treated equally when the Registrar amended G.E.C.'s birth certificate.

The United States Supreme Court, in Obergefell v. Hodges , mandated that Louisiana recognize same sex marriage, noting that "the right to marry is a fundamental right inherent in the liberty of the person and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty." Obergefell held state laws invalid "to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." As a result of the ruling in Obergefell , in Robicheaux , the United States District Court for the Eastern District of Louisiana issued judgment on July 2, 2015, ordering Vital Records to issue a birth certificate naming as the other parent, the non-child bearing same sex spouse of the birth mother, on their child's birth certificate.

On June 26, 2017, following judgment in this matter, the United States Supreme Court issued a decision, in Pavan v. Smith , which this Court finds instructive to this case. In Pavan, two married same-sex couples had children through an anonymous sperm donor and sought to list both parents on their children's birth certificate in Arkansas. Arkansas' Department of Health would only issue the certificate listing the birth mother and declined to include the same sex spouse as the other parent. The parents sued, arguing that a provision of Arkansas law provides that if the birth mother was married at the time the child was born, her husband's name must be listed as the father. Thus, that same right should extend to same sex parents, otherwise the law as applied would deny same sex married couples the same benefits that opposite sex married couples enjoy as a benefit of marriage. The trial court agreed, finding that the law, as applied to same sex couples, violated the Supreme Court holding in Obergefell v. Hodges . The Arkansas Supreme Court reversed the trial court. The Supreme Court granted certiorari reversing the Arkansas Supreme Court and found that "differential treatment infringes Obergefell's commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage.' " The Arkansas law at issue in that matter mandated that if the birth mother was married at conception or at the child's birth, her husband's name must be entered as the father of the child on the birth certificate. The Supreme Court noted that Arkansas state law required placement of the husband's name on the birth certificate even when the child was conceived by an anonymous sperm donor and thus not the biological father. Therefore, "Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: ... [giving] married parents a form of legal recognition that is not available to unmarried parents. [As such,] Arkansas may not, consistent with Obergefell , deny married same-sex couples that recognition."

Ms. Chaisson suggests that Obergefell and Robicheaux are not applicable, arguing that those cases are silent as to retroactive application of the law to amend birth certificates of children born to same sex married couples prior to 2015. Ms. Chaisson maintains that after those decisions were handed down, La. R.S. § 40:46.1 was amended and La. R.S. § 40:46.1 through La R.S. § 40:46.11 were enacted to address amendments of birth certificates based on a change of biological filiation. This Court recognizes that the marriage between the parties and the birth of G.E.C. occurred prior to legalization of same sex marriage in Louisiana. We agree with the trial court and the Registrar that a change of biological filiation is irrelevant in this case since Ms. Nelson clearly is not biologically related to the child. Ms. Chaisson maintains that no new rules have been established by Vital Records to address issues regarding adding a same sex parent in the situation now before this Court. At the April 25, 2017 hearing, Ms. Chaisson testified that Vital Records deviated from their own policy in adding Ms. Nelson to the birth certificate, giving disparate treatment to same sex couples. Ms. Chaisson testified that she did not consent to the amendment or have any knowledge that Ms. Nelson applied for an amendment. She also maintained that she purposefully left Ms. Nelson off the birth certificate, failing to advise hospital staff that she was married when she gave birth. Ms. Chaisson also presented the testimony of Karen Laws (hereinafter "Ms. Laws"), an employee of Ms. Chaisson, to establish there was disparate treatment under the law. Ms. Laws testified that she called Vital Records to inquire the standard procedure for amending a birth certificate to add a husband as the father. She spoke with Kathleen Crochet (hereinafter "Ms. Crochet"), who works at the Registrar's office as an amendments supervisor. Ms. Laws testified she was advised to complete an acknowledgement of paternity affidavit and return it to add her husband to the birth certificate. However, on her direct examination, she acknowledged that under the scenario she posed, she did not advise Ms. Crochet that she was married to her husband at the time the child was born. Ms. Laws also testified that Ms. Crochet inquired as to whether Ms. Laws was married before, to which Ms. Laws answered in the negative. Ms. Laws testified that Ms. Crochet did not explain the significance of the marriage question as it related to amending the birth certificate. Ms. Laws testified that Ms. Crochet did not ask any follow up questions regarding whether she was married at the time the child was born.

The Registrar maintained at the hearing that there was no disparate treatment by Vital Records in the process used to amend the birth certificate, regardless of sexual orientation. Here, the Registrar testified the name of the spouse should have been included in the original birth certificate but that information was withheld at the time of G.E.C.'s birth. The Registrar maintains the presumption of parentage for the non-child bearing spouse provided for in La. C.C. art. 185 is not biologically based but is based on the marriage contract in existence at the time of G.E.C.'s birth. Thus, the Registrar is legally required to provide equal protection to same sex couples seeking to amend a birth certificate, under Obergefell and Robicheaux.

As evidenced by the testimony of the Registrar, there was no disparate application of the procedure used by Vital Records to amend the birth certificate. The Registrar testified he extended the same benefits of marriage, i.e., the presumption that the spouse of the birth mother is also the parent of the child, regardless of biological relation. We find no merit to Ms. Chaisson's argument that the trial court committed error in dismissing her writ of mandamus because the law was not applied equally to married couples, regardless of sexual orientation.

Alternative Writ Peremptory

Ms. Chaisson's final assignment of error contends the trial court committed legal error in denying her writ of mandamus and failing to make the alternative writ peremptory when the Registrar failed to personally appear at the first hearing.

La. C.C.P. art. 3865 provides that once a mandamus is filed, the trial court must either "order the issuance of an alternative writ directing the defendant to perform the act demanded or to show cause to the contrary." The order setting the writ of mandamus for hearing in the trial court below orders the Registrar "to appear and show cause why he should not be compelled to restore the birth certificate of G.E.C. to its original form and content and strike the altered and amended birth certificate and further ordered than an alternative writ issue, directing the Registrar to restore the birth certificate of G.E.C. to its original form and strike the altered and amended birth certificate." At the March 6, 2017 hearing, the Registrar only made an appearance through counsel of record. Admittedly, the Registrar waived service of that pleading.

Ms. Chaisson argues that the trial court is required to issue an alternative writ ordering the official to restore the original birth certificate, or to appear and show cause at the initial hearing as to why the writ should not be made peremptory. The writ is either peremptory or alternative. The Registrar argues that he properly appeared through counsel at the first hearing to demonstrate the birth certificate was legally amended and he was not personally subpoenaed to testify. Though the Registrar waived formal service of the writ, nothing in the order setting the writ of mandamus for hearing commanded him to testify at the hearing.

