author: CHAISSON, J.

text:
    Cameron EHSANI-LANDRY v. JEFFERSON PARISH
    NO. 17-CA-468
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CAMERON EHSANI-LANDRY, Cameron N. Ehsani-Landry
    COUNSEL FOR DEFENDANT/APPELLEE, JEFFERSON PARISH, Michael J. Power, Metairie, Loren C. Marino
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
   CHAISSON, J.

In this property zoning dispute, Cameron Ehsani-Landry seeks appellate review of a trial court judgment that denied his Petition for Relief from Denial for Rezoning from R-1A to R3 Classification and Writ of Certiorari, and affirmed the decision of the Jefferson Parish Council ("the Council") that denied his application to have the property at 2916 Destrehan Avenue rezoned. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The property at issue in this case, Lot 26, Square B of the Woodmere Subdivision in Jefferson Parish bearing municipal address 2916 Destrehan Avenue, includes a residential four-plex structure. At the time of the building's construction sometime in 1974, the area was zoned R-3 multi-family residential. Following an area study in 1994, the Council rezoned the area to R-1A, single family residential. At the time of the 1994 rezoning and in the following years, the four-plex remained occupied, and maintained a legal non-conforming use. In 2013, the tenants moved out and the building became vacant. The building remained unoccupied for more than a year and, pursuant to the Jefferson Parish Code of Ordinances Sec. 40-702, lost its legal non-conforming use sometime in late 2014. On June 25, 2015, Mr. Ehsani-Landry purchased the property.

Following a December 11, 2015 citation from the Parish Department of Inspection and Code Enforcement for performing renovation work without a permit, Mr. Ehsani-Landry filed an application with the Jefferson Parish Planning Department on December 22, 2015, to change the zoning of the property from R-1A, single family residential, to R-3, multiple family residential. The application was considered at a February 11, 2016 public hearing of the Planning Advisory Board at which time the Planning Department's zoning/land use report was presented. The report included recommendations on the application from various Parish agencies involved in zoning and land use decisions. The Department of Inspection and Code Enforcement opposed Mr. Ehsani-Landry's application because parking on the site was insufficient. The Planning Department found that the proposed rezoning was not consistent with the Parish's Comprehensive Plan and recommended a denial of the application.

The Planning Advisory Board also voted to recommend denial of the application.

At a March 16, 2016 regular meeting of the Council, it considered Mr. Ehsani-Landry's application, as well as the recommendations of the Planning Department and the Planning Advisory Board, and voted unanimously to deny the rezoning application.

On April 15, 2016, Mr. Ehsani-Landry filed a petition in the 24th Judicial District Court seeking relief from the Council's denial of his request for rezoning. Following a hearing on the petition, on September 20, 2016, the trial court issued a judgment denying the petition. Mr. Ehsani-Landry now appeals that judgment, raising multiple assignments of error, which we consider in globo in our discussion below.

DISCUSSION

We first address Mr. Ehsani-Landry's ninth assignment of error: that the trial court erred in not granting a rehearing before the Council because he did not receive mailed, written notice of the Council meeting at which his application for rezoning was considered. Under the Jefferson Parish Code of Ordinances Sec. 40-878, which articulates the public hearing and notice requirements for zoning applications, the Parish is not required to mail written notice to rezoning applicants of Council meetings. Those meetings are governed by the Open Meetings Law as codified in La. R.S. 42:19, et seq. Jefferson Parish introduced evidence that the Council properly published and advertised its meetings, including the one where Mr. Ehsani-Landry's application was considered, in compliance with the Opening Meetings Law. Therefore, we find that the trial court properly denied Mr. Ehsani-Landry's request for a rehearing before the Council based on a lack of notice.

In his second assignment of error, Mr. Ehsani-Landry argues that the trial court erred in failing to find the 1994 Planning Department Zoning Study to be "biased and fatally flawed." Jefferson Parish points out that Mr. Ehsani-Landry failed to raise this issue before the trial court, but rather raises it for the first time on appeal.

Uniform Rules, Courts of Appeal, Rule 1-3 states:

The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by LSA-Const. Art. 5, § 10 (B), and as otherwise provided by law. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.

In this instance, Mr. Ehsani-Landry did not raise the issue of bias or fatal flaws in the 1994 Planning Department Zoning Study either in his petition or at the hearing before the trial court. Therefore, this Court will not consider this assignment of error.

We next consider the issues raised in Mr. Ehsani-Landry's first, fourth, fifth, sixth, and seventh assignments of error, which may be summarized as follows: first, he argues that the trial court erred in not extending the one-year period set forth in Jefferson Parish Code of Ordinances Sec. 40-702 to allow for the continuation of a nonconforming use following foreclosure proceedings. Next, he argues that the trial court erred in failing to find that the 1994 rezoning was an unconstitutional taking that substantially damaged the value of his property. As to these issues, we find that Mr. Ehsani-Landry lacks standing to bring either of these arguments before the Court.

Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. Addressing the first argument, Mr. Ehsani-Landry contends that by failing to toll the statute of limitations, Jefferson Parish Code of Ordinances Sec. 40-702 prejudices third parties, including bona fide lien holders and others with security rights in the properties which lose their nonconforming uses under that statute. It is undisputed that Mr. Ehsani-Landry had no ownership interest or property rights in the property until he purchased it by Warranty Deed in Lieu of Foreclosure from the Bank of New York Mellon on June 25, 2015. Therefore, he had no property rights that could have been damaged when the nonconforming use was lost in December 2014, prior to his purchase. Our courts have long recognized that under the subsequent purchaser rule, a property owner has no right or actual interest in recovering from a third party for damage which was inflicted on the property before his purchase, in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted. Eagle Pipe & Supply, Inc. v. Amerada Hess Corp. , 10-2267 (La. 10/25/11), 79 So.3d 246, 256-7. Mr. Ehsani-Landry introduced no evidence of an assignment of rights, and therefore the trial court was correct in denying the relief requested in the petition based upon this argument.

