author: COOKS, Judge.

text:
    STATE of Louisiana v. Billy Dean COTTEN
    17-684
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 2018
    J. Phillip Terrell, Jr., District Attorney, Catherine L. Davidson, Assistant District Attorney, Ninth Judicial District Court, Parish of Rapides, P.O. Drawer 1472, Alexandria, LA 71309, (318) 473-6650, COUNSEL FOR STATE/APPELLEE: State of Louisiana
    Mary Constance Hanes, Louisiana Appellate Project, P.O. Box 4015, New Orleans, LA 70178-4015, (504) 866-6652, COUNSEL FOR DEFENDANT/APPELLANT: Billy Dean Cotten
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and D. Kent Savoie, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On March 6, 2014, nine-month-old Aiden Dyson was left by his mother in the care of his step-father, Defendant, Billy Dean Cotten, while she went to work. Several hours later, the victim was taken to the hospital suffering from life threatening injuries requiring him to be placed on life support. The following day, after it was determined that Aiden had no brain activity, he was removed from life support.

After an investigation by the authorities, Defendant was jointly charged with his wife, Darlene Michelle Cotten, by bill of indictment with the March 6, 2014, second degree murder of Defendant's step-son, Aiden Dyson. A jury unanimously convicted Defendant of the charged offense, and the court subsequently imposed a mandatory life sentence at hard labor without the benefit of parole, probation, or suspension of sentence. From this conviction and sentence, Defendant appeals.

ANALYSIS

Assignment of Error One

In his first assignment of error, Defendant contends the State presented insufficient evidence to support his conviction of second degree murder in that it failed to exclude the reasonable hypothesis that the death was caused accidentally and unintentionally.

Louisiana Revised Statutes 14:30.1 states in pertinent part:

A. Second degree murder is the killing of a human being:
....
(2) When the offender is engaged in the perpetration or attempted perpetration of ... cruelty to juveniles, second degree cruelty to juveniles, ... even though he has no intent to kill or to inflict great bodily harm.

Cruelty to juveniles is defined in pertinent part as:

(1) The intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child's age shall not be a defense[.]

La.R.S. 14:93.

Second degree cruelty to juveniles is defined in pertinent part as follows:

A. (1) Second degree cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect by anyone over the age of seventeen to any child under the age of seventeen which causes serious bodily injury or neurological impairment to that child.
(2) For purposes of this Section, "serious bodily injury" means bodily injury involving protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or substantial risk of death.

La.R.S. 14:93.2.3.

In State v. Jackson , 15-393 (La.App. 3 Cir. 11/4/15), 179 So.3d 753, 767-69, writ denied, 15-2191 (La. 5/2/16), 206 So.3d 877, this court reviewed the sufficiency of the circumstantial evidence presented in a second degree murder case which was based on cruelty to a juvenile. In doing so, this court stated:

In State v. Taylor , 14-432, pp. 7-8 (La. 3/17/15), 166 So.3d 988, 993-94 (emphasis added), the court explained in pertinent part:
The rational trier of fact standard established by Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), preserves " 'the factfinder's role as weigher of the evidence,' " by requiring an appellate court to review " 'all of the evidence ... in the light most favorable to the prosecution.' " McDaniel v. Brown , 558 U.S. 120, 134, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [ (2010) ] (quoting Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ). Preserving the role of the factfinder means that in cases involving circumstantial evidence, when "the jury reasonably rejects the hypothesis of innocence presented by the defendant [ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt." State v. Captville , 448 So.2d 676, 680 (La.1984). The alternative hypothesis is not one that merely "could explain the events in an exculpatory fashion," but one that, after viewing all of the evidence in a light most favorable to the prosecution, admissible as well as inadmissible, "is sufficiently reasonable that a rational juror could not 'have found proof of guilt beyond
a reasonable doubt.' " Captville , 448 So.2d at 680 (quoting Jackson ); see State v. Hearold , 603 So.2d 731, 734 (La.1992) ("[W]hen the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial.")....
....
... This court has stated the following regarding circumstantial evidence:
[W]hen the conviction is based upon circumstantial evidence, La.R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Camp , 446 So.2d 1207 (La.1984) ; State v. Wright , 445 So.2d 1198 (La.1984). However, La.R.S. 15:438 does not establish a stricter standard of review on appeal than the rational juror's reasonable doubt standard.... On appeal, the issue is whether a rational trier of fact, when viewing the evidence in a light most favorable to the prosecution, could find that all reasonable hypotheses of innocence were excluded.
State v. Dotson , 04-1414, p. 2 (La.App. 3 Cir. 3/2/05), 896 So.2d 310, 312. Additionally, when a jury " 'reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.' " State v. Strother , 09-2357, p. 11 (La. 10/22/10), 49 So.3d 372, 378 (quoting State v. Captville , 448 So.2d 676, 680 (La.1984) ).

Id. at 767-69.

At trial, Doug Alford, a detective with the Alexandria Police Department, testified that on March 6, 2014, he investigated a call concerning the incident at issue in this case. He proceeded to the emergency room where he observed the victim intubated and non-responsive. From there, he went to the police station to interview Defendant. After advising Defendant of his rights and securing a waiver thereof, Detective Alford took a statement from Defendant wherein he detailed the events that transpired on the day of the incident:

A. He said that his wife had left somewhere around ten, ten thirty in that time frame that morning. He had laid the baby down, Aiden, down for a nap. He said the baby slept till about twelve forty-five, somewhere in that time frame. He wasn't real sure on the time. He woke the baby up, fed the baby, gave him his medicine, put him back to sleep. About forty-five minutes later, he heard the baby crying. He goes in there, picks the baby up and the baby started seizing. He said that the baby went limp. He called 911. Originally, he said he went into the living room and started CPR. Later in his statement he said that he actually went downstairs to an apartment a maintenance guy had opened up that was empty for them to go in. He started CPR there and also called 911 from there. During that time frame, he also made a call to Darlene, the mother, and I believe to his mother, but I'm not certain on that.
....
A. He did say that the baby was breathing but he was doing CPR. That was in his statement. He said that the mother made-got back. She works at the Alexandria Mall. She worked at the cookie-Great American Cookie. She got back prior to the ambulance leaving and she rode in the ambulance with the baby and he followed in a vehicle.
....
A. He said that after we got back-he said that's when he got there and you know, the police escorted him back to the station. I then informed him of what the doctor had told me. And he said-and I told him that, you know, a test would show what the doctor told me. And he said, well, that's what it's going to show but that's not what happened. He then said that the baby had fell earlier in the day and bumped his head on the entertainment center by some DVDs and stuff where he was playing.
Q. Now when he said, that's what they say but that's not how it happened-did you ask him further about that?
A. No, he said, that's what it's going to show but that's not what happened. That was the quote on video. It's on video.
Q. Did he expound on that?
A. He just said that the baby had been playing earlier in the day by the entertainment center, had some DVDs and stuff-said that the baby was on its knees. He said that he just said, hey, and it startled the baby. The baby let go of the entertainment center, fell forward and bumped its head.

Detective Alford testified Defendant inconsistently reported when he called 911. First, he said he called while he was in the apartment, but he then said he was downstairs. He also reported in one statement that the victim was breathing but not conscious, but another time he said the victim was limp and not breathing.

According to Detective Alford, Defendant did not show any emotion during the interview except to get upset when Detective Cruz corrected him. Defendant repeatedly said he did not do anything to the victim, and he did not say it was an accident. Defendant also told Detective Alford that the victim had a seizure the prior October after he fell out of his stroller and bumped his head. After that incident, the victim had a seizure in the emergency room, was admitted to the hospital, and after having another seizure, ended up in the ICU.

Prior to the incident at issue, in January of 2014, a police report was filed wherein Defendant stated during an argument between he and Mrs. Cotten, who was pregnant at the time, he pushed her down.

Mrs. Cotten was asked about the October 2013 incident during her testimony. She said that while they were trick or treating, Aiden's car seat, which was not properly latched into his stroller, flipped over when Defendant hit a bump on the street. The handle on the car seat was down, and because it was possible Aiden hit his head, they took him to the hospital. He had a red mark on his forehead just above his left eye.

The following February, they took Aiden to the hospital because he could not keep food down. After three days of being in the hospital, he suffered two seizures, said by doctors to be caused from a drop in his sodium levels because he had not eaten. During the second one, which was witnessed by Mrs. Cotten, Aiden's hands curled back, his back arched, his eyes rolled back, and he "went silent." When asked if these things occurred in the ambulance on March 6, 2014, Mrs. Cotten said he was strapped down on a bed, so she could not tell if his back was arching; however, he screamed that day unlike the previous episode in October. That day in March, she observed no marks on his head or bruises on his arms or legs; she could see no change from the way he appeared before she left for work.

A video of the victim taken four hours before he was taken to the hospital was shown by his mother to police. It was played for the jury. We reviewed the video and observed the nine-month-old victim crawling around on a bed while Defendant was sleeping. He was babbling, very active, and appeared to be happy.

Mrs. Cotten testified she was jointly charged with Defendant, her husband, for the second-degree murder of Aiden, who was not Defendant's biological son. Mrs. Cotten stated she was testifying on her own free will and nothing had been offered to her. According to Mrs. Cotten, Aiden suffered from acid reflux, seasonal allergies, eczema in the bends of his arms and legs, occasional cradle cap, but no other medical conditions. At the time of the incident, he was taking Claritin for his allergies, but no cough medicine. The morning of March 6, 2014, after feeding and dressing Aiden and getting ready for work, she woke Defendant so he could take care of Aiden. Between 8:30 and 9:00 a.m., Mrs. Cotten videoed Aiden and Defendant on the bed while Aiden attempted to wake Defendant.