In Wolfe v. Atkins, the trial court denied the plaintiffs petition for writ of mandamus and also failed to issue an alternative writ and set the matter for hearing, denying it ex parte . This Court reversed, finding the trial court violated La. C.C.P. art. 3865 by denying the motion ex parte and in failing to set the matter for hearing. In Naquin v. Iberia Par. Sch. Bd., the appellate court found that "the trial court is under a mandatory duty to issue the writ of alternative mandamus, which is the nature of a rule to show cause why the peremptory writ of mandamus should not issue ...." In the case subjudice, the trial court set the mandamus for hearing but declined to grant it. La. C.C.P. art. 3866 provides, "[a]fter the hearing, the court may render judgment making the writ peremptory." The use of the permissive word "may" indicates the trial court is given discretion in deciding whether or not to make the writ peremptory once a hearing is held. No testimony was allowed at the initial mandamus hearing. However, the trial court granted Ms. Chaisson's motion for new trial on that basis, allowing testimony from both the Registrar and Ms. Chaisson's witnesses. After the hearing, the trial court dismissed the writ of mandamus. The trial court found that since the Registrar appeared through counsel of record and was not subpoenaed to provide testimony at the initial hearing, it was not required to make the alternative writ peremptory based on the Registrar's failure to attend.

In addition, an appellate court will look at the totality of the record when performing a harmless error review. In looking at the totality of the record to determine whether the error was harmless, this Court has previously stated:

[T]he cumulation of trial judge errors in evidentiary rulings, coupled with other improper circumstances occurring at trial, may be so prejudicial as to deprive the parties of a fair trial, and thus may constitute reversible error, even if none of the errors considered alone would be sufficient to rise to the level of reversible error.

We find the trial court's failure to make the alternative writ peremptory at the first hearing after the Registrar failed to make a personal appearance is harmless error. The trial court corrected any error that may have existed by granting Ms. Chaisson's motion for new trial. Thus, we find no merit to this assignment of error.

Conclusion

This Court finds no merit to Ms. Chaisson's assignments of error. The Registrar testified as to the established procedure his office uses when a married couple seeks to amend a birth certificate of a child born during the marriage. This Court likewise finds no error with the trial court's finding that the Registrar consistently applied the same procedure to amend a birth certificate of a child born to a married couple, regardless of sexual orientation. Factual evidence demonstrated that the parties were treated equally and this Court does not find that the trial court committed manifest error in determining that the procedure used for same sex married couples and opposite sex married couples were equal. Therefore, we find no error by the trial court in dismissing the writ of mandamus. Finally, this Court finds no error in the trial court's decision to deny the request to make the alternative writ peremptory based on the Registrar's failure to make a personal appearance at the hearing. The Registrar appeared through counsel of record and was not subpoenaed to testify. Further, the trial court corrected any error that may have existed by granting Ms. Chaisson's motion for new trial to allow testimony at the second mandamus hearing. Therefore, we find no error by the trial court in declining to make the writ peremptory. Accordingly, we affirm the judgment of the trial court.

AFFIRMED

      The child's initials are used to protect their identity pursuant to Uniform Rules-Courts of Appeal, Rules 5-1, 5 -2.

      Devin Dewaine George, hereinafter "Registrar", is the State Registrar of Louisiana Vital Records. His office, the Office of Vital Records, shall hereinafter be referred to as "Vital Records."

      Ms. Nelson applied for an amended birth certificate on February 13, 2017.

      Ms. Chaisson's argument was made based upon La. C.C.P. art. 3866.

      Constr. Diva, L.L.C. v. New Orleans Aviation Bd. , 2016-0566, p.13 (La.App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037, writ denied , 2017-0083 (La. 2/24/17), 216 So.3d 59.

      Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans , 2000-1146, p.3 (La. App. 4 Cir. 10/3/01), 798 So.2d 1167, 1171.

      St. Bernard Port, Harbor & Terminal Dist. v. Guy Hopkins Constr. Co. , 2016-0907, p.4 (La.App. 4 Cir. 4/5/17), 220 So.3d 6, 10, writ denied sub nom. St. Bernard Port, Harbor & Terminal Dist. v. Got Hopkins Constr. Co. , 2017-0746 (La. 9/15/17), 225 So.3d 1088 (citing Hess v. M & C, Inc., 14-962, p. 3 (La. App. 3 Cir. 2/11/15), 157 So.3d 1200, 1203 ) ).

      Constr. Diva, L.L.C. , 206 So.3d at 1037.

      Constr. Diva, L.L.C. , 206 So.3d at 1037 (quoting Landis Const. Co., LLC v. Reg'l Transit Auth. , 15-0854, p. 10 (La.App. 4 Cir. 5/25/16), 195 So.3d 598, 605 ) ).

      Id.

      Grishman v. Smith , 2015-0653, p.7 (La. App. 4 Cir. 9/28/16), 202 So.3d 1036, 1040.

      Obergefell v. Hodges , --- U.S. ----, 135 S.Ct. 2584, 2604-05, 192 L.Ed.2d 609 (2015).

      Robicheaux v. Caldwell , No. CIV.A. 13-5090, 2015 WL 4090353, at *2 (E.D. La. July 2, 2015).

      Grishman, 202 So.3d at 1040.

      Obergefell v. Hodges , --- U.S. ----, 135 S.Ct. 2584, 2604-05, 192 L.Ed. 2d 609 (2015).

      Id.

      Robicheaux v. Caldwell , No. CIV.A. 13-5090, 2015 WL 4090353, at *2 (E.D. La. July 2, 2015).

      --- U.S. ----, 137 S.Ct. 2075, 2077, 198 L.Ed. 2d 636 (2017).

      Id.

      Id.

      Id.

      Id.

      Supra .

      Id.

      Id. (citing Obergefell v. Hodges, --- U.S. ----, 135 S.Ct. 2584, 2601, 192 L.Ed.2d 609 (2015) ).

      Id.

      Pavan v. Smith , --- U.S. ----, 137 S.Ct. 2075, 2078-79, 198 L.Ed. 2d 636 (2017).

      Id.

      Supra .

      2011-1481, pp., 1-2 (La.App. 4 Cir. 4/18/12), 90 So.3d 1214.

      Id.

      157 So.2d 287, 289 (La. Ct. App. 1963).

      Levy v. Lewis , 2016-0551, p.19 (La.App. 4 Cir. 5/17/17), 219 So.3d 1150, 1162, reh'g denied (May 30, 2017), writ denied , 2017-01228 (La. 10/27/17), 228 So.3d 1230, and writ denied , 2017-1171 (La. 10/27/17), 228 So.3d 1231, and writ denied , 2017-1119 (La. 10/27/17), 228 So.3d 1232.