Mr. Ehsani-Landry also contends that it was error for the trial court to not find that the rezoning was an unconstitutional taking and thus award him damages. A person's right to property is protected under both the Fifth Amendment of the United States Constitution ("... nor shall private property be taken for public use, without just compensation ...") and Article I, § 4 of the Louisiana Constitution ("[p]roperty shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit."). Mr. Ehsani-Landry argues that the 1994 zoning ordinance, which rezoned the property with a four-unit multifamily dwelling from R-3 to R-1A, allowing only for single family dwellings with one unit, substantially diminished the value of the property. Again, it is undisputed that Mr. Ehsani-Landry had no ownership rights or interests in the property until he purchased it on June 25, 2015. Therefore, under the same provisions of the previously articulated subsequent purchaser rule, Mr. Ehsani-Landry has no right to recover compensation for a taking which may have occurred twenty-one years prior to his purchase. We find that the trial court was correct to deny the relief requested in the petition based upon this argument.

Lastly, we address Mr. Ehsani-Landry's third assignment of error that the trial court erred in not finding that the Council's decision to deny his rezoning request was arbitrary and capricious. In a strikingly similar case involving the rezoning of properties with four-plex structures in the same Woodmere neighborhood, TTC Props. v. Par. of Jefferson , 17-363 (La. App. 5 Cir. 12/27/17), 237 So.3d 62, 2017 WL 6603818, 2017 La. App. LEXIS 2428, this Court articulated the applicable standard of review of a trial court's judgment on a petition for relief from the Council's denial of an application for rezoning, as follows:

The authority to enact zoning regulations flows from the police power of each governmental body. Therefore, a prima facie presumption of validity attaches to zoning board actions ... In a zoning dispute, the petitioner bears the heavy burden of proving that the action taken by the Parish Council in denying the application for a zoning change was arbitrary and capricious. On appellate review, the court's inquiry is limited to the reasonableness of the Council's decision to deny the request for rezoning; it does not consider whether the district court manifestly erred in its findings.

Id. , quoting Shaw v. Jefferson Par. , 15-453 (La. App. 5 Cir. 2/24/16), 186 So.3d 1181, 1184-85.

Like the plaintiff in TTC Properties , Mr. Ehsani-Landry argues that the Council acted arbitrarily and capriciously in denying his rezoning request because rezoning requests for similarly situated properties in the same neighborhood were previously granted. In TTC Properties , we found that, even though there were many similarities between the plaintiff's rezoning applications, which had been denied, and other prior rezoning applications, which had been granted, the plaintiff failed to meet his burden to show that the Council's denial was arbitrary and capricious, because the action was rationally related to the health, safety, and general welfare of the public.

In its written reasons for judgment, the trial court found that Mr. Ehsani-Landry failed to meet his burden to show that the Council acted in an arbitrary and capricious manner. Specifically, the trial court found that the Council's decision to deny Mr. Ehsani-Landry's application was rationally related to the general welfare of the public in light of the evidence presented showing that the Council relied on the recommendations of the Planning Department and Planning Advisory Board to fulfill the objectives of the Comprehensive Plan. After careful review of the record in this matter, we agree with the conclusion of the trial court that Mr. Ehsani-Landry failed to meet his burden of establishing that the Council's decision to deny his application was arbitrary and capricious. In response to Mr. Ehsani-Landry's argument that the Council's decision was arbitrary and capricious because it had approved prior applications for rezoning of similarly situated properties in the same neighborhood, Jefferson Parish introduced written reports from the Planning Department and Planning Advisory Board, as well as the news reports of incidents of violent crime in the neighborhood, to establish that the Council's decision was a reasonable one, rationally related to the health, safety, and general welfare of the public. In particular, Jefferson Parish introduced evidence of the July 2013 murder of a six-year-old child whose body was found in a garbage can in the same block as the four-plex that is the subject of this litigation. Jefferson Parish also introduced newspaper articles indicating that police and parish officials cited vacant four-plexes in the neighborhood as conducive to criminal activity and a threat to public safety. Mr. Ehsani-Landry failed to introduce any evidence which controverted Jefferson Parish's evidence or which overcame the prima facie presumption of the validity of the Council's decision. Accordingly, we find that judgment was properly rendered in favor of Jefferson Parish.

DECREE

For the reasons stated herein, we affirm the judgment of the trial court dismissing Mr. Ehsani-Landry's petition with prejudice.

AFFIRMED

      Mr. Ehsani-Landry's eighth assignment of error, that the trial court erred in not issuing written reasons for judgment, is moot. The record indicates that the trial court issued Written Reasons for Judgment on October 18, 2016.


source: Caselaw Access Project

author: LILJEBERG, J.

license: Public Domain

text:
    Ray ESKINE and Sondra Eskine v. The CITY OF GRETNA
    NO. 17-CA-542
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, RAY ESKINE AND SONDRA ESKINE, Brian L. Reboul, John B. Krentel
    COUNSEL FOR DEFENDANT/APPELLEE, THE CITY OF GRETNA, Jeffery P. Brothers, Mark C. Morgan, David L. Colvin
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

Plaintiffs appeal a summary judgment rendered in favor of defendants, dismissing plaintiffs' lawsuit against them. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from a slip and fall accident that occurred in front of plaintiffs' home, located at 1902 Hancock Street in Gretna, at approximately 4:30 p.m. on July 10, 2014. At the time of the accident, plaintiff, Ray Eskine, was 58 years old, permanently disabled, and required a walker to walk around. According to Mr. Eskine, he wanted to see how high the grass was on his lot across the street, so he began to traverse an elevated walkway over a drainage ditch in front of his house, when the front left wheel of his walker slipped or rolled off the left side of the walkway, causing Mr. Eskine to fall into the ditch and suffer personal injuries.

Mr. Eskine and his wife, Sondra Eskine, filed this lawsuit against the City of Gretna ("Gretna") and its liability insurer, Atlantic Specialty Insurance Company ("Atlantic"), alleging that the walkway over the drainage ditch, which extends from the sidewalk to the street, was defective and presented an unreasonably dangerous condition. They asserted that the walkway was in the care, custody, and control of Gretna, and that Gretna had actual and constructive knowledge of the defective condition of the walkway. Thus, plaintiffs sought damages from these defendants for the injuries sustained by Mr. Eskine.

Defendants answered the lawsuit and subsequently filed a motion for summary judgment, seeking dismissal of plaintiffs' claims against them. In their motion for summary judgment, Gretna and Atlantic asserted that they are entitled to summary judgment, because plaintiffs cannot show that the alleged condition of the walkway created an unreasonable risk of harm. Further, they asserted that the condition of the walkway was open and obvious, and that Mr. Eskine did not exercise reasonable care. In support of their motion for summary judgment, defendants submitted several exhibits, including photographs, excerpts from the deposition testimony of both plaintiffs and Mr. Eskine's doctor, as well as an affidavit and excerpts from the deposition testimony of Daniel Lasyone, the Director of Public Works for Gretna.