About four hours after arriving at work, Mrs. Cotten received a phone call from Defendant that Aiden had been having seizures and she needed to leave work immediately to ride with him in the ambulance. During the ambulance ride, Mrs. Cotten observed Aiden screaming, then passing out, and waking up screaming. Emergency room personnel told her they would do everything they could, but that Defendant and Mrs. Cotten were to remain in a waiting area. Defendant, Mrs. Cotten, her mother, and their pastor waited for news of Aiden's condition. Before the doctors relayed any information, two policeman arrested Defendant. The doctors then informed them that Aiden had suffered blunt force trauma to the brain which caused bleeding on the left side of his brain, rendering him "brain dead." Mrs. Cotten testified she spoke to Aiden's father, Dustin Dyson, and they agreed to remove him from life support. Mrs. Cotten testified she was "lost" and her "whole world was turned upside down." When she went down to ask Defendant what had happened, he told her, "he had no idea what happened, that he was just in his room sleeping-Aiden was-and he heard him crying and he went to go pick him up and he just started having a seizure. And, he told [her] he didn't know why." He said nothing about Aiden hitting his head on the entertainment center, and Mrs. Cotten had not seen Aiden bump his head on the entertainment center that morning. According to Mrs. Cotten, Aiden had started holding onto things and walking but was not "free walking" yet. When asked if he fell a lot, Mrs. Cotten replied that "he fell on his butt."

Dr. James Hebert, the emergency room physician who examined Aiden, was accepted by the court as an expert in emergency and trauma, with expertise in diagnosing blunt force trauma. Upon seeing Aiden, Dr. Hebert observed intermittent seizure activity, mottled skin, a slow heart rate (rare in children, and thus indicative of a significantly ill child), intermittent pauses in breathing, and posturing, which is a neurologic reflex indicative of significant head injury. An examination of his eyes showed retinal hemorrhages in both eyes. Aiden's eyes were "going in two different directions" when he arrived in the emergency room. Dr. Hebert testified of the approximately 40,000 patient encounters he has had in ten years, this was one of the most memorable. After doing the retinal examination, he instructed the nurse to contact child protective services and police because he suspected this was an abusive head trauma case. He explained:

A. The presence of retinal hemorrhages is a statistically very significant finding. When there are bilateral and large massive areas of hemorrhage, statistically you'll find that that type of hemorrhage
only occurs in cases of abuse. You will see retinal hemorrhages with accidental trauma. But post-mortem studies, retrospective analysis studies published by the American Journal of Opthamology [sic] in-Pediatric Opthamology [sic] and Strabismus in 2009-found that in all cases of accidental trauma where it was a known accident, there were minimal to no retinal hemorrhage. In the cases where it was known to be an inflicted injury or an abusive injury, a significant occurrence, almost half of these patients had retinal hemorrhages. And every patient in the study that had severe bilateral hemorrhages were victims of abuse. And that was corroborated by a 2006 by the American Academy of Opthamology [sic] that postmortem autopsy reviews found that as increasing severity of hemorrhage involving both eyes, involving the optic sheath, the incidents that it was caused by abuse and non-accidental trauma was a significant correlation there. You really just don't see bilateral hemorrhages or severe hemorrhages outside of inflicted or abusive head trauma.

Dr. Hebert testified he observed no other injuries on Aiden's body. According to Dr. Hebert, a study performed in Canada and reported in the Canadian Medial Association Journal, revealed half of the infant victims of abuse showed no signs of trauma. Dr. Hebert more fully explained the cause of retinal hemorrhaging:

A. The cause of retinal hemorrhaging typically overwhelmingly is trauma. Like I said, it's-accidental trauma can cause small retinal hemorrhages. But it's really-it has to do with the sheer stress of an acceleration, deceleration type injury; whether it's a blunt trauma, like a car accident, or a significant fall down a flight of stairs. Or in the case of abusive head trauma, the shaking back and forth. The term Shaken Baby Syndrome is commonly used. It's an older term. It's easy to identify and understand. Shaking-everyone knows what shaking means. And so they haven't shied away from that term as far as like public service goes and education to new parents. But medically in 2009, we kind of moved away from that. American Academy of Pediatrics embraced a broader term of abusive head trauma. But it contains that umbrella of Shaken Baby Syndrome also called Infant Whiplash Syndrome. Basically, children, infants particularly, their head is disproportionate to their body. And their neck muscles haven't had a chance to develop to provide the support of their brain and head that would be eventually developed. And so a violent shaking will cause their head, you know, significant [sic] to move back and forth. And then what can occur at that time, the brain essentially sloshes around inside the skull; kind of bangs back and forth inside the skull. And blood flow to the brain, it enters through the carotid arteries and the vertebral artery through the basal artery and then kind of branches off into the various arteries that surround
the brain. But it all exits pretty much the same way through these bridging veins that go to these sinus tracks along the skull and then down into the jugulars and back to the heart. And so what happens unfortunately is with the sheer trauma and forward and back, forward and back the brain is jerking back and forth and these bridging veins can tear. And so you'll get a hemorrhage inside the skull. And that is one of the biggest problems for these children is the brain injury. You can certainly see blindness from the result of the retinal hemorrhages but it's the brain injury that oftentimes results in the ultimate, you know, morbidity and mortality. But the same concept in the eyes with the violent shaking back and forth, basically at adhesion points where the macula attaches to the retina. That's basically the part of your eye that does most of the seeing, most of the focusing on the retina where the vitreous, which is the goo inside your eye basically where it attaches to the retina. And at these points you'll see that shearing. And I guess the simplest way to describe it, it's I guess gruesome, but you kind of literally shake the eyes apart on the inside.

Dr. Hebert was asked, if Aiden had fallen and hit his head on the entertainment center, whether this type of injury could have occurred. He responded:

A. A subdural hematoma in the brain and bilateral retinal hemorrhages could not occur from a minor trauma. A study done by Children's Hospital at Kansas City, Missouri published in 1999 where they reviewed a lot of pediatric accidental falls-none of these were abusive. These were all accidental falls, four feet. They found eighty-five percent of the children in the study had no injury. They had I think seven percent had linear skull fracture from the fall. And two percent or two patients in the study had a hemorrhage. And it was later proven that those were both victims of abuse. And so in this study, where they retrospectively evaluated these patients, they found with four foot falls-not a baby falling forward and bumping his head on a table-they found no evidence of trauma-of bleeding at all; much less significant retinal hemorrhage and subdural hematoma.

Dr. Hebert also explained the difference in intentional injuries and accidental injuries:

A. Intentional verus [sic] accidental meaning the injury is occurred as the result of someone actively harming the child as opposed to, you know, a car accident or accidentally dropping down a flight of stairs. Just meaning the child is the focus of the injury as opposed to just anything happening. You know, the child falling or something falling on the kid or getting in a car accident; things like that.

When Dr. Hebert was asked if Aiden's injury was intentional or accidental, he responded:

A. The history I was given of having been fed a bottle and then put down in the bed and then found this way later, is completely incongruent with what we identified on exam. It is-based on the statistical analysis of multiple cases and-the term evidence-based medicine came about in the early two thousands. And basically it's when, as physicians, we moved away from just kind of going by our anecdotal experience on how to treat things and started looking at large cohorts of patients where they would study thousands of patients in some cases and see what effect medications had on them and turns out, like this medicine doesn't actually help high blood pressure so we stopped using it. And, this medicine is very effective. And the concept of aspirin for a heart attack proven to save lives, that's an example of evidence based medicine being put into practice. So based on, you know, the evidence that's out there, statically [sic] you look at other human beings. And the only patients in any study that had severe hematoma associated with bilateral massive retinal hemorrhage in any of these studies, without exception, they were from abusive head trauma or intentional trauma.

Dr. Hebert testified that a fall from a stroller in October could not have been the cause of the subdural hemorrhaging and the "bilateral retina" as resolution of an intracranial bleed would occur within about a month. He testified that shaking the baby would have caused immediate symptoms. The posturing, seizing, and intermittent stopping of breathing that he had upon arrival could have taken some time, but "overwhelmingly symptoms are present immediately."

Dr. Hebert testified he spoke to the family and explained why police had to be called. Aiden was transported to the Pediatric Intensive Care Unit from the emergency room, and life support was withdrawn the following day. Dr. Hebert was asked whether he felt this injury was intentional, and he replied, "[u]nder oath in a court of law with a man's future at stake, unequivocally I felt absolutely that this was an inflicted injury."

Dr. Marvin Mata, the pediatric ICU specialist that was consulted in Aiden's case, testified that the CT scan showed Aiden had a subdural hematoma (subdural bleed) on the right side, but there was also evidence of bleeding on the left side of the brain which had resolved. Blood was pooling between both sides of the brain, and there was bilateral severe retinal hemorrhaging, which is typically associated with non-accidental trauma, abusive head injury. He explained that abusive head trauma"consists of acceleration/deceleration forces that effects [sic] the brain of the child. It causes tearing to the deep layers in the eye that causes the bilateral severe hemorrhages. It cases brain injury at the cellular level and so the brain is not able to sustain its function and is not able to support the other organs in the body as well." Dr. Mata explained that acceleration/deceleration forces involve rapid forward and backward or side-to-side movement of a child and can be part of Shaken Baby Syndrome, a term used in the past. Dr. Mata, like Dr. Hebert, testified that in about half of patients with abusive head injuries no external injuries are observed. Dr. Mata testified that a seizure would not cause this abusive head trauma and neither would a fall against the entertainment center, which would cause a more focal injury where the head was bumped. Dr. Mata testified that the true indicative sign of abusive head trauma is the presence of severe bilateral hemorrhages. Dr. Mata confirmed on cross-examination that an acceleration/deceleration force could be caused by the head hitting something, rebounding, and hitting something else.