      Fromenthal v. Delta Wells Surveyors, Inc. , 1998-1525, p.4 (La.App. 4 Cir. 10/4/00), 776 So.2d 1, 4, writ denied , 2001-0177 (La. 3/16/01), 787 So.2d 317 (quoting Dixon v. Winn-Dixie Louisiana, Inc. , 93-1627 (La.App. 4 Cir. 5/17/94), 638 So.2d 306, 312 ) ).


author: CHEHARDY, C.J.

text:
    Carlos RUSSELL and Deshannon Russell v. Michael G. JONES, Riley & Carroll Properties, Inc. and State National Insurance Company, Inc.
    NO. 17-CA-585
    Court of Appeal of Louisiana, Fifth Circuit.
    March 12, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CARLOS RUSSELL AND DESHANNON RUSSELL, Ron A. Austin, Harvey, Catherine H. Hilton, New Orleans, Lillian A. Williams, Oakland.
    COUNSEL FOR DEFENDANT/APPELLEE, SCOTTSDALE INSURANCE COMPANY, Pablo Gonzalez, Jennifer R. Kretschmann, New Orleans.
    Panel composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   CHEHARDY, C.J.

On appeal, plaintiffs challenge the trial court's ruling sustaining Scottsdale Insurance Company's peremptory exception of prescription. After review, we reverse the judgment of the trial court.

Facts and Procedural History

On July 21, 2012, Michael Jones rear-ended the plaintiff, Carlos Russell, while both drivers were waiting to unload their dump trucks in Belle Chasse, Louisiana. That day, Michael Jones was in the course and scope of his employment with Riley & Carroll Properties ("R & C"), which is owned by Ernest Riley. After the accident, State National Insurance Company ("SNIC") paid Carlos Russell a total of $8,738.52 for property damage to his vehicle.

On July 12, 2013, plaintiff and his wife filed a claim for personal injury against Jones, R & C, and their liability insurer, SNIC. On July 21, 2014, plaintiffs filed a first supplemental and amending petition to name, as a defendant, his own uninsured/under-insured motorist coverage carrier, Progressive Paloverde Insurance Company. On January 8, 2015, plaintiffs filed a second supplemental and amending petition to name Ernest Riley, the owner of the trucking company, as a defendant. On or about June 11, 2015, plaintiffs confirmed a default judgment against Michael Jones, Ernest Riley, and R & C, jointly, severally, and in solido, for $154,255.72 plus interest from the date of the demand.

In the intervening time, counsel for SNIC reported to counsel for plaintiffs that SNIC had discovered that, at the time of the accident in question, Scottsdale Insurance Company carried general liability insurance coverage for Jones, Riley, and R & C. Based on this newly discovered information, plaintiffs, on March 7, 2017, sought and received leave to file a third supplemental and amending petition for damages to assert a claim against Scottsdale Insurance Company, as insurer for defendants, Jones, R & C, and Riley, on the date of the accident in question.

On June 2, 2017, Scottsdale filed a peremptory exception of prescription, arguing that the claim against it had prescribed because the petition naming it was filed more than one year after the default judgment against its insureds had been confirmed. To its exception, Scottsdale attached the petition and supplemental petitions and the default judgment of June 11, 2015. The plaintiffs opposed the exception on the basis that the two liability insurers were solidarily liable for the damages caused by their insureds. To their opposition, the plaintiffs attached a "Loss Run" document indicating that Scottsdale insured the defendants. Finally, Scottsdale filed a reply to the plaintiffs' opposition, to which it attached its "File Notes" regarding the July 21, 2012 incident in question.

After a hearing on July 26, 2017, the trial court granted Scottsdale's exception finding:

The evidence admitted to this Court with regard to this matter does contain claim notes from a Scottsdale representative or adjustor that appears to this Court to show that the plaintiff did in fact have actual knowledge as[sic ] Scottsdale as an insurance company within days or at least a month of the date of this accident. Furthermore, a default judgment was taken against the tortfeasor and more than a year passed between that default judgment and the filing of suit against Scottsdale in March of 2017 for an action that occurred [in] 2012. Again, the Court is going to sustain the exception of prescription based on those reasons.

The plaintiffs are appealing that judgment. On appeal, plaintiffs have assigned four assignments of error: first, the trial court erred in failing to conclude that prescription was interrupted against Scottsdale because Scottsdale was solidarily liable with SNIC; second, the trial court erred in failing to conclude that plaintiffs' third amending petition related back to the original petition; third, the trial court erred in sustaining the exception of prescription based on the finding that plaintiffs had actual knowledge of Scottsdale within one year of the accident; and fourth, the trial court erred in concluding that the default judgment against some defendants more than a year before the filing of the third amending petition was a factor which mandated sustaining the exception of prescription.

This issue now before us is whether the plaintiffs' timely filed suit against SNIC served to interrupt prescription against Scottsdale, on the basis that the two insurance companies are solidarily liable for damages caused by their insureds. Scottsdale conversely argues that it is not solidarily liable with another insurer for the damaged caused by the insureds. For the reasons that follow, we find that the trial judge's ruling on Scottsdale's exception of prescription was premature.

Analysis

Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. C.C. art. 3447. The fundamental purpose of prescription statutes is to afford a defendant economic and psychological security if no claim is made timely and to protect the defendant from stale claims and from the loss or non-preservation of relevant proof. Giroir v. South Louisiana Medical Center , 475 So.2d 1040 (La. 1985).

Delictual actions are subject to a liberative prescriptive period of one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 3492. Prescription is interrupted by the filing of suit in a court of competent jurisdiction and venue. La. C.C. art. 3462.

An interruption of prescription resulting from the filing of suit continues as long as the suit is pending. LSA-C.C. art. 3463. The effect of interruption of prescription, as contrasted with suspension of prescription, is that the time that has run prior to the interruption is not counted; prescription commences to run anew from the last day of the interruption. La. C.C. art. 3466.

When prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors and their successors. La. C.C. art. 3503. While the allegation of solidary liability is pending, the exception of prescription remains premature. Etienne v. Nat'l Auto. Ins. Co. , 99-2610 (La. 4/25/00), 759 So.2d 51, 52-57.

A party urging an exception of prescription has the burden of proving facts to support the exception unless the petition is prescribed on its face. Cichirillo v. Avondale Indus., Inc. , 04-2894 (La. 11/29/05), 917 So.2d 424, 428. If prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Campo v. Correa , 01-2707 (La. 6/21/02), 828 So.2d 502, 508.

When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court's findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. Carter v. Haygood , 04-0646 (La. 1/19/05), 892 So.2d 1261, 1267. Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate courts finds that it is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La. 2/28/94), 633 So.2d 129, 132 ; Stobart v. State of Louisiana through Dept. of Transportation and Development , 617 So.2d 880, 882 (La. 1993) ; Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989).