In his deposition, Mr. Eskine testified that he grew up at 1902 Hancock Street and has lived there for "just about" his whole life. He stated that he became disabled and began using his walker approximately 20 years ago. Mr. Eskine stated that the walkway where he fell was constructed approximately 30 years ago, and asphalt was put on the walkway approximately 20-25 years ago when the street was repaved. According to Mr. Eskine, the walkway was defective because it was too narrow, had too much slope and angle, was uneven and concave, and the asphalt was brittle and breaking off. Mr. Eskine testified that the defective condition of the walkway existed for 20-25 years, and the asphalt started crackling and crumbling at least 15 years prior to his fall. He testified that Gretna employees have been around the property and should have noticed this defective condition and repaired it before the accident. Mr. Eskine admitted that he was aware of the "deteriorated condition" of the walkway before the fall, noting "[y]ou can look at it and see." Mr. Eskine stated that he would typically avoid using the walkway due to its defective condition, and he would use the driveway instead to approach the street. In fact, he stated that he only walked across this walkway two or three times in 20 years.

Mr. Eskine stated that on the day of the accident, it had just stopped raining when he decided to check on the grass at his lot across the street. At the time of the accident, Mrs. Eskine's truck was parked at the end of the driveway and was blocking it, so he decided to use the walkway and not approach the street via the driveway, as he normally would. He admitted that he could have used an alternate route, but "it's a long walk to go all the way around there" and he decided to "go ahead and get out." He stated that at the time of his fall, there was nothing preventing him from seeing the alleged defective condition of the walkway or the path he was using.

In Sondra Eskine's deposition, she stated that she has lived at 1902 Hancock Street for at least 30 years and that the walkway over the drainage ditch had been in an obvious deteriorated condition for several years prior to Mr. Eskine's fall. She stated that Gretna employees, such as those who came out to "read the meter" each month, should have noticed that the walkway was defective. Mrs. Eskine testified that Mr. Eskine has a "frequency to fall" and that his legs "give out on him," so she tells him to let someone know when he is going down the steps or off the porch. On the day of the accident, Mr. Eskine did not tell anyone he was leaving the porch. Prior to the accident, Mrs. Eskine used the walkway twice a week to put out their garbage cans, but Mr. Eskine would typically use the driveway to go to the street because it is wider and safer. Mrs. Eskine testified that she had parked her blue truck on the street, blocking the driveway, on the day of the accident, because she was lending the truck to someone who "won't back out the driveway."

In the affidavit of Daniel Lasyone, the Director of Public Works for Gretna, he stated that Gretna did not receive or have any knowledge of any complaints regarding the walkway condition prior to the incident that is the subject of this lawsuit.

Plaintiffs filed a memorandum in opposition to defendants' motion for summary judgment, arguing that although they knew the walkway was defective, the defective condition of the walkway was not open and obvious to everyone who encountered it. They argued that the width of the walkway was less than 48 inches and the flat surface was less than 23 inches, which is in violation of Gretna's Code of Ordinances, and Mr. Eskine was not aware that the walkway did not comply with the city requirements. They also argued that the defective condition of the walkway could not have been open and obvious, because Gretna employees who cut grass, cleaned the ditches, and read the water meters never reported it.

In support of their position, plaintiffs each submitted an affidavit, in which they indicated that they were not aware prior to the accident that the walkway was required to be 48 inches in width. They both stated that they did not measure the width of the walkway prior to the accident, and did not know it was only 39 inches until April of 2017. Plaintiffs also submitted an affidavit from Nick Cammarata, who is a registered professional engineer. In his affidavit, Mr. Cammarata stated that the width of the flat top surface of the walkway is only 18-20 inches, and the front wheels of Mr. Eskine's walker are 22 inches apart. Mr. Cammarata opined that the limited flat surface of 18-20 inches did not comply with various building codes or accessibility standards and was not open and obvious.

The trial court held a hearing on defendant's motion for summary judgment on June 27, 2017. After counsel for the parties introduced evidence and made their arguments on the record, the trial judge granted summary judgment in favor of defendants, finding that "the condition was open and obvious." Thereafter, on July 6, 2017, the trial judge signed a written judgment, granting defendants' motion for summary judgment and dismissing plaintiffs' claims against them with prejudice. It is from this judgment that plaintiffs have filed the instant appeal.

LAW AND DISCUSSION

On appeal, plaintiffs argue that the trial court erred by granting summary judgment in favor of defendants. They assert that there was a hidden defect in the walkway, as it was not apparent that the flat top surface of the walkway was only 18-20 inches in width. Plaintiffs assert that the defective condition of the walkway was not open and obvious, noting that no Gretna employee ever reported it, despite their duty to report dangerous conditions on city property.

Defendants respond that a complained-of condition does not present an unreasonable risk of harm if that condition should be open and obvious to all who exercise reasonable care. They argue that Mr. Eskine admitted there was nothing preventing him from seeing the walkway at the time of his fall, and that he failed to exercise reasonable care when he attempted to traverse the walkway.

Appellate courts review summary judgments de novo using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University , 591 So.2d 342, 345 (La. 1991) ; Stone v. Lakes of Chateau North, L.L.C. , 16-529 (La. App. 5 Cir. 12/14/16), 208 So.3d 1053, 1057, writ denied , 17-87 (La. 2/24/17), 216 So.3d 59. Summary judgment will be granted if the motion, memoranda, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Luther v. IOM Co., L.L.C. , 13-353 (La. 10/15/13), 130 So.3d 817, 822. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point to an absence of factual support for one or more elements essential to the adverse party's claim. La. C.C.P. art. 966(D)(1). The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or to prove that the mover is not entitled to judgment as a matter of law. Id.

In determining whether a genuine issue of material fact exists, we must consider the substantive law governing the litigation. In actions against a public entity, the plaintiff must show that the thing which caused the damage was in the custody of the defendant, that the thing was defective because it had a condition which created an unreasonable risk of harm, that defendant had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and that the defect was the cause in fact of plaintiff's injuries. Casborn v. Jefferson Par. Hosp. Dist. No. 1 , 11-1020 (La. App. 5 Cir. 5/22/12), 96 So.3d 540, 543. Courts have adopted a risk-utility balancing test to determine whether a condition is unreasonably dangerous, wherein the trier of fact balances the gravity and risk of harm against the individual and societal utility and the costs and feasibility of repair. Chambers v. Village of Moreauville , 11-898 (La. 1/24/12), 85 So.3d 593, 597-98.