When it was ultimately determined that Aiden had no brain activity, Dr. Mata spoke with the family who opted to withdraw life support. Dr. Mata testified on redirect examination that a nine-month-old child was not capable of producing the type of injuries Aiden had and based on the findings from the physical exam and the neuro-imaging, Aiden's injuries were consistent with being non-accidental.

Dr. Christopher Tape, the pathologist who performed the autopsy of Aiden, was accepted by the court as an expert in the field of forensic pathology. His findings were that Aiden suffered subdural hemorrhaging due to blunt force injuries and the manner of death was homicide. He arrived at this conclusion due to an asymmetrical brain injury pushing the brain to one side and subdural hemorrhaging around the spinal cord in the back. He explained:

It's pushing the brain to one side. So that says it's not a natural cause of a bleed, 'cause if you had a natural cause of this bleed, it would just be kind of everywhere. So I'm sort of left with-I have a nine month old that is probably not very mobile and is probably not having these injuries on its own too much, and I don't have a better explanation for this injury. So I sort of [by] default go to homicide. And again, there's two injuries here in two separate areas. They're not likely explained by a fall. A fall that's going to kill you, you are probably going to see some injuries on the head, on the scalp, maybe broken bone, and there was none of that. So it's not a big fall, like an accident. And so I am again-so I'm left with homicide as a default.

Dr. Tape confirmed that the injuries could not have been caused by a seizure and the blunt force injuries could be indicative of abusive head trauma. When asked if the retinal hemorrhaging was indicative of abusive head trauma, Dr. Tape replied, "Not necessarily. Not in my opinion." He explained:

A. This is a controversial area. My opinion, the retinal hemorrhages, the optic nerve sheath hemorrhages are actually due to increased intracranial pressure ; which means just pressure inside the brain and it's kind of pressing, and it causes this bleed. Now, unfortunately, this is an area where we don't have very good scientific studies because we can't do this study. It would be unethical to do this study where you do this to infants.
Q. But the subdural hemorrhaging would have been a bi-product of the retina hemorrhaging?
A. The other way around. The retinal hemorrhages is a bi-product of the subdural hemorrhage.

Dr. Tape testified that any type of impact or acceleration/deceleration injury is a blunt force injury which can be created by whiplash action. A nine-month-old baby's neck is not mobile enough to stop the back and forth or side-to-side action.

On cross-examination, Dr. Tape testified that a nine-month-old pulling up and falling forward and hitting a cabinet or falling backwards would not cause the injuries Aiden sustained. Dr. Tape testified that in the vast majority of shaken baby cases, the baby has not been shaken but more likely made impact with a soft surface where there is an acceleration/deceleration impact. Because it is a soft surface and babies have pliable bones, no injuries are seen but the acceleration/deceleration impact is there. Dr. Tape also discovered a spinal cord injury in Aiden's mid-back, which he believed was a separate injury from the brain injury. He explained that the spinal cord injury was probably an acceleration/deceleration injury which could have been caused by shaking, a blow to the back, or a high fall from at least five or six feet.

As for the manner of death being homicide, Dr. Tape explained that homicide for his use is a medical legal definition that is one person causing the death of another. A case of self-defense or a case where someone shoots a person while hunting thinking they are shooting a deer are both still homicides because the person intended to kill their target. Dr. Tape testified that he could not absolutely rule out an accidental death in this case. However, on redirect examination, Dr. Tape confirmed that a nine-month-old child cannot throw himself up against anything and even if he fell backwards in his crib, it would not cause subdural hemorrhaging.

Jordan May, who lived with Defendant and Mrs. Cotten briefly four years prior to trial, testified that during the time she stayed there, she was at home during the day with Mrs. Cotten and Aiden. When Ms. May moved in, Aiden was approximately two or three months old, and he was about five or six months old when she left. During the time she lived there, Ms. May witnessed Defendant and Mrs. Cotten arguing. During one particularly bad argument, Defendant was angry because Mrs. Cotten was giving too much attention to Aiden, who suffered from numerous health issues. On that particular day, Mrs. Cotten had been caring for Aiden all day and Defendant wanted her attention which he was not getting.

Jerry Guin, who served time in jail for second degree battery, testified that he was housed in the same cell with Defendant for a period of time. Defendant told Guin that "an accident occurred.... he had a bad accident. He did something he wished he wouldn't have done. Went a little bit too far." Guin testified that he contacted police because he felt like it was the right thing to do. When asked to explain what he meant by going a little bit too far, Guin said he told police:

Just by shaking the baby and shaking it-you know, I mean he shouldn't have shook it. You know, and basically because-you know, being a stepfather, you know, you can picture a time when kids would make you feel like you should do something to them wrongfully. You know, because they're not yours. And, that's just the way-that's the persona that I took then, you know, coming from him. And, that's why I reached out to y'all. I mean, Aiden he couldn't come back and reach out to him. Someone had to.

According to Guin, Defendant said he shook the baby because his wife did not get home in time and he was babysitting. He said he shook the baby to get him to "shut up." Guin testified Defendant also talked to him about jealousy issues:

We was just talking about any normal stepdad that looks at a kid that ain't theirs. You know, a man can't take that disease out of him knowing that that ain't his kid to where he don't want to do things for him or her that he would do for his own. You know, that's because in your mind you're usually thinking that their daddy should be doing it or you know, if my old lady didn't have a kid with him, I wouldn't have to be doing this.

Guin responded affirmatively when he was asked if he took this as "jealousy type anger." According to Guin, Defendant told him, the "little son of a bitch cried too much." Guin also testified Defendant told him the following about the incident:

A. That he just-you know, I mean it wasn't-I don't think it started out to be a crime. Then it turned into one, you know. It went from there. He didn't mean to do what he meant to do. You know, I don't think no man could every intentionally kill a baby at the moment in time. You know, no matter how old the baby is. But when you go overboard, you go overboard. Basically, that's what has come about. The man went overboard, you know. What bits and pieces I've picked up along the way, you know, he could have stopped a long time ago. He could have left the woman or become better friends with the father's baby and got the father's baby to spend more time with him.

Guin was asked if Defendant ever told him that the baby fell. Guin testified Defendant told him about another incident where he kicked the stroller too hard and it fell over with the Aiden in it. Guin was asked whether Defendant ever said that the baby fell during the times he had the baby. Guin responded, "I can't recall. I mean, it's vague to me. You know, maybe too many marijuana sticks. I don't know."

Guin was shown his statement given two years prior to refresh his memory about an incident where Defendant wrapped Aiden in blankets. Guin then said:

A. He said he, you know, wrapped it up and then held it, you know, and just-I can't remember much about the blanket situation. I ain't going to-I can't sit here and lie to you and say I do, you know. I mean, I remember something about it but just-I don't remember the whole conversation about the blankets. So I mean-

Guin read from his prior statement in the following colloquy:

A. (reading) and that earlier she was with somebody else or she just wanted to stay away from-a little while longer because she was worried about him doing something. And he called her and she wouldn't answer the phone. The baby cried, cried, cried, cried and he said he wrapped the baby up in a blanket and started shaking him. He shut up for a little while and he said that I knew I couldn't smother him. He said that he just wrapped him up and he showed me the blanket. And he said that he just wrapped him up and shook him and shook him. And then he started thinking about some autopsy or something so he started shaking sideways. The little fucker quit crying.
Q. That's what he told you?
A. Yes, sir.
Q. Is that what you recall?
A. Yes, sir. In so many words. I think somebody got-now that's not basically what was said, you know, I mean like that. I mean, cause I couldn't have been able to stay in a cell with him then. You know what I'm saying?
Q. Okay.
A. So I mean, it wasn't that gruesome, crucial like that. I mean, I'm just being honest with you. I mean, it just-it wasn't-but it was something like that but it wasn't that gruesome.
....
A. (reading) after he said he shook him sideways and he quit crying, and what did he say happened. It just hurts me and I didn't want to-I
didn't want to sit here and listen to this bitch save that man-y'all should make sure the mother fucker don't get away with that. I'm telling you man that I-that no nine month old didn't do nothing. He just wanted to live. That's it. And sorry piece of shit like him and-taking care of him now for nothing.
....
A. He said shut up. And then he called his wife and told her the baby had a seizure or something. She needed to hurry up and get home. He said that bitch started hauling ass home and then she got home and the baby was still. And they tried CPR on it something like that and tried to shake him back. Well, then they called the ambulance. The ambulance got there and they brought him to the hospital. Then he said once they got to the hospital that's when the doctors scared him. The doctor knew what he had done, he said, but there was no way he could prove it. And he could prove it now because the baby shake bake or something they called it. Baby shake syndrome or something.
Q. Okay. So he's telling you all this?
A. Yes, sir.
Q. What was going on through your mind when you're receiving all this information?
A. How can there be someone in this world like this? Basically. It sums it up in short. I mean, a lot of words don't need to be said in the courtroom. It's got a lot of women in here.
Q. Did he ever tell you that he thought-and you just kind of answered it but I'm going to kind of elaborate on it-that he thought he was going to get away with this?
A. Basically it was a fifty-fifty chance but he was leaving more towards the fifty-one percent, being his.
Q. Did he tell you why?
A. No, sir. That's just-I told you before, I mean, a lot has happened since then, Your Honor. You know, I mean a lot of it's vague to me.
Q. Did he tell you anything about what the doctor said to him?
A. I can't recall, brother.
Q. Okay. I'm going to draw your attention to page six. Question-but he said that the doctor-I'm going to let you start after that question.
A. He said that it looks like a homicide. When the doctor said that he said he knew one thing come out because they didn't have shit on him. And right there I knew right then that whenever they got
interviewed that all whatever-they come out of the interview room standing across from each other. He had their heads down and she looked up and said, what did you do to my baby? And he told her, I did nothing. What do you-our baby-he said, I ain't do nothing to our baby. That was your baby.
Q. Alright. And continue on.
A. He said right then that he knew the bitch was going to turn state['s] evidence on him. What you mean by that? He say I think I may have let it slip a couple times that what I did to him on the way to the hospital but she was so hysterical she didn't realize that. Okay. I'm sorry. When did they say anything about being interviewed by the police? Just a little-not so much the details-that whoever interviewed him is a rookie or something. But he didn't know what questions to ask and that even though-could put him on the stand and turn him upside down he said ain't going to have a chance because I'm firing him to a lawyer on the way for him because-and her lawyer ... couldn't be in the same lawyers office and have him conflict something I told him....
....
A. Well, he's like well, I know that the bitch is going to turn state['s] evidence on me because they dropped her bond from a million dollars and put her on house arrest. I told they [sic] just know she didn't have nothing to do with it. She was at work. You killed her son. He say, it was an accident. I was just trying to get the little fucker to shut up where she wouldn't hear him crying in the background think I'm doing something wrong to him.
Q. And I've got to ask you this question. When you say-I don't like to use the term-the little f-er. Okay. I'm not going to say that. Is that your words or was that his words? [sic]
A. It was his words.
Q. He was that cocky? That confident?
A. Yes, sir. Yes, sir.
Q. Why are you here today?
A. I really and truly don't know, brother. It's just something-felt like the right thing to do. I don't know. I don't believe in no other spirits and the God above me, you know. You ask for blessings and you receive them. You know. And since then I've asked for a lot of blessings to see a different side of being here today, you know. And I didn't receive no other blessings than to be here. And it's easier for Aiden or for Cotten's case, I don't know. I'm just telling you what I feel in my heart and mind, you know. And it's not influenced by anyone or no substance. It's just influenced that I feel in my body, you know. I mean, I can't explain it no other way than that....
Q. Are you facing any charges right now?
A. No. I ain't got nothing on me. Nothing. I ain't got no charges. I might have after this. But, I mean, I ain't got none on me as of right now.
....
Q. And what did I tell you to tell?
A. The truth. That's what I told. I won't lie to you. I don't know you from Adam.

Guin affirmed that no promises had been made to him by the State in exchange for his testimony.

On cross-examination, Guin was questioned about the veracity of his testimony that Mrs. Cotten asked Defendant what he did to her baby when they exited the interview rooms. Defense counsel referenced Mrs. Cotton's testimony that Defendant was taken to the police station while she remained at the hospital, and also Detective Alford's testimony that the two were not interviewed at the same time. Guin responded that he did not know.

Guin stated on cross-examination that he also testified in a similar case to this one and did not receive anything for his testimony. His extensive criminal history was discussed including simple criminal damage to property, trespass, two counts of theft, domestic abuse/battery, simple burglary, possession of hydrocodone, possession of marijuana, identity theft, filing false public records. Guin admitted his memory is not very good due to his extensive marijuana use. On redirect examination, Guin confirmed that Defendant told him he shook Aiden, and "it was an accident and the baby died."

As stated above, Defendant contends the State failed to exclude the very reasonable hypothesis that if Defendant injured Aiden it was unintentionally done by accident and with Defendant not realizing what he had done. Defendant argues that Guin's testimony was bizarre and inconsistent with the testimony of other witnesses. He points to Guin's testimony that Defendant told him he shook the baby to shut him up because his wife did not return home on time "that night," as inconsistent with testimony she was at work that afternoon and not expected home. Additionally, Guin admitted he could not recall whether Defendant said Aiden fell before he died because maybe he had too many "marijuana sticks." Finally, Defendant notes Guin reported that Defendant told him he kicked the baby's stroller in the prior incident, whereas Mrs. Cotten said the 2013 incident was caused when Defendant hit a bump with the stroller. This resulted in unreliable testimony asserts Defendant. However, "[t]estimony by a jailhouse informant is a credibility determination made by the jury." State v. Bowman , 48,797, p. 13 (La.App. 2 Cir. 4/23/14), 139 So.3d 529, 536, writ denied, 14-1136 (La. 4/2/15), 162 So.3d 394.

Applying the standard of Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we find the evidence presented at trial established that Defendant was the only person present when Aiden's injury resulting in his death occurred and that it was not an accidental injury. The medical evidence and testimony was consistent that Aiden suffered an abusive head injury that caused his death. The medical testimony was unequivocal that this head injury could not have been caused by any typical fall or bump Aiden may have sustained. After reviewing all the evidence in a light most favorable to the prosecution, we find a rational juror could have found proof of Defendant's guilt beyond a reasonable doubt. Accordingly, we find this assignment of error has no merit.

Assignments of Error Two and Three

Defendant notes that, although his counsel argued that a life sentence was grossly out of proportion to the severity of the crime and requested a forty-year sentence, the trial court rejected the argument finding no factors to warrant a deviation from the mandatory life sentence. In his second assignment of error, Defendant claims his trial counsel was ineffective in failing to properly investigate his background and circumstances which would establish that he is exceptional and deserved a downward departure from a mandatory life sentence. Defendant contends counsel failed to argue that he suffers from Post-Traumatic Stress Disorder, ("PTSD") and that his occupation as a corrections officer is one of the most high-stress occupations in existence.

In his third assignment of error, Defendant contends the trial court erred in failing to consider the merits of his pro se motion to reconsider sentence on the basis that it lacked jurisdiction due to the granting of this appeal.

The failure of a trial court to rule on a motion to reconsider sentence requires that the case be remanded for a ruling thereon, and that appellate review of a defendant's sentence be deferred. State v. Augustine , 2013-0164, p. 11 (La.App. 4 Cir. 12/4/2013), 131 So.3d 109, 116 ; State v. Peters , 2010-0326, p. 4 (La.App. 4 Cir. 2/16/11), 60 So.3d 672, 675. However, the failure to rule on a motion to reconsider sentence does not preclude review of the conviction. Peters, supra ; State v. Foster , 2002-0256, p. 3 (La.App. 4 Cir. 9/11/02), 828 So.2d 72, 74.

State v. Weathersby, 13-258, p. 9 (La.App. 4 Cir. 4/16/14), 140 So.3d 260, 266.

The State, in brief, concedes that the trial court retained jurisdiction to consider Defendant's motion to reconsider sentence. Clearly, the denial of the motion was due to the trial court's belief that it no longer had jurisdiction to reconsider the sentence once the appeal was granted. Accordingly, we will affirm defendant's conviction and remand the case back to the trial court for consideration of Defendant's pro se motion to reconsider sentence. Defendant may raise his contention that his occupation as a corrections officer entitled him to a downward departure from a mandatory life sentence.

DECREE

For the foregoing reasons, Defendant's conviction is affirmed. We remand with instructions for a ruling on the motion to reconsider sentence.

AFFIRMED AND REMANDED.

      Dr. James Hebert, whose testimony is discussed below, strongly disagreed with this finding. He testified that the radiologist reviewed a CT scan done on Aiden a month prior and found evidence of a "subdural" that had not been identified as the initial reading was "normal." Dr. Hebert believed Aiden's sodium level was nearly normal and Dr. Hebert felt it would "maybe be the first time in history that anyone had a seizure with a sodium of that level." Dr. Hebert said he could not link a sodium level of 130 with seizure activity.


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    Joshua Shane BARBER v. WILLIS COMMUNICATIONS, INC.
    NO. 2017 CA 0658
    Court of Appeal of Louisiana, First Circuit.
    December 29, 2017
    Thomas J. Hogan, Jr., Hammond, Louisiana Attorney for Plaintiff/Appellant, Joshua Shane Barber
    Darrin O'Connor, Covington, Louisiana Attorney for Defendant/Appellee, Willis Communications, Inc.
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

Joshua Shane Barber appeals a summary judgment dismissing his defamation suit against his former employer, Willis Communications, Inc. We affirm.

FACTS

Barber instituted this defamation action against Willis, alleging he suffered injuries when Willis, his former employer, accused him of theft in statements published to the local police department, his former co-workers, the Louisiana Workforce Commission (LWC), and others. Barber further alleges the statements were made with a reckless disregard for the truth and without a reasonable basis for believing them to be true. Barber's petition specifically references statements in a separation notice provided to him by Willis and forwarded to the LWC, which stated Barber "was witnessed crumpling up money from his drawer and putting it in his pocket." The notice continued, "Upon inspection the following morning, there was money missing."

The trial court granted Willis' motion for summary judgment, finding no evidence of any unprivileged communication published to a third party, and dismissed Barber's suit. Barber appeals.

DISCUSSION

Appellate courts review summary judgments de novo using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Kennedy v. Sheriff of East Baton Rouge , 05-1418 (La. 7/10/06), 935 So.2d 669, 686. That is, a motion for summary judgment shall be granted if, after an opportunity for discovery, the motion, memorandum, and supporting documents show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3).