In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id. ; Pinsonneault v. Merchants & Farmers Bank & Trust Co. , 01-2217 (La. 4/3/02), 816 So.2d 270, 278-79. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

In this matter, our review of the entire record reveals that the trial judge erred in granting the exception of prescription while the plaintiffs' allegation of solidary liability between the two liability insurers is pending. Here, the plaintiffs contend that they have not been allowed sufficient discovery to bear their burden that this action has not prescribed, including but not limited to, determining which insurance company insured the tortfeasor and his employer on the date in question, any relationship between the two insurers, and other facts to support their claim that the insurance companies in question are, in fact, solidary obligors.

Under Etienne , supra , the exception of prescription remains premature while the allegation of solidary liability is pending. Accordingly, we vacate the trial court's ruling on Scottsdale's exception of prescription as premature and remand this matter for further proceedings consistent with this opinion.

VACATED AND REMANDED.

      The trial judge memorialized this ruling in a written judgment signed on August 7, 2017.


author: BARNES, J., FOR THE COURT:

text:
    Daniel Israel SINGLETON a/k/a Daniel I. Singleton a/k/a Danny Singleton a/k/a Danny Singleton, Jr., Appellant v. Superintendent Jacquelyn BANKS, State of Mississippi and Jacquelyn Banks, Appellees
    NO. 2016-CP-01078-COA
    Court of Appeals of Mississippi.
    December 5, 2017 Rehearing Denied April 10, 2018
    ATTORNEY FOR APPELLANT: DANIEL ISRAEL SINGLETON (PRO SE)
    ATTORNEYS FOR APPELLEES: ANTHONY LOUIS SCHMIDT JR., DARRELL CLAYTON BAUGHN
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. In May 1984, Daniel Singleton was convicted by a Harrison County Circuit Court jury of attempted armed robbery and sentenced to thirty-five years in the custody of the Mississippi Department of Corrections (MDOC). He is currently incarcerated at the South Mississippi Correctional Institution (SMCI) in Greene County.

¶ 2. On December 7, 2015, Singleton filed a request through the MDOC's Administrative Remedy Program (ARP), alleging he was entitled to 206 days (later amended to 157 days) of pretrial credit for time served in a Louisiana jail. Singleton claimed that after he was arrested in Mississippi for attempted armed robbery, he was transported to Louisiana, waiving extradition. The MDOC rejected Singleton's request as untimely, noting the "[i]ncident happened in 1984 and was received in this office on 2/11/2016." Singleton filed a "petition seeking writ of habeas corpus" with the Harrison County Circuit Court on March 10, 2016, appealing the denial of his complaint by the MDOC. See Miss. Code Ann. § 47-5-807 (Rev. 2015) (providing an offender aggrieved by an adverse ARP decision has thirty days to seek judicial review). The petition was transferred to Greene County Circuit Court, the county where Singleton is incarcerated. The circuit court affirmed the MDOC's decision on July 5, 2016, finding that Singleton's grievance was untimely, as he "waited over thirty-two (32) years before filing[.]"

¶ 3. Although we find the circuit court erred in affirming the MDOC's decision that Singleton's claim was untimely, we affirm the court's dismissal of the petition as the claim is without merit. "It is well[ ]established that this Court will affirm the action of the trial court when the right result is reached, even if for an incorrect reason." Stanley v. Turner , 846 So.2d 279, 282 (¶ 12) (Miss. Ct. App. 2003).

DISCUSSION

¶ 4. The record shows that on October 28, 1983, Harrison County issued an arrest warrant for Singleton for attempted armed robbery. On November 23, 1983, the Acadia Parish Sheriff's Department in Louisiana informed the Harrison County Sheriff's Department that it had Singleton in custody on a charge of being a convicted felon with a firearm and he would, therefore, be unable to attend his court date. Singleton claims that he should be awarded pretrial credit for the 157 days he spent in jail in Louisiana.

¶ 5. The MDOC determined that Singleton's claim was untimely, and the circuit court affirmed the decision. MDOC Grievance Procedures state that an ARP "first step" letter "will be written to the ARP Director within 30 days of an alleged event." The ARP Director does have discretion, however, to waive this requirement "if circumstances warrant." Were Singleton disputing the accrual of his trusty time or an MDOC disciplinary action, we would agree with the MDOC's determination. However, Singleton's claim addresses the computation of his sentence, which if meritorious, could result in his being held in unlawful custody after his sentence has expired. In the similar context of a post-conviction-relief case, a movant's claim "[t]hat his sentence has expired; his probation, parole or conditional release [was] unlawfully revoked; or he is otherwise unlawfully held in custody" is an exception to the procedural time-bar. Miss. Code Ann. § 99-39-5(1)(h) (Rev. 2015). There is no reason why Singleton's claim should be summarily dismissed as time-barred, particularly when the MDOC's procedural thirty-day requirement is discretionary in nature.

¶ 6. Regardless, we find no merit to Singleton's argument. Mississippi Code Annotated section 99-19-23 (Rev. 2015) provides:

The number of days spent by a prisoner in incarceration in any municipal or county jail while awaiting trial on a criminal charge, or awaiting an appeal to a higher court upon conviction, shall be applied on any sentence rendered by a court of law or on any sentence finally set after all avenues of appeal are exhausted.

The Mississippi Supreme Court has held that " section 99-19-23 has no application to time served in another state while an accused is awaiting return to this State to face criminal charges." Holland v. State , 418 So.2d 73, 74 (Miss. 1982). "[T]o hold otherwise would encourage an accused to ... seek refuge in a state or locality of his own choosing, and fight extradition[.]" Id. Moreover, in Stanley v. State , 850 So.2d 154, 157 (¶ 12) (Miss. Ct. App. 2003), this Court clarified "that a prisoner actually serving time for another conviction is not, within the meaning of [s]ection 99-19-23, being held to await trial." Therefore, a defendant is "not entitled to credit for time served" while incarcerated in another state for a crime committed there, "even though there were criminal charges pending against him in this state" during the period of his confinement. Singleton was incarcerated in Louisiana, charged with possession of a firearm by a convicted felon. The record does not reflect that he was under Mississippi jurisdiction at that time. See Taylor v. State , 726 So.2d 227, 228 (¶ 8) (Miss. Ct. App. 1998) (finding defendant was not entitled to credit for time spent "serving the rest of his original Louisiana conviction or being held on the two additional Louisiana charges pending against him").

¶ 7. Accordingly, while we find Singleton's claim should not have been summarily dismissed due to untimeliness, we affirm the circuit court's dismissal of Singleton's petition, as his claim lacked merit.

¶ 8. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      The State does not dispute that Singleton exhausted his administrative remedies.