Defendants generally have no duty to protect against an open and obvious hazard. Eisenhardt v. Snook , 08-1287 (La. 3/17/09), 8 So.3d 541, 544. The obviousness and apparentness of a potentially dangerous condition are relevant factors to be considered under the duty-risk analysis. Pitre v. Louisiana Tech University , 95-1466 (La. 5/10/96), 673 So.2d 585, 590 ; Watts v. Scottsdale Ins. Co. , 45,397 (La. App. 2 Cir. 6/30/10), 43 So.3d 266, 269. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendants may owe no duty to the plaintiff. Eisenhardt , supra ; Watts , supra .

A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care. Handy v. City of Kenner , 12-135 (La. App. 5 Cir. 6/28/12), 97 So.3d 539, 542. Summary judgment is not precluded in cases where the plaintiff is unable to produce factual support for his claim that a complained-of condition is unreasonably dangerous. Allen v. Lockwood , 14-1724 (La. 2/13/15), 156 So.3d 650, 652.

In opposition to defendants' motion for summary judgment, plaintiffs cite Broussard v. State, through Office of State Bldgs. Div. of Admin. , 12-1238 (La. 4/5/13), 113 So.3d 175, 188, in which the Louisiana Supreme Court held that in order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition. They argue that even though Mr. Eskine thought the walkway was defective, the defective condition was not open and obvious to everyone who encountered it. Further, he argues that it was not open and obvious, even to him, that the walkway did not meet the requirements of the city ordinances.

The Broussard case involved an elevator that malfunctioned and caused a misalignment of one and one-half inches in an office building owned by the State. Although Mr. Broussard himself was familiar with the building and knew its elevators intermittently stopped at a level uneven with the building's floors, the Court found that a reasonable basis existed to support the jury's determination that a one and one-half inch offset between the floor of the elevator and the floor of the building's lobby presented an unreasonable risk of harm. Broussard , 113 So.3d at 193-94. The Court noted that it was "not addressing an ordinary slip and fall case, wherein we generally state pedestrians must exercise ordinary care, keeping in mind irregularities frequently exist in sidewalks." Id. at 187. In finding the condition of the elevator to be an unreasonable risk of harm that was not open and obvious to all, the Court noted that there is a heightened degree of care upon elevator owners and that "pedestrians do not ordinarily anticipate irregularities, such as the offset in question, when entering and exiting elevators." Broussard , 113 So.3d at 187.

In support of their position that they are entitled to summary judgment, defendants cite the post- Broussard case of Bufkin v. Felipe's La., L.L.C. , 14-288 (La. 10/15/14), 171 So.3d 851, in which the Louisiana Supreme Court considered whether a construction dumpster was an open and obvious hazard or posed an unreasonable risk of harm, and found that summary judgment in favor of the defendant was appropriate. In Bufkin , the plaintiff was a pedestrian who collided with a bicyclist when he stepped out into the street from behind a construction dumpster that had been placed near the sidewalk. The plaintiffs filed suit against the contractor who placed the dumpster, claiming that the dumpster blocked his vision and created an unreasonable risk of harm. The Louisiana Supreme Court decided that the contractor was entitled to summary judgment, finding that any vision obstruction caused by the dumpster to a pedestrian crossing the street was obvious, apparent, and reasonably safe for persons exercising ordinary care and prudence. Bufkin , 171 So.3d at 858.

Recently, in Morel v. Cheema Props., L.L.C. , 16-666 (La. App. 5 Cir. 4/12/17), 216 So.3d 383, writ denied , 17-787 (La. 9/22/17), 228 So.3d 742, this Court addressed a similar issue and affirmed a summary judgment granted in favor of defendant. In Morel , an elderly plaintiff who walked with a cane was injured when she tripped and fell on a hose at a gas station. In her deposition, Mrs. Morel stated that she frequently went to this gas station and always went inside to pay for her gas before pumping it. On the morning that she fell, she noticed two hoses next to the curb in front of the store where she had to go in. According to Ms. Morel, when she exited the store, the two hoses were separated, which created a "problem" for her to cross with her cane. After unsuccessfully looking for another path and trying to move the hoses with her cane, Ms. Morel decided to go forward with her cane over the hoses, because she had "things to do." As she tried to step over the hoses, Ms. Morel's right foot "caught the hose" and caused her to fall and sustain injuries. Morel , 216 So.3d at 384.

In Morel , defendants moved for summary judgment arguing that the hoses were open, obvious, and plainly visible to all who encountered them and, thus, they did not pose an unreasonable risk of harm to persons exercising ordinary care for their own safety. The trial court granted summary judgment, finding that the hoses were open and obvious. On appeal, this Court affirmed, stating:

...it was plaintiff's impatience, not defendant's failure to warn of an alleged hazard, which caused plaintiff to fall. The most significant undisputed fact in this case is that plaintiff saw the hoses and was aware that the hoses could cause her to fall. Given her physical limitations, a prudent person would have exercised whatever caution was necessary under the circumstances to avoid the risk she recognized was created by the alleged hazard.

Morel , 216 So.3d at 388.

In the present case, like the plaintiff in Morel , Mr. Eskine had mobility issues. He testified that he was permanently disabled and had used a walker for approximately 20 years. Unlike Morel , where the alleged defective condition was not always present, Mr. Eskine was aware of the location and condition of the walkway in front of his house, where he had lived all of his life. Mr. Eskine testified that he was aware of the "deteriorated condition" of the walkway before the fall, noting "[y]ou can look at it and see." According to Mr. Eskine, he would usually use the driveway to approach the street instead of the walkway, due to its defective condition, and he had only walked across this walkway two or three times in 20 years. Although Mr. Eskine was not aware of the width requirements or the precise width of the walkway or its flat surface, there was no evidence that his view of the walkway was obstructed or that there was any hidden defect. Mr. Eskine, or anyone who encountered the walkway, could see how wide the walkway was before deciding whether to cross at that location.