The burden of proof rests with the mover. La. Code Civ. Pro. art. 966D(1). If the mover will bear the burden of proof at trial on the issue before the court in the motion, the burden of showing there is no genuine issue of material fact remains with the mover. See La. Code Civ. Pro. art. 966D(1); Sims v. Maison Insurance Company , 16-1661 (La App. 1 Cir. 9/15/17), 231 So.3d 656, ---- (2017WL4081531). After the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. Jones v. Estate of Santiago , 03-1424 (La. 4/14/04), 870 So.2d 1002, 1006. However, if the mover will not bear the burden of proof at trial, the mover need not negate all essential elements of the adverse party's claim but must point out that there is an absence of factual support for one or more elements essential to the claim. La. Code Civ. Pro. art. 966D(1). Thereafter, the burden shifts to the non-moving party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

La. Code Civ. Pro. art. 966D(2). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case. Bryant v. Premium Food Concepts, Inc., 16-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 82, writ denied, 17-0873 (La. 9/29/17), 227 So.3d 288.

Defamation is a tort involving the invasion of a person's interest in his or her reputation and good name. Costello v. Hardy , 03-1146 (La. 1/21/04), 864 So.2d 129, 139. The essential elements required to prevail on a defamation claim are (1) defamatory words, (2) publication, (3) falsity, (4) malice, and (5) resulting injury. Starr v. Boudreaux , 07-0652 (La. App. 1 Cir. 12/21/07), 978 So.2d 384, 389. Defamation actions raise issues related to the constitutionally protected rights of free speech and freedom of the press, and summary adjudication is recognized as a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious defamation actions that threaten those rights. See Kennedy, 935 So.2d at 686.

In its motion for summary judgment, Willis asserts that Barber can point to no evidence that Willis published defamatory statements about him. The evidence submitted on the motion for summary judgment established that on the morning Barber's employment was terminated, a manager met Barber in the parking lot and handed him the termination notice, which accused him of theft. In his deposition, Barber testified that no one else was present or overheard the conversation between them. Barber further testified that he had no knowledge of the Willis employee who signed the termination notice relaying information regarding the alleged theft to anyone else, including other employees or the police. Barber also indicated that he was not contacted by the police about the alleged theft after his termination. However, Barber contends that Willis published defamatory statements to the LWC when it forwarded them the notice of termination accusing him of theft and is also responsible for its employee's republication of defamatory statements in a Facebook message to his wife.

When questioned about Willis' communication to the LWC, Barber testified that the LWC approved his claim for unemployment benefits, and that he received benefits for approximately one month until he began working elsewhere. Nonetheless, Barber claims that the accusation of theft in the termination notice that Willis transmitted to the LWC constitutes defamation per se. Words that expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one's personal or professional reputation, without considering extrinsic facts or surrounding circumstances, are considered defamatory per se. Kennedy, 935 So.2d at 675. When a plaintiff proves publication of words that are defamatory per se, falsity and malice, and sometimes injury, are presumed but may be rebutted by the defendant. See Kennedy, 935 So.2d at 675. In its motion for summary judgment, Willis asserted that the statement transmitted to the LWC could not be considered "published" because the communication was privileged.

For purposes of maintaining a defamation action, communication to a third party is considered a publication if the communication is not subject to a privilege. See Costello, 864 So.2d at 142 ; Conner v. Taylor , 15-0177, 2015 WL 5515608, p.4 (La. App. 1 Cir. 9/18/15). Privilege is a defense to a defamation action. Cook v. American Gateway Bank, 10-0295 (La. App. 1 Cir. 9/10/10), 49 So.3d 23, 33. The defense is based on the principle that as a matter of public policy, in order to encourage free communication in certain defined circumstances, a person is sometimes justified in communicating defamatory information to others without incurring liability. Kennedy, 935 So.2d at 681 ; Cook , 49 So.3d at 33.

Privileged communications may be either absolute (such a statements by judges in judicial proceedings or legislators in legislative proceedings) or "conditional or qualified." Kennedy , 935 So.2d at 681. A conditional or qualified privilege is one of the methods utilized for balancing the interest of the defamed person in the protection of his or her reputation against the interests of the publisher, of third persons, and of the public in having the publications take place. Kennedy , 935 So.2d at 685. The basic elements of a conditional or qualified privilege are good faith, an interest to be upheld, a statement limited in scope to that interest, a proper occasion for the communication of the statement, and publication in a proper manner to only the proper parties. Kennedy , 935 So.2d at 681. The analysis of whether a communication is protected by a conditional privilege requires (1) a determination as a matter of law whether the circumstances in which the communication was made satisfy the legal requirements for invoking the privilege, and (2) a determination of whether the privilege was abused, which requires a factual determination that malice or lack of good faith existed. Cook , 49 So.3d at 33.

Another Louisiana court recently held that communications by employers to the LWC are protected by a conditional or qualified privilege as a statement to a state agency with a legitimate interest in the subject matter (determining whether the employee should receive unemployment benefits) and relevant to the subject matter of the agency's inquiry regarding the employee's claim for benefits. See Fisher v. ASI Federal Credit Union , 17-292 (La. App. 5 Cir. 6/29/17), 223 So.3d 779, 784. This is because:

[t]he public's interest and social necessity mandate that an employer not be unreasonably restricted when required to provide information for a state agency to determine in a quasi-judicial proceeding whether a terminated employee should receive unemployment benefits. The employer must be free to make a complete and unrestricted communication without fear of liability in a defamation suit even if the communication is shown to be inaccurate, subject to the requisites that the communication is in good faith, is relevant to the subject matter of the inquiry and is made to a person (or agency) with a corresponding legitimate interest in the subject matter.

Fisher , 223 So.3d at 783-84 (quoting Nolan v. Jefferson Par. Hosp. Serv. Dist. No. 2 , 11-291 (La. App. 5 Cir. 3/13/12), 90 So.3d 1178, 1182 ). We agree with this analysis and that the basic elements of a conditional or qualified privilege are satisfied by Willis' transmission of the termination notice to the LWC.

In a defamation case, the practical effect of the assertion of the conditional or qualified privilege is to rebut the plaintiff's allegations of malice or fault, and to place the burden of proof on the plaintiff to establish abuse of the privilege. Kennedy , 935 So.2d at 683. It is then incumbent on the plaintiff to come forward with evidence establishing the defendant abused the privilege by making the statement with knowledge of falsity or reckless disregard for the truth. Kennedy , 935 So.2d at 686. To establish reckless disregard for the truth, the plaintiff must prove that the statement was deliberately falsified, published despite the defendant's awareness of probable falsity, or the defendant in fact entertained serious doubts as to the truth of the statement. Cook , 49 So.3d at 34 ; see also Kennedy , 935 So.2d at 688. Even proof of gross negligence in the publication of a false statement is insufficient to prove reckless disregard under this standard. Kennedy , 935 So.2d at 688. Rather, the plaintiff is required to produce evidence that the defendant was highly aware the statements were probably false. Kennedy , 935 So.2d at 688.

In opposition to Willis' motion for summary judgment, Barber presented evidence establishing that Willis based its theft accusation on the eyewitness account of another employee, Kasey Horning, as well as video evidence. In her affidavit, Horning attested that she witnessed Barber take money out of the cash register and put it in his pocket, and that she reported this to one of her managers. Barber argues, however, that Willis has no proof to substantiate the charge, other than statements by Horning, "who clearly has an axe to grind with the plaintiff." Barber suggests that his point is proven by Willis' refusal to allow him to depose Horning. Barber also argues there is no evidence to support Willis' statement in his termination notice that money was found to be missing.

The summary judgment evidence establishes that Willis terminated Barber following an eyewitness account by an employee that Barber pocketed money from the cash register. Barber's unsubstantiated arguments attacking Horning's credibility do not constitute evidence that Willis was highly aware that the statement that Barber committed theft, which it transmitted to the LWC as the basis for his termination, was probably false. Similarly, Barber's arguments regarding his inability to depose Horning and that Willis failed to establish proof of its statement that money was missing falls short of carrying his burden of proof.

Barber also asserts that Willis is responsible for Horning's publication of defamatory statements to Barber's wife in a Facebook message. In the message, Horning threatens to post a video of Barber stealing money on Facebook "for God and everybody to see." Barber maintains that this statement "implies that criminal conduct has been caught on camera and that it will be broadcast to the world," which amounts to republication of the original accusation of theft. Barber argues that Willis is liable for republication of the defamatory statement where the republication is the natural and probable consequence of Willis' act, citing Wiggins v. Creary , 475 So.2d 780 (La. App. 1 Cir. 1985).

Wiggins is factually distinguishable and inapplicable to the instant case. In Wiggins , this court held that a newspaper's republication of a defamatory statement was a natural and probable consequence of the defendant's defamatory statement to a reporter, rendering the defendant liable for the republication. Here, however, there is no proof of defamatory statement being republished by a third party. If, in fact, Horning's message included a defamatory statement, it was simply another account by her that she saw Barber take money from the cash register. Following the analysis in Wiggins , Willis would be liable for Horning's statement only if she republished a defamatory statement by Willis and her republication was a natural and probable consequence of Willis' act. However, rather than showing that Horning republished a statement by Willis, the evidence shows that Horning merely repeated her own accusation against Barber. Barber has submitted no argument or evidence to substantiate its claim that Willis is liable for the publication of any defamatory statements in the message from Horning that would defeat Willis' motion for summary judgment.