      "In applying [Mississippi Code Annotated] section 11-11-3 [ (Rev. 2004) ] to a prisoner's appeal of an MDOC decision or policy, this Court has repeatedly held that such appeals 'must be made in the circuit court of the county where the prisoner resides.' " Roberts v. Miss. Dep't of Corr. , 219 So.3d 588, 591 (¶ 9) (Miss. Ct. App. 2017) (quoting Hearron v. Miss. Dep't of Corr. , 166 So.3d 53, 55-56 (¶ 8) (Miss. Ct. App. 2015) ). Since Singleton's petition is an appeal of his ARP decision, venue is proper in Greene County, where he is incarcerated.

      Singleton did receive credit for fifty-three days he spent in Mississippi custody from April 8, 1984, through May 31, 1984, prior to his conviction.

      To argue against the timeliness issue, Singleton claims in his brief that the failure to give him credit for the days he spent in Louisiana custody subjected him to an "illegal sentence." But the essence of his argument is actually that the failure to credit him with those 157 days would result in his eventually being detained after his sentence had lawfully expired.

      We note Louisiana has provided an exception to its ninety-day requirement "between the event and the initial request" in its prison-administrative-remedy procedures for "time computation issues, ADA and PREA issues, [and] on-going medical issues." Redd v. Wilkinson , No. 1:12-CV-01534, 2015 WL 52211, *3 (W.D. La. Jan. 2, 2015) (quoting 22 La. ADC Pt. 1, § 325(I)(1)(a)(ii)(I)).


author: GRIFFIS, P.J., FOR THE COURT:

text:
    Sheila Ann JONES a/k/a Sheila Jones George, Appellant v. Michael Boyd JONES a/k/a Mike Jones, Appellee
    NO. 2016-CA-01008-COA
    Court of Appeals of Mississippi.
    March 6, 2018
    TOMMY WAYNE DEFER, Water Valley, for Appellant
    TIMOTHY BAXTER TUCKER, for Appellee
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Sheila Ann Jones brought a contempt action against Michael Boyd Jones ("Mike"), her former husband, based on his failure to comply with their divorce judgment. At the close of her case-in-chief, the Special Chancellor granted Mike's motion for a directed verdict and denied her petition. In addition, the Special Chancellor set aside the parties' divorce judgment and property-settlement agreement. We reverse, render, and remand for further proceedings as set forth in this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mike and Sheila were married for almost thirty-four years. They filed a pro se Joint Complaint for Divorce on February 6, 2012. They attached an "Agreement" to the complaint. The Agreement included provisions for child custody and support, property settlement, and spousal support, among other provisions.

¶ 3. Their "Final Decree of Divorce-Irreconcilable Differences" (the "Judgment") was presented to Chancellor Jacqueline Mask. Chancellor Mask approved and executed the Judgment on May 4, 2012. The Judgment included the same provisions that the parties had agreed to and included in their Agreement.

¶ 4. On June 3, 2015, Sheila filed a "Petition for Contempt of Court." Sheila claimed that Mike had failed to comply with the terms of the Judgment. Specifically, she asked that Mike be held in contempt and ordered to pay the amounts he owed under the Judgment.

¶ 5. On November 16, 2015, the contempt matter was set for hearing before a special chancellor. Sheila's counsel made an oral motion for a continuance, based on matters that had been discussed by the attorneys and the chancellor in chambers. Neither the discussion nor the subject of the discussion was on the record. Mike objected to the continuance, and the chancellor denied the motion. Mike's attorney then announced that Mike would assert three affirmative defenses to the contempt petition: (1) the doctrine of laches, (2) the statute of frauds, and (3) lack of consideration. No written answer was filed.

¶ 6. Sheila was the only witness who testified. She testified that their daughter prepared their divorce documents, Mike reviewed the documents, and Mike made changes to the Agreement. She also testified that Mike signed the complaint for divorce, the Agreement, and the Judgment. The two provisions in the Agreement and Judgment relevant here are:

The parties agree that [Mike] will pay [Sheila] for her share of [the] house located at 1442 Topsy Rd, Randolph, MS in the amount of $25,000.00 to be paid in monthly increments of $500.00 that are to begin when spousal support ends.
....
The parties agree that [Mike] shall pay [Sheila] spousal support in the amount of $300.00 monthly beginning with the Final Decree and lasting until remarried, but lasting no more than twenty[-]four months.

¶ 7. Sheila testified that she was offered a new job in Jackson and needed money to help with the move. Sheila offered to voluntarily waive her rights to the remaining spousal-support payments and allow Mike to commence the $500 monthly payments for her "share" of the property, if Mike would pay her two months' worth of payments ($1,000) that month.

¶ 8. Sheila testified that Mike accepted her offer. Sheila offered two checks into evidence. The first check was dated "7-6-12." It was written by "Michael B. Jones" and was payable to "Sheila Jones" in the amount of $500. The remittance line stated "# 4 House Payment." The second check was dated "7-31-12." It too was written by Mike and was payable to Sheila in the amount of $500. The remittance line read "4th of 50." Sheila then testified that Mike continued to make monthly payments of $500 until March of 2013.

¶ 9. Sheila testified that Mike paid a total of $6,000 before he stopped making these payments, and he was in arrears for a total of $19,000. Sheila also testified that she had paid attorney's fees of $1,800 to bring the contempt action.

¶ 10. On cross-examination, Mike's attorney asked Sheila about how they obtained ownership of or an interest in their house. Sheila replied that, during their marriage, they had financial issues that caused them to lose their home. As a result, they entered an agreement with Mike's parents to purchase property from them.

¶ 11. Sheila testified that the agreement with Mike's parents was for Mike and Sheila to pay $500 per month for ten years to Mike's parents. Then, after Mike and Sheila had paid $60,000 over the ten years, Sheila said that the property would be theirs. Mike's attorney then asked whether the agreement with Mike's parents had been reduced to writing. Sheila testified that "[t]here was a little yellow sheet of paper where everything was written down," but she did not have a copy of the piece of paper with her. Sheila also admitted that she did not have a deed to the property.