Mr. Eskine, who had physical limitations, used a walker, and typically used an alternate route to approach the street due to the walkway's condition, should not have attempted to cross the walkway with his walker. Mr. Eskine asserts that the walkway width was unknown to him when he attempted to cross it. The width between the front wheels of the walker, approximately 22 inches, was apparently too great for him to successfully cross the walkway. A prudent person would have exercised whatever caution was necessary under the circumstances to avoid the risk created by the alleged hazard.

Based on our de novo review of the memoranda in support of and in opposition to the motion for summary judgment, along with the exhibits and the applicable law, we find no genuine issue of material fact and that defendants are entitled to judgment as a matter of law. Accordingly, we agree with the trial court's decision to grant defendants' motion for summary judgment and dismiss plaintiffs' case against them.

DECREE

For the foregoing reasons, we affirm the summary judgment granted in favor of defendants, dismissing plaintiffs' claims against them.

AFFIRMED


author: GREMILLION, Judge.

text:
    Joe RICHARD v. Eugene GUILLOTTE
    17-900
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 2018
    Michael W. Campbell, Caffery, Oubre, Campbell & Garrison, L.L.P., 100 E. Vermilion St., Suite 201, Lafayette, LA 70501, (337) 232-6581, COUNSEL FOR PLAINTIFF/APPELLANT: Joe Richard
    Leon J. Minvielle, III, Haik, Minvielle & Grubbs, P. O. Box 11040, New Iberia, LA 70562-1040, (337) 365-5486, COUNSEL FOR DEFENDANT/APPELLEE: Eugene Guillotte
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   GREMILLION, Judge.

The plaintiff/appellant, Joe Richard, appeals the trial court's judgment awarding him $500 and court costs. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Richard is the owner of a metal building located in New Iberia, Louisiana, which was leased to the defendant/appellee, Eugene Guillotte, for a period of about fifteen years ending in November 2015. Guillotte operated a collision repair and auto sales shop. In January 2011, a fire accidentally occurred in the building when a truck floorboard ignited from sparks emitted while Guillotte was welding.

Richard filed a petition for breach of contract on rent agreement in June 2016, alleging that Guillotte owed him $1,734.75 for the removal of a sign, $6,792.00 for a damaged overhead door, $36,780.00 for replacement of a metal roof and metal walls, and $966.00 in back rent.

Following an April 2017 trial, the trial court awarded Richard $500.00 for remaining smoke damage related to the welding fire and cast him with all court costs. Richard now appeals. For the following reasons, we affirm.

ASSIGNMENTS OF ERROR
1. The trial court's denial of awarding Appellant the property damages resulting from the fire in the amount of $36,780.00 was manifest error and clearly wrong.
2. The trial court's award of only $500.00 in damages to the Appellant was manifest error and clearly wrong.
3. The manifest error and clearly wrong Judgment of the trial court warrants a de novo review of the record which supports a finding of liability and damages in favor of Appellant with Appellee to pay all court costs.

DISCUSSION

Manifest Error

The supreme court summarized the manifest error standard of review:

This court has announced a 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). See Mart v. Hill , 505 So.2d 1120, 1127 (La.1987). 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 findings. See id. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. See id.

Lobell v. Rosenberg , 15-247, p. 10 (La. 10/14/15), 186 So.3d 83, 90.

A trial court is in a better position to make credibility determinations as it has the benefit of examining the nuances of a witness's testimony and demeanor. Lopez v. Lopez , 00-660 (La.App. 3 Cir. 11/2/00), 772 So.2d 364.

The trial court set forth oral reasons for its findings at the conclusion of trial. First, it found no rent was due because it had been paid through October 15, 2015, with the rent for the month of November having been bartered for a clear coat application by Guillotte to a car owned by Richard. Therefore, the claim for back rent was dismissed. The trial court further found that the damages to the overhead door pre-existed the fire based on the testimony, the chain system used to raise and lower it, and the "constant" calls to have it repaired. Therefore, damages related to the overheard door were dismissed as the trial court found "they probably existed prior to the Guillottes taking possession of the place." Relating to the sign, the trial court found Richard failed to prove that it was not a gift given to Guillotte by Richard. Therefore, it dismissed any claims relating to the sign.

Relating to the smoke damage, the trial court found:

[T]here's no doubt that the cause of any damages to this building, the remainder of it ... the fire damage ... was definitely caused by Eugene Guillotte welding on a vehicle inside that building for its intended purposes, okay? ...[T]he vehicle overheated, and it caught on fire, and that's what caused the damages to the building[.]
....
The court finds that the condition of the building, as demonstrated in Defendant's Exhibit 1, is the manner in which it was as of November 15, 2015, the day that the Guillottes exited the building in question. The lighting was repaired, and the building was pressure-washed. It looks like the entire-that entire section of that building did receive some soot damage to the-probably to the inside of the whole building, the purlings, the rafters, the plastic that holds up the-that rests on the purlings which holds up the insulation. Exhibit 9 reflects it very well ... and P-7 and P-8. P-8 shows the damage to the lighting. Exhibit 9 shows the lighting repaired.
Defense Exhibit Number 1 shows the lighting repaired and soot removed from the rafters and the purlings and from the walls and from the plastic leaving-there's a little bit of gray on that plastic[.] ...
....
I'm going to assess you at $500 cost for leaving that gray on that plastic, okay, because you messed up the aesthetics of the building. Even though it is an industrial building for mechanic work, okay, it should still look pretty, because mechanics are people too.
....
James Stewart testified he did the assessment. The estimate of the damage is $36,378. And since then, the materials to repair the building have increased by eight percent. He inspected the building in March of 2016. He personally physically inspected the building and found heat damage to the roof. He has no idea if it was leaking. He doesn't know if the building itself had burned.... The area that needed replacement of roof materials was put in the quote. He never visited the building before 2016.
He did testify that the structure underneath the metal structure, the purlings and I guess the rafter beams, structural-eave struts, that's what they call them-needed to be replaced, because they got so hot the paint melted on them.
He also testified that the metal on top of the roof-remove and replace thirty-two feet by two hundred twenty-five foot roof with new three-inch insulation and twenty-six gauge RP galvalume aluminum in the amount of $21.600-that was damaged by the fire.
I don't understand-but I see no evidence of that other than his testimony. I've seen no photographs of damage to the metal. I find it hard to believe that the metal could be damaged, but the plastic underneath it was not damaged. But yet, then again, the purlings and the struts that were holding up the plastic got so hot the paint melted on them. But yet the plastic was not damaged. I find that incredible.
It says the front wall-needed to replace thirty-one sheets and the door trim on the OHD, $3,200. No, it just needs to be pressure-washed.
Same thing for the back wall. Replace seventy-five sheets in the amount of $7,655. What were the sheets made of? What type of material?
Inside first bay, purlings and eave struts, $4,325. I don't see where there's a need for that.
I do not give this man any credibility whatsoever. He certainly didn't develop his report. I don't know what type of materials that needed to be used to replace thirty-one sheets and door trim on the front wall. If plastic didn't melt, what happened-what caused-and what kind of damage was that? Smoke damage. And that's been cleaned with a pressure washer.
So I'm denying his claim for damages which he's seeking, the $36,780 for damages to the building.
And he says on redirect the building probably leaks, because the neoprene washer between the screw that pushes down the metal onto the purlings or the struts, okay, the neoprene washer would have melted. If the building would have melted, well, the washer would have melted. So he assumes that the washer melted, and it would cause a lot of water damage and leaking constantly. The testimony is, since that date-I didn't hear testimony from the owner that the roof leaked. And I heard testimony from the defendant and his sister that he called as a witness; the roof never leaked. So his credibility with me is not doing well.... So I discount his report completely.