Willis established Barber's inability to prove that it published defamatory statements about Barber that were not protected by a privilege. Barber then failed to carry his burden of proving he will be able to establish the existence of a genuine issue of material fact or that Willis is not entitled to judgment as a matter of law. Willis is entitled to summary judgment dismissing Barber's defamation claims against it.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to Joshua Shane Barber.

AFFIRMED.

      In its appellate brief, Willis asserts that because this is a defamation case, in opposing the motion for summary judgment Barber bears the more onerous burden of showing that he can produce sufficient evidence at trial to prove the elements of his case with convincing clarity. See Ruffin v. Wal-Mart Stores, Inc. , 01-0613 (La. App. 1 Cir. 5/10/02), 818 So.2d 965, 967, writ denied, 02-1636 (La. 9/30/02), 825 So.2d 1200. However, the 1996 amendments to the summary judgment law eliminated the need for courts to impose a different summary judgment standard in defamation cases. See Kennedy , 935 So.2d at 686 n.17. Thus, a defamation plaintiff is no longer required to produce evidence of sufficient quality and quantity to demonstrate that he will likely be able to meet his burden of proof at trial with convincing clarity in order to survive a motion for summary judgment. Brown v. Times-Picayune, L.L.C. , 14-0160 (La. App. 1 Cir. 11/3/14), 167 So.3d 665, 668 n.4.


author: McCLENDON, J.

text:
    BELHAVEN TRACE LIMITED PARTNERSHIP v. RAD-TON, L.L.C.
    2017 CA 0725
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: December 29, 2017
    Lawrence R. Anderson, Jr., Baton Rouge, Louisiana, Counsel for Third-Party Defendant/Appellant, Roger W. Kahao
    Scott E. Frazier, Jacob B. Huddleston, Baton Rouge, LA, Counsel for Third-Party Plaintiff/Appellee, Rad-Ton, L.L.C.
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McCLENDON, J.

In this suit on a promissory note, the third-party defendant appeals the trial court judgment in favor of the third-party plaintiff for the amount due on the note. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This litigation arises out of a dispute between a land developer, Belhaven Trace Limited Partnership (Belhaven), and Rad-Ton, L.L.C. (Rad-Ton). In September 2010, Belhaven contracted with Rad-Ton to grade lots and do other surface preparation work for a subdivision development on approximately eleven acres of land in Baton Rouge, for a contract price of $637,383.70. After the work was completed and allegedly accepted by Belhaven, a balance of $104,403.68 remained unpaid to Rad-Ton. On December 28, 2011, Roger Kahao signed a promissory note due on demand for that amount.

On October 27, 2014, Belhaven filed a Petition for Damages against Rad-Ton in which it asserted defective construction work. Rad-Ton answered the petition, alleging affirmative defenses and asserting a reconventional demand, in which it contended that it had completed all work under the contract, which was accepted by Belhaven, that Belhaven had defaulted on the promissory note executed for the remaining balance due under the construction contract, and that the sum of $100,903.79 remained due and owing to Rad-Ton. In the same pleading, Rad-Ton also made a third-party demand against Mr. Kahao, alleging that Mr. Kahao executed the note in his individual capacity making him personally liable to Rad-Ton for the sums due thereunder. Belhaven and Mr. Kahao each answered the reconventional demand and third-party demand, urging that Rad-Ton failed to state a cause of action against them. Belhaven stated that there was no authorization by the partners of Belhaven for the execution of the note on behalf of Belhaven. Additionally, Mr. Kahao acknowledged that there was no language in the note indicating that Belhaven was a maker on or executed the note.

On July 7, 2016, Rad-Ton, as the third-party plaintiff, filed a motion for summary judgment on the promissory note, contending that it was entitled to judgment as a matter of law against Mr. Kahao, in accordance with the terms of the note, in the amount of $75,043.57, together with interest, late fees, attorney fees, and costs. The motion was heard on September 19, 2016, and the trial court granted the motion. On October 25, 2016, the trial court signed a judgment and designated the judgment as final under LSA-C.C.P. art. 1915B, finding that there was no just reason for delay. Mr. Kahao filed a motion for new trial, which was denied at the conclusion of a hearing on January 30, 2017, and he appealed.

APPELLATE JURISDICTION

On May 30, 2017, this court, ex proprio motu, issued a show cause order, noting that, from the record, it appeared that the motion for new trial had not been timely filed, thus rendering the appeal of the October 25, 2016 judgment untimely. On September 15, 2017, the rule to show cause was referred to the panel to which the appeal was assigned.

Generally, LSA-C.C.P. art. 2121 requires that a party file an order for appeal within the delay set forth by LSA-C.C.P. art. 2087 or LSA-C.C.P. art. 2123. Article 2087 provides that an appeal that does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of the expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by LSA-C.C.P. arts. 1974 and 1811, if no application has been filed timely. Article 1974 provides that "[t]he delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913." As noted in the show cause order, the filing of an untimely motion for new trial does not extend the delay for filing an appeal. According to the order, since the notice of judgment was sent on October 28, 2016, Mr. Kahao had until November 8, 2016, to file a motion for new trial, and the motion for new trial, filed on November 10, 2016, appeared to be untimely.

The record shows that the judgment was signed on October 25, 2016, and notice of the judgment was mailed on Friday, October 28, 2016. While the show cause order indicates that the two Saturdays and two Sundays were counted as legal holidays, Mr. Kahao points out that two legal holidays were omitted in the calculation: All Saints Day on November 1 and Election Day (the first Tuesday after the first Monday in November in even-numbered years) on November 8. We agree. See LSA-R.S. 1:55. Mr. Kahao additionally argues that his motion for new trial was filed on the sixth day, as it was fax filed on November 9, 2016, and the original filed on November 10, 2016, attaching to his Brief in Response to Order Regarding Dismissal of Appeal copies of a receipt confirming the filing by facsimile transmission on November 9, 2016, and a check indicating payment on November 10, 2016, for the filing of the motion. Upon our review of the record, we find that the motion for new trial was timely filed, whether it was filed on November 9th or 10th. Accordingly, as the motion for new trial was denied on January 30, 2017, the instant appeal, filed on March 28, 2017, was a timely devolutive appeal.

However, in his first two assignments of error, Mr. Kahao argues that the trial court erred in designating the judgment as final and finding that there was no just reason for delay. As an appellate court, we are obligated to recognize any lack of jurisdiction if it exists. This court's appellate jurisdiction extends to "final judgments," which are those that determine the merits in whole or in part. LSA-C.C.P. arts. 1841 and 2083. See also Van ex rel. White v. Davis, 00-0206 (La.App. 1 Cir. 2/16/01), 808 So.2d 478, 483. However, a judgment that only partially determines the merits of an action is a partial final judgment and, as such, is immediately appealable only if authorized by LSA-C.C.P. art. 1915. Quality Environmental Processes, Inc. v. Energy Development Corporation, 16-0171 (La.App. 1 Cir. 4/12/17), 218 So.3d 1045, 1053. Article 1915 authorizes the immediate appeal of final partial judgments and provides, in pertinent part:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
* * *
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
* * *
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

Mr. Kahao maintains that this piecemeal appeal will not resolve the other issues in the lawsuit, as the third-party demand against him on the note is inextricably intertwined with other issues still pending. He asserts, particularly, that Rad-Ton's reconventional demand against Belhaven on the same note is still pending. He also argues that the alleged balance due is subject to being eliminated or substantially reduced if Belhaven prevails on the merits of its petition for damages for defective construction work. Therefore, Mr. Kahao contends that the judgment at issue was improperly designated as a final judgment pursuant to Article 1915B. To the contrary, Rad-Ton asserted in its opposition to the motion for new trial that out of an abundance of caution it had requested that the trial court judgment contain language making its finality absolutely clear, although it asserted such certification was not necessary under Article 1915A, as the judgment was a final partial judgment.

While we agree with Mr. Kahao that the summary judgment at issue does not terminate the entire litigation, it does resolve all claims, causes of action, issues, and defenses as between Rad-Ton and Mr. Kahao, and the summary judgment at issue is a final judgment governed by the provisions of LSA-C.C.P. art. 1915A(3). Consequently, the trial court's certification of the judgment as final for appeal was unnecessary.

SUMMARY JUDGMENT

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966A(2). Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court's determination of the issues. Mabile's Trucking, Inc. v. Stallion Oilfield Services, Ltd., 15-0740 (La.App. 1 Cir. 1/8/16), 185 So.3d 98, 102, writ denied, 16-0251 (La. 4/4/16), 190 So.3d 1207.

In support of its motion for summary judgment, Rad-Ton submitted the affidavit of its manager, Raymond Loup, together with a copy of the promissory note and amortization schedule. Mr. Loup attested that he requested a meeting with Mr. Kahao to discuss payment of the outstanding balance due under the contract and that he and Mr. Kahao met on December 28, 2011, and negotiated a document entitled Promissory Note payable to Rad-Ton for the principal sum of $104,403.68. Mr. Loup further stated that Mr. Kahao signed the note in his personal capacity and that, in exchange for receipt of the interest-bearing note, Rad-Ton delayed seeking immediate payment of the contract balance and did not file a lien on the project to secure payment per the contract. Mr. Loup also acknowledged that Rad-Ton received one payment in the amount of $30,000.00 on January 17, 2012, but that further demands for payment had been to no avail.