¶ 12. After a few rebuttal questions, Sheila rested. Mike's attorney then said, "Your Honor, we would make a motion for directed verdict, this case be dismissed as not meeting the burden of proof of contempt." Then, the Special Chancellor immediately ruled:

Well, in the question of contempt, I've heard the testimony, and because of the wording of the property settlement agreement, I'm satisfied that one of two things occurred. Either there was not a meeting of the minds or else a fraud was committed on the Court because there is a $25,000 amount, and it says for her share. It doesn't say for her interest in the house. I don't think there's any question that the parties, whether they had written documents or not, contemplated that there was something going to be paid through the divorce for whatever interest that [Sheila] may have had, whether it was for the house or for some other basis. However, the statute of frauds does say that we've got to have it in writing if it doesn't occur within 15 months or that's the way this Court interprets it. So therefore, this Court finds that as far as contempt, the motion to dismiss should be granted.
However, having heard what I've heard now, the Court feels that based on the-based on the testimony of [Sheila] ... I understand I have not heard Mr. Jones' testimony, but I don't think I've got to hear it since he's filed now an answer, whether it was ore tenus or whatever saying that he doesn't owe anything on there. This Court has no-in order to do equity and to comply with what this Court feels the law in the State of Mississippi is, that there was not a true meeting of the minds, or as I've said, there was a fraud committed on the Court by representing something that wasn't there with an amount, therefore, I'm going to set aside the divorce and property settlement agreement. I will address one matter that-based on the answer and testimony, of course, the decree itself, there's no question he's paid the $6,000. And there would have been $4,800 due under the alimony provision. Since I've set that aside, it doesn't mean quite as much except for whenever the next judge hears this, it should be allowed to credit for the alimony, not for anything else because of the fact that he owed it. And even though she, to her credit, said that she told him he didn't have to pay it as long as he paid for the house, since that's in question now, he would have owed that $300 a month for those 16 months before she got remarried. So, I'm saying all that, you either give him $6,000 credit for the house or you give him $4,800 credit for the alimony. He can't have both. Likewise, the motion for contempt is asking for the $19,000. And just so it's crystal clear, as best this Court could determine, if, in fact, I felt I could have found that they owned the property and he owed her the $25,000 as a result of the ownership of that property, there's only $9,000 that would have been owed, not the entire $25,000. Because it allowed him to pay it at $500 a month. But he was under no obligation to pre-pay it. So that-and, of course, that would need to be addressed by the judge once he hears the testimony as to making an equitable distribution. And also, just for the record, based on the fact that there was not a meeting of the minds, it's quite obvious to me that since there is this discrepancy, there could not have been a finding that distribution of the property was fair and equitable as required by the law in the State of Mississippi. So, therefore, I'm going to modify the pleadings to conform the testimony and convert this ... back to an original divorce proceeding for an equitable distribution of the property and for any other alimony or other such as may have been ... due at the time the first one was done.

¶13. On June 24, 2016, the Special Chancellor entered an order that read:

This day this cause came before the Court on the petitioner's Petition for Contempt of Court, and the Court having reviewed the court file, having heard the arguments of Counsel as well as having considered the sworn testimony presented in open court, does hereby dismiss the contempt action on the grounds of the statute of fraud. Furthermore, the Court orders and finds there was "no meeting of the minds" between the Parties at the time they executed their property settlement agreement and therefore no fair and equitable distribution of property. The Court therefore orders and sets aside the divorce decree and property settlement agreement previously entered here by the Parties therefore. This Order is hereby certified to be a final judgment pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure.

It is from this order that Sheila now appeals.

ANALYSIS

I. Dismissal of Sheila's Contempt Action

¶ 14. First, Sheila argues that it was error for the Special Chancellor to dismiss her contempt action on the grounds of the statute of frauds.

¶ 15. Before we discuss this issue, we note that when Sheila rested her case-in-chief, Mike's attorney made a motion for "directed verdict." In a bench trial, the proper motion to be made at this time is a motion for involuntary dismissal under Rule 41(b) of the Mississippi Rules of Civil Procedure. Rule 41(b) is the authority for an involuntary dismissal, and it provides:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

Mississippi Rule of Civil Procedure 50(a) is the authority for a directed verdict; it is properly made at a jury trial.

¶ 16. In Crowell v. Butts , 153 So.3d 684, 687 (¶ 6) (Miss. 2014), the supreme court ruled:

A motion for directed verdict granted by the court, sitting without a jury, is procedurally a dismissal on the merits under [ Rule] 41(b). This Court reviews a grant or denial of a Rule 41(b) motion to dismiss under the substantial evidence/manifest error standard. In considering a motion to dismiss, the trial judge should consider the evidence fairly, as distinguished from in the light most favorable to the nonmovant, and should dismiss the case if it would find for the movant. The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff's evidence were all the evidence offered in the case.

(Internal citations and quotation marks omitted).

¶ 17. Sheila's contempt petition was based on the Judgment, which had been approved and signed by Chancellor Mask. At the hearing, Sheila testified that Mike had agreed to pay her certain amounts under the Judgment, he had not paid the full amount due, and he owed her the principal sum of $19,000, plus attorneys' fees.

¶ 18. In A.M.L. v. J.W.L. , 98 So.3d 1001, 1019 (¶ 50) (Miss. 2012), the supreme court stated:

When the parties have reached agreement and the chancery court has approved it, in the absence of fraud or overreaching, this Court will enforce [the agreement]. However, a citation of contempt is proper only when the contemnor has willfully and deliberately ignored an order of the court. [T]he inquiry in a contempt proceeding is whether or not the order was violated, whether or not it was possible to carry out the order of the court, and if it was possible, whether or not such violation was an intentional and willful refusal to abide by the order of the court.

(Internal citations and quotation marks omitted).

¶ 19. The Special Chancellor ruled that the statute of frauds was a sufficient defense to Sheila's claim of contempt. Under Mississippi Code Annotated section 15-3-1(d), the statute of frauds provides that an action shall not be brought upon any agreement which cannot be performed within fifteen months of its making unless the agreement shall be in writing and signed by the party to be charged. Sheila claimed that she was entitled to $19,000 that Mike agreed to pay in the Agreement and the Judgment. It was undisputed that Mike signed the Agreement, and the Agreement was confirmed by Chancellor Mask in the Judgment. We find that the Agreement and the Judgment complied with the writing and signature requirements of section 15-3-1(d).

¶ 20. Yet, the Special Chancellor determined that he could go beyond the Judgment and consider whether there was a written agreement among Mike's parents and Sheila and Mike. This obligation was considered and finalized between the parties in the Agreement and the Judgment. Mike did not and has not filed a motion under Mississippi Rule of Civil Procedure 60 to challenge the Judgment. Moreover, there were no changes in the parties' circumstances nor did Mike file any pleadings that attacked the Judgment because of a lack of a meeting of the minds or because a fraud was committed on the court.

¶ 21. It is clear that the Special Chancellor questioned whether there was a legally enforceable contract that gave Sheila and Mike an interest in the property, which would make the property marital and subject to equitable distribution. This issue had been resolved in the Judgment. The Agreement was an enforceable contract that satisfied the statute of frauds. The Special Chancellor erroneously went beyond the Judgment.

¶ 22. Thus, we find that the Special Chancellor committed manifest error and was clearly erroneous in dismissing Sheila's contempt action. We reverse and remand Sheila's contempt action for further proceedings.

II. Setting Aside the Divorce Decree

¶ 23. Next, after only considering Sheila's testimony in the contempt action, the Special Chancellor ruled that Mike and Sheila's divorce should be set aside. Mississippi Code Section 93-5-31 provides:

The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions as it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.