The following testimonial evidence was presented at trial:

Guy Bonin

Bonin, the Iberia Parish Fire Chief, testified that he arrived at the scene of the fire at Gene's Collision in January 2011. He noted damage to a truck, car, and the building itself. Bonin said there was smoke damage and heat damage to the metal because "the metal may have been buckled a little bit on the roof top." However, he did not inspect the roof.

Corey Leblanc

Leblanc, a captain in the Iberia Parish Fire Department, was also on scene the day of the fire. His report noted that the department "[f]ound heavy smoke showing from a metal building with vehicle fully engulfed." He described the damage as smoke damage except for the metal roof immediately above the car that was engulfed, which suffered heat damage. Leblanc, however, did not conduct an inspection of the roof and did not recall if there was insulation below the roof line.

Michael Vincent

Vincent, a deputy fire chief with the Iberia Parish Fire Department, testified that upon arrival "They had a couple of vehicles on fire, a lot of black smoke coming out the building from open garages." He said he noticed the heat damage on the interior ceiling.

James Stewart

Stewart, the owner of Iron Man Construction, testified that he builds warehouses, car dealerships, churches, and the like and has been in business for thirty-two years. He has thirty-four employees. He testified that he has built metal buildings such as the one involved in this case. Stewart was admitted by the trial court as an expert in the field of construction of metal buildings.

Stewart inspected the building in March 2016, more than five years after the fire. Stewart testified the building needed "thirty-two foot by two hundred and twenty-five foot of roof with new insulation and twenty-six gauge r-panels galvalume which is unpainted." Stewart said the front wall would need thirty-one sheets and new door trim. The back-wall replacement would be seventy-five sheets. He further opined that the first three bays of purlings and eave struts needed to be replaced because they were warped from the fire damage. Stewart opined that all of the repairs were necessitated by the smoke damage that occurred in 2011 and would cost $36,780.00.

Stewart reviewed numerous pictures submitted into evidence and described smoke damage on the roof interior and smoke damage on the bay doors on the exterior. He said he personally inspected the roof and there was "heat damage." He had no idea if the building leaked or if the building itself burned. Stewart testified that in the first three bays, the panels had warped like the iron below but that the screws on top of the roof are made of neoprene and would melt. He said it probably leaks horribly but he had not been there when it was raining so he did not know.

Joe Richard

Richard testified that after Guillotte's departure in November 2015, the building was rented to a Mr. Flores, but he was only open for business for five or six months. He said no one had rented the building since. Richard said the fire occurred in the first bay, but the ceiling damage extended the entire 225-foot length of the shop. However, when questioned if the ceiling caught on fire, he did not know. The trial court questioned Richard about the difference in smoke damage and fire damage. Richard stated that "it burnt all the insulation. And if you look very closely, all the seams on the insulation are all burnt up." Although Richard repeatedly commented that the building suffered fire damage, he was questioned:

Q. But my question is: When you say that it's fire damage, you're not saying it was actually burned. You're saying that some of that was burned or melted from heat, but some of it was also from smoke?
A. Right. The whole building didn't get burnt. That's why the man said, Door One, Two, and Three, he bidded on. It didn't burn all the way to the very end, but it damaged enough for one, two, three bays.

Richard then testified to other damages he claimed to the building, including what he thought was a cut to an overhead door from a forklift. Pictures were introduced, which Richard claimed he took on the day of the fire. Next, he discussed the sign on the side of the building that said "Guillotte's Collision Repair." Richard said he owned the sign because he paid someone to create it before Guillotte moved in. He said Guillote took it and has never brought it back. Richard claimed the five-year-old building had been in "tiptop shape" when Guillotte moved in.

Richard discussed some pictures of the interior ceiling that he took the day of the fire, which showed a layer of thin plastic then insulation. Defense counsel questioned Richard as to why the plastic protection was not melted if the fire was so hot. Richard testified, "If you go visually look at it, you would have to say different, if you go physically and look at it." Then he stated, "They actually have some pictures on the very corner where it busted through the-the insulation is coming out on some of them pictures way over there." However, these pictures he referenced were not submitted into evidence because they are "just some little side pictures," and they were "trying to save on the amount" and "spare the court of looking at more photographs."

Richard was then presented with pictures evidencing unrepaired water damage in the bathroom and admitted he never had it fixed.

Eugene Guillotte

Guillotte testified that he is the owner of Gene's Collision Repair and Auto Sales, which was previously Guillotte's Collision Repair when he and his father rented the building from Richard. However, a few months later Guillotte took over the business.

Guillotte testified that in 2002, when he first rented the building, Richard did not require a deposit because there were minor repairs that Guillotte himself undertook before moving in. Guillotte discussed the sign, which he said was a housewarming gift. He said "If it wasn't a gift, I wouldn't have taken it. I don't steal anything." He further said that the police determined that it was a gift, and he was not required to give it back. Regarding the overhead door, Guillotte said that its problems preexisted him taking over the building and that they were always working on it because the chain was constantly coming off. He said they had to climb on top the building and risk injury in order to fix it themselves because Richard would not perform any repairs.