Mr. Kahao filed an opposition to the motion for summary judgment and attached his affidavit, in which he stated that he was the manager of Belhaven and that on September 30, 2010, he signed a construction contract on behalf of Belhaven with Rad-Ton. Mr. Kahao attested that when he met with Mr. Loup regarding the balance due under the contract, all of the construction work on the project had been completed. Additionally, he was under heavy pressure to finalize the closing on the loan for financing of the project, and he signed the promissory note under duress because he was threatened with a lawsuit, which would have prevented the final loan closing and would have bankrupted the project. He stated that at that time there was no indication of any problems or defects with the construction work done by Rad-Ton on the project. Mr. Kahao attested that after Rad-Ton completed its work, Belhaven experienced serious problems with drainage that required in excess of $250,000.00 to correct. He attached an engineering report that indicated that the drainage problems were caused by Rad-Ton's failure to properly grade the lots, streets, and other surface areas in accordance with the elevations provided for in the plans and specifications for the project. Lastly, Mr. Kahao stated that he signed the note in error, because at the time he signed it he had no knowledge that there was any problem or defect in the construction work done by Rad-Ton.

Under our Civil Code, a contract is defined as an agreement by two or more parties whereby obligations are created, modified, or extinguished. LSA-C.C. art. 1906. A contract is formed by the consent of the parties established through offer and acceptance. LSA-C.C. art. 1927. A contract has the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. LSA-C.C. art. 1983.

Consent may be vitiated by error, fraud, or duress. LSA-C.C. art. 1948. However, error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. LSA-C.C. art. 1949 ; see also LSA-C.C. arts. 1967, 1823, and 1824. Cause is the reason why a party obligates himself, and without a lawful cause, an obligation cannot exist. LSA-C.C. arts. 1966 and 1967 ; Peironnet v. Matador Resources Co., 12-2292 (La. 6/28/13), 144 So.3d 791, 807.

Error, which vitiates consent, can manifest itself in two ways: mutually, i.e., both parties are mistaken, or unilaterally, i.e., only one party is mistaken. However, in both situations, the error for which relief may be granted (1) must affect the cause of the obligation, and (2) the other party must know or should have known "the matter affected by error was the cause of the obligation for the party in error; that is, that it was the reason he consented to bind himself." See LSA-C.C. art. 1949, Revision Comments (b) and (c).

In other words, both parties can individually be mistaken, in which case both parties are clearly aware the matter in error was the cause of their mutual obligations, thus vitiating the consent of both parties; or one party can be mistaken and that mistake will vitiate consent if the other party knows or should have known. Peironnet, 144 So.3d at 807.

In this matter, Mr. Kahao argues that implicit in his agreement to sign the note was the assumption that Rad-Ton had performed all of its obligations under the construction agreement in a good and workmanlike manner and that there were no defects in that work. Thus, he argues, he signed the note in error because at the time of its execution he had no indication that Rad-Ton had not performed its work in accordance with the plans and specifications. However, it is undisputed that Mr. Kahao signed the note to keep Rad-Ton from filing a lien or a lawsuit, either of which it was legally entitled to do, which would have prevented Belhaven from securing permanent financing for the construction project. Rad-Ton agreed not to file a lien and relied on the note for payment in order to allow Belhaven to secure a permanent loan.

Further, with regard to Mr. Kahao's argument that he signed the note in error due to defective construction work, entitling him to a setoff, compensation takes place by operation of law when two persons owe to each other sums of money or quantities of fungible things identical in kind, and these sums or quantities are liquidated and presently due. See Buck's Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1 Cir. 2/16/01), 808 So.2d 428, 431. In such a case, compensation extinguishes both obligations to the extent of the lesser amount. LSA-C.C. art. 1893. A claim is liquidated when the debt is for an amount capable of ascertainment by mere calculation in accordance with accepted legal standards. Buck's Run Enterprises, Inc., 808 So.2d at 431-32. Mr. Kahao cannot plead an offset of a liquidated sum under a note with an unliquidated contract claim by Belhaven against Rad-Ton. Furthermore, the claims against Rad-Ton for defective construction work were brought by Belhaven and not by Kahao individually. Thus, we find that Mr. Kahao failed to present sufficient evidence to show that he signed the promissory note in error.

Nor does the record establish that Mr. Kahao signed the note under duress so as to vitiate his consent. See LSA-C.C. art. 1959. A threat of doing a lawful act or a threat of exercising a right does not constitute duress, although a threat of doing an act that is lawful in appearance only may constitute duress. See LSA-C.C. art. 1962 ; Grezaffi v. Smith, 93-1696 (La.App. 1 Cir. 6/24/94), 641 So.2d 210, 214. More specifically, the threat to file a lawsuit for the purposes of collecting sums owed does not amount to duress. Cooper v. Southern Hunting Products, L td. , 39,166 (La.App. 2 Cir. 12/22/04), 891 So.2d 91, 96.

Upon our de novo review, we find that no genuine issues of material fact exist, and Rad-Ton is entitled to judgment as a matter of law. Mr. Kahao admitted that Belhaven did not sign the promissory note. Although he alleged that his consent in signing the note in his individual capacity was vitiated because of error or duress, the record unequivocally established that there was no error in the cause of the contract and the alleged duress was not of the type sufficient to vitiate his consent. Accordingly, the trial court properly granted the motion for summary judgment.

CONCLUSION

For the foregoing reasons we affirm the trial court's October 25, 2016 judgment granting summary judgment in favor of the third-party defendant, Rad-Ton, L.L.C. and against the third-party defendant, Roger Kahao, in the amount of $75,043.57. All costs of this appeal are assessed against Mr. Kahao.

AFFIRMED.

      The record indicates that the petition was filed by facsimile transmission on October 27, 2014, and the original filed on November 3, 2014. See LSA-R.S. 13:850.

      Article 966E provides:
      E. A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties.

      Because we hold that the summary judgment was final pursuant to Article 1915A, we need not discuss Mr. Kahao's argument that he was denied constitutional due process in that he did not receive adequate notice of the finality of the judgment. Nevertheless, we note that on October 13, 2016, counsel for Mr. Kahao sent a letter to the trial court objecting to the form of the judgment submitted by counsel for Rad-Ton. After considering same, the trial court signed the judgment designating it as a final judgment. Thereafter, Mr. Kahao again raised the designation of the judgment in his motion for new trial. After a hearing and considering the argument of both sides, the trial court denied the motion. Mr. Kahao was clearly afforded an opportunity to be heard.


author: THERIOT, J.

text:
    Willie F. WALTON v. Dustin GUIDRY, Clint Edward Givens, and A-Port, LLC
    NO. 2017CA0784
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: January 04, 2018
    Gregory E. Bodin, Christopher M. Vitenas, Baton Rouge, Louisiana, Counsel for Third Party, Defendant-Appellant, Louisiana Workers' Compensation Corporation
    Henry H. LeBas, F. Douglas Ortego, Lafayette, Louisiana, Counsel for Third Party, Plaintiffs-Appellees, Original USA General Labor, LLC and American Interstate Insurance Company
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   THERIOT, J.

Louisiana Workers' Compensation Corporation ("LWCC") appeals the judgment of the Twenty-First Judicial District Court granting summary judgment in favor of Original USA General Labor, LLC ("Original USA") and its insurer, American Interstate Insurance Company ("AIIC"). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

A-Port, LLC ("A-Port") is a shorebase facility located in Grand Isle, Louisiana that provides crane, forklift, storage, and other services to its customers by transporting inbound and outbound equipment and materials. Occasionally, A-Port requires additional personnel when its permanent employees are on leave or there is an increased demand for services by customers. On June 20, 2012, A-Port entered into a letter agreement with Original USA in which Original USA agreed to provide riggers to A-Port for a fixed rate of $23.00 per hour.

Willie Walton ("Mr. Walton") was hired by Original USA to work as a rigger beginning on May 23, 2011, and was assigned to provide labor services to businesses in the Lafourche/Terrebonne Parish areas. Mr. Walton worked at the A-Port facility from October 20, 2012, until the day he was injured, October 31, 2012. Mr. Walton was injured while assisting the crane operator, Dustin Guidry, in the loading of an industrial mud tank onto a flatbed trailer. Another employee, Clint Givens, was also assisting with loading the mud tank. During this process, Mr. Walton suffered injuries to his left foot and ankle.

Mr. Walton filed a tort suit against Mr. Guidry, Mr. Givens, and A-Port, alleging that the accident and his injuries were caused by the negligence of A-Port and its employees. The defendants in that case filed a motion for summary judgment, contending that they were entitled to judgment as a matter of law on the basis that A-Port was a borrowing employer and, thus, immune from tort liability. The trial court granted their motion for summary judgment, finding there was no issue of material fact that Mr. Walton was the borrowed employee of A-Port and that Mr. Walton's right of recovery was therefore limited to workers' compensation. Upon appeal, this Court affirmed the trial court's findings and held that Mr. Walton was a borrowed employee of A-Port. See Walton v. Guidry , 2015-0196 (La. App. 1 Cir. 9/18/15); 2015 WL 5515725 (unpublished ).

Thereafter, Original USA and its insurer, AIIC, sought and obtained permission to file a petition as intervenors for a third-party demand against A-Port and A-Port's workers' compensation insurer, LWCC. In their third-party demand, Original USA and AIIC alleged that a contract existed between Original USA and A-Port that required A-Port (as a borrowing employer) and LWCC to reimburse Original USA and AIIC for the Longshore & Harbor Workers' Compensation Act ("workers' compensation") benefits and to assume responsibility for the payment of future workers' compensation benefits to Mr. Walton.