¶ 24. There is simply no authority for the Special Chancellor's decision to set aside the divorce decree. Neither party asked the Special Chancellor to set aside the divorce decree. Rather, the parties were before the court only on a contempt petition. Mike made a motion for a directed verdict under Rule 50(a). The only relief allowed under Rule 50(a) was for the chancellor to either grant the motion and dismiss Sheila's petition or deny the motion and allow the contempt claim to proceed. Certainly, it was beyond the Special Chancellor's authority to set aside the divorce judgment.

¶ 25. Therefore, we find that the Special Chancellor was manifestly wrong and clearly erroneous when he set aside the Judgment and Agreement. The Special Chancellor's June 24, 2016 order that set aside the Judgment and the Agreement is reversed and rendered, and the Judgment and the Agreement are reinstated.

¶ 26. Further, the Special Chancellor was in error to find that "there was no fair and equitable distribution of property." This finding is directly contrary to Chancellor Mask's Judgment, and neither Sheila nor Mike had challenged this issue in this action. Certainly, neither Sheila nor Mike had pled or asked the Special Chancellor to set aside their divorce decree. In this decision, the Special Chancellor went far beyond the matters that were placed before the chancery court in this action.

¶ 27. The Special Chancellor further determined that Sheila and Mike had failed to reach a meeting of the minds in the formation of their agreement. This determination is contrary to the evidence presented. Sheila presented the Judgment, she testified that Mike had complied with the Judgment in paying monthly spousal support, and that Mike had agreed to begin paying $500 per month for Sheila's property interest. The Special Chancellor's order is reversed and rendered, and this case is remanded for further proceedings consistent with this opinion.

¶ 28. REVERSED, RENDERED AND REMANDED .

LEE, C.J., IRVING, P.J., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


text:
    Walter Corneilus LEWIS a/k/a Walter Cornelius Lewis a/k/a Walter C. Lewis a/k/a Walter Lewis, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01712-COA
    Court of Appeals of Mississippi.
    March 13, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. A Harrison County jury convicted Walter Lewis of one count of possession of cocaine. The trial court sentenced him as a habitual offender to six years in the custody of the Mississippi Department of Corrections (MDOC). Lewis appeals, arguing that the trial court erred in denying his Batson challenge during jury selection. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On December 16, 2014, detectives with the narcotics division of the Gulfport Police Department were making a routine patrol in an unmarked police vehicle in a neighborhood that had numerous drug complaints. The detectives observed Lewis, when he saw the detective's vehicle, toss a small green pill container to the ground which contained an "off-white rock-like object" consistent with crack cocaine. Lewis was taken into custody. Lab tests later showed the container held approximately one gram of cocaine. Lewis was charged with possession of cocaine and pleaded not guilty. He claimed the drugs were not his and he was merely waiting for a ride.

¶ 3. After a jury trial, Lewis was convicted of the charge and was sentenced to six years in the custody of the MDOC as both a habitual and subsequent offender. Lewis filed a post-trial motion for a new trial or, alternatively, a judgment notwithstanding the verdict (JNOV), raising the Batson issue, among others, but the trial court denied his motion. Lewis appeals.

ANALYSIS

¶ 4. On appeal, Lewis raises only the Batson issue, claiming the trial court used an incorrect legal standard in denying his challenge. He argues the jury composition violated his rights under the Equal Protection Clause of the Fourteenth Amendment.

¶ 5. Early in the jury selection process, the defense raised a Batson challenge after the State used its first two peremptory strikes against two African-American women. The defense claimed there was a "clear pattern" of discrimination and thus requested race-neutral reasons for the strikes. The State responded that it had already accepted an African-American female juror. The trial judge ruled that the defense had not made a prima facie case by showing the State's first two peremptory strikes were for a discriminatory purpose, overruling the Batson challenge "at this time." Jury selection was completed; the defendant never renewed his Batson objection. Ultimately, the minority composition of the twelve-person jury consisted of three African-American females and one Hispanic male, with the defendant being African American.

¶ 6. "Peremptory strikes may not be used for the purpose of striking jurors based solely on their race or gender." Talbert v. State , 125 So.3d 66, 73 (¶ 24) (Miss. Ct. App. 2013) (citing Batson , 476 U.S. at 89, 106 S.Ct. 1712 ). An appellate court reviews the trial court's Batson ruling with great deference because "finding [the] striking party engaged in discrimination is largely a factual finding." Love v. State , 229 So.3d 717, 720 (¶ 14) (Miss. Ct. App. 2017) (quoting Lynch v. State , 877 So.2d 1254, 1270 (¶ 46) (Miss. 2004) ).

¶ 7. There is a three-step analysis to a Batson challenge:

(1) the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose;
(2) once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial [or sexual] exclusion by offering permissible, race-neutral justifications for the strikes; and
(3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial [or sexual] discrimination.

Pruitt v. State , 986 So.2d 940, 942-43 (¶ 8) (Miss. 2008). In order to satisfy the first step of making a prima facie case, the defendant must produce "evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. If the defendant fails to make out a prima facie case showing a discriminatory purpose, the inquiry ends." Lomax v. State , 220 So.3d 211, 214 (¶ 14) (Miss. Ct. App. 2017) (citation omitted).

¶ 8. Here, the trial court ruled that Lewis did not satisfy the first step of his Batson challenge by showing the State's first two peremptory strikes were for a discriminatory purpose. On appeal, Lewis argues that the trial judge did not make any finding for his prima facie case. Moreover, Lewis claims the wrong legal standard was used because the trial judge focused his analysis on the one potential minority juror that was kept rather than the two potential jurors stricken by the State, in the following exchange:

[DEFENSE COUNSEL]: Judge, they have struck Ebony Simmons, a black female [juror number 33]. And then the next black we reach on the jury venire, Torra Fields [juror number 35], they use S-2.
....
[DEFENSE COUNSEL]: That clearly shows a pattern and we would press race neutral reasons for [striking potential jurors] 33 and 35.
[PROSECUTOR]: Your Honor, we've already accepted Ms. Dedeaux [juror number 32], who is the first black female.
[DEFENSE COUNSEL]: I had her down as white.
THE COURT: I did not make an observation whether she was a minority.
[PROSECUTOR]: She appeared to be that way to the State, your Honor, with her features.
[DEFENSE COUNSEL]: I wrote her down as white.
THE COURT: Ebony Simmons [juror number 33] is a minority?
[DEFENSE COUNSEL]: Black female.
THE COURT: As is [juror number] 35 [Torra Fields]?
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: All right. I don't believe accepting [juror number] 32 as a minority, and then being accepted by the State, that the defense has made a prima facie case to establish that the State is discriminating against members of a minority. So the Batson challenge at this time is overruled, subject to further review, if there [are] other members of the minority protected class [who] are stricken for cause by the State.