Guillotte said that they were open for business the day after the fire occurred. When shown the pictures presented by Richard, Guillotte testified:

Q. I'm going to show you Plaintiff's Exhibits 7, 8, and 9. Does that adequately reflect or accurately reflect the smoke damage to the ceiling area?
A. Everything looks- it looks- from the smoke damage, yes, except for this insulation hanging. That wasn't like that when we moved out of there.
....
Q. He says that picture was taken the day of the fire.
A. You can tell this right here is fresh. The yellow insulation is really bright.

Guillotte then pointed out that two of the pictures that Richard claimed to have taken on the day of the fire were inconsistent because one depicted an "Interstate Batteries" sign, which Guillotte said he only took when he left in November 2015.

Guillotte said the roof has never leaked and that he would have known if it did because a leaky roof would not have worked in his business painting cars. He then discussed a picture he took showing the car belonging to Richard that he did the clear coat on in trade for rent. Guillotte pointed out that his "Interstate Batteries" sign was not there because he had taken it down and that no insulation was hanging from the ceiling in the picture. He said that after the fire, he pressure-washed the ceiling, the roof, and the sides. He changed all of the electrical and lighting fixtures that were damaged. He described how he tried to get the smoke off of the clear plastic covering the insulation in the ceiling in the stall where the fire occurred but that it would not come off despite pressure washing and bleach.

The trial court then questioned Guillotte about "some plastic coating for the insulation heated up and kinda melted down." Guillotte informed the trial court that the plastics were motorcycle plastics that he had hanging in the shop and that there were gas tanks for motorcycles, which would have blown up had the fire or heat reached them (they were in an elevated portion of the building below the insulation). Thus, it was not the plastic that was supporting the insulation that had melted; rather the heat had melted some of the plastic motorcycle parts that were hanging in the building.

Guillotte then testified to numerous deficiencies with the building that Richard would not repair including termite damage that left a hole in the wall, black mold from a leaking hot water tank, and a toilet that he replaced at his own expense. Although Guillotte had a general liability insurance policy in effect, he did not have a policy to cover the building, nor did Richard. However, Guillotte said that Richard told him to get one after the fire, which he did.

Shelly Guillotte

Shelly, Guillotte's sister, testified that she had worked for him since 2001 doing paint and body work and sometimes helping out in the office. Following the fire, Shelly testified that they had "a bunch of cleaning to do" and had pressure-washed the inside "a lot" of times. She said there was a lot of black soot on the walls. When questioned whether the insulation melted or fell down from the ceiling, Shelly replied that it had not melted or fallen down, but that it did "have a lot of black soot on it." She said the light fixtures in the first two-to-three stalls were replaced. Shelly described the location of the office as being right next to the stall where the fire occurred. She said there was no damage to the office. She described some of the issues with the building including termites and plumbing issues. She said that Richard " sometimes" fixed them.

Cindy Frederick

Frederick, Guillote's mother, testified that she would go to the business to help out with the books, monthly taxes, run errands, and go to the bank. Frederick arrived on scene shortly after the fire. She said the only damage she saw was to the two vehicles that caught fire and that the roof had black soot on it. She said there was no insulation that was melted or falling down. She testified that the car that caught fire was probably ten to fifteen feet from the office and that they were thankful that there was no loss of records located in the office, which had no damage.

Based on our review of the record, we cannot say the trial court manifestly erred as its findings are reasonably supported by the record. The trial court clearly did not find Richard or Stewart's testimony credible, and that finding is not manifestly erroneous. The "expert" who testified on Richard's behalf inspected the building five years after the fire. He barely gave enough information for a basic understanding of what the $36,760.00 worth of repairs was comprised, much less connect the alleged damage to the roof to the fire on the interior that did not even melt the plastic covering the insulation. Richard's own inconsistencies and the photographic evidence simply did not support his claims. In fact, his own evidence contradicted his claims. The trial court even asked for clarification:

TC: Does anybody have a picture of the metal damage?
...
PLAINTIFF'S COUNSEL: No, sir. Joe [Richard] didn't go up there.
TC: 'Cause I'm trying to figure out how there's some plastic between the plastic and roof. And if the metal roof melted, how come the plastic that precedes it did not? I'm having a difficult time with that.
...
TC: ... Do y'all have any evidence about that?
PLAINTIFF'S COUNSEL: Other than the testimony of the expert, who said he got up on the roof and it was-there was heat damage.

Richard failed to meet his burden of proving that he was owed any damages for replacement of nearly the entire metal building. The trial court's finding that Guillotte owed him $500.00 for some remaining grey soot was entirely reasonable, and we will not disturb it.

CONCLUSION

The judgment of the trial court awarding the plaintiff/appellant, Joe Richard, $500 and assessing him with all court costs is affirmed. All costs of this appeal are assessed to Joe Richard.

AFFIRMED .

      Stewart did not actually describe what kinds of "sheets" he was referring to although we assume he is referring to sheets of metal. Galvalume is a brand name of aluminum-coated steel.

      Note that we refer to Shelly by first name only to distinguish her from the Plaintiff because they share the same last name.


text:
    STATE of Louisiana v. Jason M. ROE, Joshua A. Watson
    NO. 2017-KA-0758
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 2018
   Leon Cannizzaro, District Attorney, Donna Andrieu, Assistant District Attorney, Chief of Appeals, Christopher J. Ponoroff, Assistant District Attorney, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLEE

Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. Box 220, Madisonville, LA 70447, COUNSEL FOR DEFENDANT/APPELLANT JASON M ROE

Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, P. O. Box 4015, New Orleans, LA 70178-4015, COUNSEL FOR DEFENDANT/APPELLANT JOSHUA A. WATSON

Joshua Watson # 611544, Main/Prison Walnut-3, Louisiana State Penitentiary, 17544 Tunica Trace, Angola, LA 70712, Jason Roe, General Delivery, Louisiana State Penitentiary, Angola, LA 70712

(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Tiffany G. Chase )

Judge Tiffany G. Chase

Defendants, Jason Roe (hereinafter "Roe") and Joshua Watson (hereinafter "Watson"), appeal the resentencing of their convictions. Anders briefs were filed by defendants' appellate counsels pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669, (La. 12/12/97), 704 So.2d 241, 242. Appellate counsels assert that they have conducted a thorough review of the record and cannot find any non-frivolous issues to raise on appeal and as such, seeks to withdraw as counsel of record. The State filed a response arguing that no assignments of error were briefed and thus are waived on appeal. After consideration of the record before this Court and the applicable law, we affirm Roe and Watson's resentencing and grant appellate counsels' motions to withdraw.

Statement of the Case

The facts of this case have previously been set out in considerable detail by this Court. On July 18, 2011, the State charged defendants Roe and Watson jointly with committing armed robbery (count one) and charged Roe individually with committing a second armed robbery (count two), possession of a firearm by a convicted felon (count three) and possession of a stolen firearm (count four). A jury subsequently returned a verdict finding the defendants guilty as charged. On May 14, 2013, the trial court sentenced Watson to fifty years imprisonment at hard labor and sentenced Roe to seventy years imprisonment at hard labor on each armed robbery count and to fifteen years on the felon in possession of a firearm count and four years on the stolen firearm count.

On November 20, 2013, defendants' appeal was lodged in this Court. While their appeal remained pending, defendants both admitted to their status as recidivists; Watson as a second felony offender and Roe as a third felony offender. On December 2, 2013, the trial court resentenced Watson to sixty years imprisonment and on January 6, 2014, it resentenced Roe to seventy years imprisonment at hard labor.

On October 8, 2014, this Court reversed the conviction on count two and affirmed the remaining convictions. This Court also vacated the (unenhanced) sentences on count one because they did not reflect that the trial court had imposed the firearm enhancement. This Court also ordered that the trial court impose the mandatory fine required by R.S. 14:95.1 as to defendant Roe. Defendants sought review in the Louisiana Supreme Court, which denied writs to Watson but granted limited relief to Roe, finding that his convictions for possession of a stolen firearm and armed robbery violated double jeopardy principles and vacating the less serious offense.

Pursuant to this Court's order following defendants' appeal, on November 9, 2015, the trial court vacated the originally imposed sentences and resentenced Watson to forty-five years imprisonment at hard labor and added a consecutive five-year enhancement for the use of a firearm and resentenced Roe to sixty-five years imprisonment and added a consecutive five-year enhancement for the use of a firearm. Both defendants filed motions to reconsider their sentence and the trial court conducted a hearing on June 10, 2016.

At that hearing, the trial court acknowledged that when it resentenced the defendants in compliance with this Court's opinion on appeal, it imposed sentences below the mandatory minimums required by law based on defendants' recidivist statuses. Moreover, the trial court was clearly not convinced that either defendant was entitled to a downward departure under State v. Dorthey .

Resentencing

This Court notes one procedural issue which warrants discussion. Specifically, defendants' status as habitual offenders and resentencing. As previously discussed, both defendants pled guilty to being habitual offenders. Watson pled guilty on December 2, 2013, his original sentence was vacated and he was resentenced to sixty years without benefit of parole, probation or suspension of sentence. Roe pled guilty on January 6, 2014, his original sentence was vacated and he was resentenced to seventy years without benefit of parole, probation or suspension of sentence. When the trial court resentenced defendants as habitual offenders, the trial court failed to impose the mandatory consecutive five year term as required by La. R.S. 14:64.3. This Court has previously held that the failure to impose the enhanced sentence under La. R.S. 14:64.3 requires the case to be remanded for resentencing. However, the trial court's sentences were imposed in exchange for the defendants' habitual offender plea agreement and neither defendant challenged that resentence. Defendants' motion to reconsider was in regards to the resentence imposed as a result of this Court's ruling, not the habitual offender resentencing. On October 8, 2014, after the defendants' resentencing occurred on their habitual offender status, this Court ruled on defendants' appeal of their original sentence. In compliance with this Court's ruling, the trial court vacated defendants' original sentence and resentenced defendants. However, defendants' original sentence was vacated when they were adjudicated as recidivists. Nonetheless, Watson was resentenced to forty-five years plus five consecutive years under La. R.S. 14:64.3. Roe was resentenced to sixty-five years plus five consecutive years under La. R.S. 14:64.3.

Our Supreme Court has held that if a sentence is grossly disproportionate to the severity of a crime or only purports to impose pain and suffering, that sentence is excessive and unconstitutional. Defendants' resentencing does not constitute excessive punishment since both defendants are repeat felony offenders and their pre-enhancement sentences were less than the mandatory minimum under the habitual offender statute. Considering neither party appealed the terms of the habitual offender resentence, the terms should not be disturbed and defendants' agreements made under the habitual offenders statute remain intact.

Errors Patent

The record was reviewed for errors patent, in accordance with La. C.Cr.P. art. 920, and none were found.

Anders brief and motion to withdraw

Appellate counsels have filed Anders briefs pursuant to Anders v. California and State v. Jyles . Counsel for each defendant asserts that they have completed a thorough review of the trial court's record and found no non-frivolous issues to raise on appeal. The United States Supreme Court in Anders determined that, after an examination of the trial court record, if appellate counsel finds the case to be frivolous, counsel should advise the court accordingly and seek withdrawal from the matter. Anders was interpreted by this Court in State v. Benjamin . This Court has conducted an independent review of the record as required by Benjamin and determined that a review of the record supports appellate counsels' findings of no non-frivolous issues to raise on appeal.

Conclusion

After a thorough review of the record, this Court finds no errors patent and finds no non-frivolous issues on appeal. Therefore, the resentence of both defendants, Jason Roe and Joshua Watson, are affirmed. Additionally, appellate counsels' motions to withdraw are granted.

AFFIRMED

      State v. Roe , 2013-1434, pp. 3-15 (La.App. 4 Cir. 10/8/14), 151 So.3d 838, 843, writ denied sub nom. State v. Watson , 2014-2355 (La. 8/28/15), 175 So.3d 966, and writ granted in part, denied in part , 2014-2322 (La. 8/28/15), 177 So.3d 125.

      State v. Roe , 2013-1434, pp. 56-57 (La. App. 4 Cir. 10/8/14), 151 So.3d 838.

      State v. Watson , 2014-2344 (La. 8/28/15), 175 So.3d 966 ; State v. Roe , 2014-2322 (La. 8/28/15), 177 So.3d 125.

      State v. Dorthey , 623 So.2d 1276 (La. 1993) (mandatory minimum sentence dictated by statute may constitute excessive punishment).

      State v. Kennedy , 2010-1606, p. 4 (La.App. 4 Cir. 8/10/11), 73 So.3d 985, 988.

      State v. Bonanno , 384 So.2d 355, 357 (La. 1980).

      State v. Benjamin , 573 So.2d 528 (La.App. 4 Cir. 1990).