¶ 9. Lewis contends "[t]hat the prosecutor accepted other black persons as jurors is no defense to a Batson claim," as stated in Chisolm v. State , 529 So.2d 635, 637 (Miss. 1988). However, Chisolm , issued two years after Batson , is distinguishable from this case. In Chisolm , the defense successfully made a prima facie case for discrimination, as nine of the prosecution's ten peremptory challenges were used to exclude African Americans from the jury for an African-American defendant. Id. at 637-38. The trial court's acceptance of the race-neutral reasons given by the prosecution for the nine strikes was affirmed. Id. at 639.

¶ 10. Here, the State had only struck two jurors at the time of the defense's Batson challenge, with the court ruling that the first step of Batson had not been established; thus, the inquiry ended. While the trial judge noted one African American had been accepted at this point, the trial judge was not basing his entire ruling on this fact, but the "totality of relevant facts." The State's striking of two African-American females did not show a "pattern" of discrimination, nor did the trial judge's mention of an African American on the jury indicate an improper legal standard was applied.

¶ 11. Lewis also complains that the trial court did not seek to determine the race of juror number 32 (Ms. Dedeaux) but merely accepted the State's assertion that she was African American. We disagree. Lewis did not ask the trial court to do so. Additionally, defense counsel recognized his trial error by admitting in his post-trial motion that juror number 32 "was a very light skinned minority." We cannot hold the trial judge in error when he was, in fact, correct.

¶ 12. Ultimately, four jurors, or one-third of the jury, were minorities. The trial judge did not abuse his discretion in finding no inference of purposeful racial discriminatory intent from the State's first two peremptory strikes. Finally, the trial judge's finding of no prima facie case was a sufficient ruling-no further explanation was necessary.

¶ 13. Accordingly, we affirm the trial court's denial of Lewis's Batson challenge.

¶ 14. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      Lewis's prior felony convictions were also for possession of controlled substances.

      Defense counsel had mistakenly thought this juror was white.

      In Scott v. State , 981 So.2d 964, 969-70 (¶¶ 18, 22) (Miss. 2008), the Mississippi Supreme Court found that even when the State used nine peremptory strikes against African American potential jurors, without more facts provided by the defense, the strikes alone were insufficient to make a prima facie showing of discrimination.


text:
    Kimberly BALTIMORE v. John Byron NELSON et al.
    1150078
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Susan Wakefield CRINNIAN and The Susan Crinnian Trust v. William W. WAKEFIELD
    1140852
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    WEALTH ADVISORY GROUP, INC. v. Mickey LETSON
    1141399
    Supreme Court of Alabama.
    October 21, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven Mark HAYDEN and Angela Hayden v. The COOSA RIVER PADDLING CLUB
    1130001
    Supreme Court of Alabama.
    October 7, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    KELLOGG SALES CO. v. Kimberly BALTIMORE
    1150117
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Timothy Joel THOMAS v. Randell HEARD and Donna Heard
    1150118
    Supreme Court of Alabama.
    November 4, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Timothy Joel THOMAS v. Laura WELLS, as guardian ad litem and next friend of M.A., a minor
    1150119
    Supreme Court of Alabama.
    November 4, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE AFFIRMATIVE INSURANCE CO.
    1150166
    Supreme Court of Alabama.
    October 21, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    EX PARTE Corey GOODWIN
    1150380 (CR-14-1047)
    Supreme Court of Alabama.
    December 16, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Writ of cert. quashed.


text:
    Daniel ROTHERMEL v. HARTSELLE MEDICAL CENTER
    1150543
    Supreme Court of Alabama.
    November 18, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    LAL JIMAHARJ, LLC v. Takelia RUDOLPH, as administrator of the estate of Annie Taylor, deceased
    1150383
    Supreme Court of Alabama.
    October 28, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    ALLSTATE INSURANCE CO. v. Anthony B. DECICCO
    1150350
    Supreme Court of Alabama.
    October 14, 2016 Reh. denied December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Sonja MARSHALL v. DOTHAN PLASTIC SURGERY et al.
    1150564
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Miranda Garcia FAVELA, a minor who sues BY AND THROUGH her mother and next friend Lourdes FAVELA v. Warren W. SCOTT, M.D., et al.
    1150585
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Calvin MASSEY v. STATE
    1150636
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE MORRIS SHEA BRIDGE CO.
    1150614
    Supreme Court of Alabama.
    October 21, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    Richard A. FOUT v. Jennifer H. FRANKLIN et al.
    1150664
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    The HOMEOWNERS SEWER COMMITTEE et al. v. ECO-PRESERVATION SERVICES, LLC, et al.
    1150733
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    CLEAR IMAGE CONSTRUCTION, INC. v. R & D MANAGEMENT, LLC, et al.
    1150796
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gerald TEMPLETON, as administrator of the estate of Casimiro DeLeon Ixcoy, deceased v. MOBARK, INC.
    1150790
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nicklaus Don WARREN v. BALDWIN COUNTY COMMISSION et al.
    1150756
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Vickie SCONYERS
    1150870 (2140909)
    Supreme Court of Alabama.
    December 16, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Writ of cert. quashed.


text:
    Douglas RAY, individually and as personal representative of the estate of Pearlie Ray, deceased v. Ashley GILL, administrator of the estate of Marshall Gill, deceased
    1150884
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Roderick COOK v. Ruby Wood LUNSFORD
    1150847
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    ALTERNATIVE JUSTICE BAIL, INC. v. STATE
    1150821
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    P & P ACQUISITIONS, L.L.C. v. SE PROPERTY HOLDINGS, L.L.C.
    1150862
    Supreme Court of Alabama.
    November 4, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Melissa P. PARKER v. David P. BROOME
    1150967
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David P. BROOME v. Melissa P. PARKER
    1151043
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    GOLDEN JUBILEE, L.L.C. v. Larry T. WOODS
    1150998
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    PLEASANT BAY AMBULANCE SERVICE, INC. v. CITY OF RUSSELLVILLE et al.
    1151048
    Supreme Court of Alabama.
    November 18, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Charles Eugene RUTLEDGE and Sharon Lee Rutledge
    1150982 (2141062)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Herbert HITSON v. Betty CASON, Judge of Probate, et al.
    1151086
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE PLEASANT RIDGE HOLY CHURCH OF CHRIST et al.
    1151102
    Supreme Court of Alabama.
    October 21, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    EX PARTE Mitchell MARBURY
    1151196 (CR-14-1545)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Olusola Amimbola KUPONIYI
    1151197 (CR-14-1739)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jessi BRYAN
    1151109 (2150497)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Tony Randall WOODS
    1151187 (CR-14-1594)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.