On August 10, 2016, LWCC filed an answer to Original USA and AIIC's third party demand, along with a reconventional demand seeking a declaratory judgment that the written contract between A-Port and Original USA barred Original USA and AIIC from seeking reimbursement or recovery of workers' compensation benefits paid from A-Port or LWCC. On August 24, 2016, Original USA and AIIC filed a motion for summary judgment. In their motion, Original USA and AIIC alleged that LWCC was the responsible carrier on Mr. Walton's workers' compensation claim. Specifically, Original USA and AIIC argued that because A-Port was a borrowing employer, LWCC (as A-Por's workers' compensation insurer) was required to pay the workers' compensation benefits of Mr. Walton and to reimburse AIIC for any workers' compensation benefits it had already paid to Mr. Walton. Original USA and AIIC further argued that because the contract contained no valid and enforceable indemnification agreement, no "waiver of subrogation," and no reference to "alternate employer coverage," LWCC was the responsible carrier on this claim. Original USA and AIIC based their arguments primarily on the holding of Sanchez v. Harbor Const. Co., Inc. , 2008-0316 (La. App. 4 Cir. 10/1/08); 996 So.2d 584, writ denied, 2008-2572 (La. 1/9/09); 998 So.2d 720.

In its memorandum in opposition to Original USA and AIIC's motion for summary judgment, LWCC argued that the contract between Original USA and A-Port required that Original USA procure workers' compensation insurance to all Original USA payroll employees, including Mr. Walton. In support of this argument, LWCC points to the contract that provided the hourly rate for riggers, which stated that the hourly rate "includes Original USA General Labor providing the required General Liability and Workers Compensation Insurance for our personnel." LWCC further argued that the AIIC policy issued to Original USA contained an alternate employer endorsement, which, along with the pay rate information, indicates that A-Port would be insured for its compensation obligations as Walton's borrowing employer and that recovery would be waived against the insurer of the borrowing employer. LWCC argued that Original USA and AIIC were therefore not entitled to summary judgment. AIIC argued in response that the alternate employer endorsement proffered by LWCC would not take effect unless there was a contractual requirement to trigger it. AIIC argued that there was no such trigger in the present case.

On November 29, 2016, the trial court granted the motion for summary judgment filed by Original USA and AIIC, dismissing the claims asserted by LWCC in its reconventional and third party demands. On January 6, 2017, the trial court amended its judgment and certified the judgment as final for appeal purposes pursuant to La. C.C.P. art. 1915(B). This appeal followed.

ASSIGNMENTS OF ERROR

Appellant assigns the following as error:

(1) The Trial Court erred in ruling that LWCC is the responsible carrier for Walton's LHWCA benefits when A-Port is an additional insured under Original USA's policy with AIIC, which further states that AIIC will not pursue LWCC as insurer of A-Port, the alternate employer, to recoup any of the benefits it paid to Walton.
(2) In the alternative, if this Court determines that there are factual issues that preclude rendering judgment in favor, then those factual issues preclude rendering judgment in AIIC's favor. If this Court finds any ambiguity in granting LWCC's motion set forth in this appeal, then the judgment of the Trial Court should be reversed and this issue remanded to the Trial Court for the strict construction of AIIC's policy when it seeks to narrow the coverage to its additional insured.

STANDARD OF REVIEW

In determining whether summary judgment is appropriate, appellate courts review summary judgment de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Louisiana Workers' Compensation Corp. v. Landry , 2011-1973 (La. App. 1 Cir. 5/2/12); 92 So.3d 1018, 1021. Accordingly, an appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id.

DISCUSSION

Assignment of Error # 1

Appellants first argue that LWCC is not the responsible carrier for Mr. Walton's benefits because (1) under the insurance policy and the alternate employer endorsement, A-Port is an additional insured, and (2) the insurance policy states that AIIC will not pursue LWCC, as A-Port's insurer, to recoup any of the benefits it paid Walton.

In Total Marine Services, Inc. v. Director, Officer of Worker's Compensation Programs, U.S. Dep't of Labor , 87 F.3d 774, 779 (5th Cir. 1996), the United States Fifth Circuit Court of Appeals held that "a borrowing employer is required to pay the compensation benefits of its borrowed employee, and, in the absence of a valid and enforceable indemnification agreement , the borrowing employer is required to reimburse an injured worker's formal employer for any compensation benefits it has paid to the injured worker." (Emphasis added). Accordingly, LWCC, as the insurer of A-Port, the borrowing employer, is required to pay the benefits of Mr. Walton unless a valid and enforceable indemnification agreement exists between Original USA and A-Port. Therefore, the primary issue of this case is whether a valid and enforceable indemnification agreement exists between Original USA and A-Port. To make this determination, we must decide whether the pay rate information and the alternate employer endorsement are enough to constitute an express indemnity agreement.

Indemnity in its most basic sense means reimbursement, and may lie when one party discharges a liability which another rightfully should have assumed. Naquin v. Louisiana Power & Light Co. , 2005-2104 (La. App. 1 Cir. 11/17/06); 951 So.2d 228, 231. The general rules governing the interpretation of contracts apply in construing a contract of indemnity. Id. Interpretation of a contract is the determination of the common intent of the parties. La. Civ. Code art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. Civ. Code art. 2046. Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. La. Civ. Code art. 2051. When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose. La. Civ. Code art. 2054.

The Pay Rate Information

The pay rate information provides that the pay rate for riggers is $23.00 per hour and states in relevant part that this rate "is a per hour/per man composite rate that includes Original USA General Labor, LLC providing the required General Liability and Workers Compensation Insurance for our personnel." Appellants argue that this provision triggers the alternate employer endorsement in AIIC's policy. In response, Appellees argue that the pay rate information merely conveys that Original USA agrees to purchase insurance coverage that provides workers' compensation for its direct employees like Mr. Walton.

We agree with Appellees. The pay rate information is similar to a clause analyzed in Sanchez v. Harbor Const. Co., Inc. , 2008-0316 (La. App. 4 Cir. 10/1/08), 996 So.2d 584. In Sanchez , a construction worker was injured while working as a borrowed employee. Sanchez , 996 So.2d at 585. The borrowed employer attempted to deny liability by claiming that a clause in the contract between them and the original employer contained a valid and enforceable indemnification agreement. Id. The clause in question stated, "[The original employer] agrees to provide workers' compensation and general liability coverages within the limits required by [the borrowing employer]." Id. at 588. On appeal, the fourth circuit found that the operative provision of the contract, which was drafted by the original employer, failed to expressly provide for indemnity. Id. The fourth circuit further found that, in light of the contract as a whole and the omission of any reference in any form to "indemnity" in the contract provision, the only reasonable interpretation of the contract was that the original employer was required to carry workers' compensation insurance. Id. The same reasoning applies to the pay rate information provided by Original USA, which simply conveys that Original USA will provide "General Liability and Workers Compensation Insurance" for their personnel. The pay rate information makes no reference to indemnification. As such, the pay rate information fails to establish an express obligation by Original USA to indemnify A-Port.

The Alternate Employer Endorsement

The alternate employer endorsement, which is contained within AIIC's workers' compensation policy, states in relevant part:

This endorsement applies only with respect to bodily injury to your employees while in the course of special or temporary employment by the alternate employer in the state named in the Schedule. Part One (Workers Compensation Insurance) and Part Two (Employers Liability Insurance) will apply as though the alternate employer is insured. If an entry is shown in Item 3 of the Schedule the insurance afforded by this endorsement applies only to work you perform under the contract or at the project named in the Schedule.
Under Part One (Workers Compensation Insurance) we will reimburse the alternate employer for the benefits required by the workers compensation law if we are not permitted to pay the benefits directly to the persons entitled to them.
The insurance afforded by this endorsement is not intended to satisfy the alternate employer's duty to secure its obligations under the workers compensation law. We will not file evidence of this insurance on behalf of the alternate employer with any government agency.
We will not ask any other insurer of the alternate employer to share with us a loss covered by this endorsement.
Premium will not be charged for employees while in the course of special or temporary employment by the alternate employer.
The policy may be canceled according to its terms without sending notice to the alternate employer.
Part Four (Your duties If Injury Occurs) applies to you and the alternate employer. The alternate employer will recognize our right to defend under Parts One and Two and our right to inspect under Part Six.

Schedule

1. Alternate Employer:

All alternate employers that are required by a written contract.

(Emphasis added).

Appellants argue that this alternate employer endorsement is triggered by the pay rate information and that the combination of these two documents results in A-Port becoming an additional insured of AIIC. In response, Appellees argue that the alternate employer endorsement only provides coverage to alternate employers that are required by a written contract. Appellees also point to another clause in the contract-entitled "WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT." This waiver states:

We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule, but this waiver applies only with respect to bodily injury arising out of the operations in the Schedule where you are required by a written contract to obtain this waiver from us.
This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule.
This premium for this endorsement is shown in the Schedule.
...
(x) Blanket Waiver
Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver.
(Emphasis added).

According to Appellees, this waiver means that AIIC "will only provide a waiver of subrogation, as would be required for LWCC to escape its obligation to pay back [AIIC] for the workers' compensation benefits already paid to Walton, if Original USA 'has agreed by written contract to furnish this waiver.' " Appellees therefore argue that because there is no additional written contract that requires alternate employer coverage and/or a waiver of subrogation, LWCC is still responsible for the payment of Mr. Walton's workers' compensation benefits.

We agree with Appellees. The plain language of both the alternate employer endorsement and the waiver of subrogation provision indicate that an additional written contract is needed to enforce indemnification. There is no written contract that labels A-Port as an alternate employer, nor is there a written contract providing a waiver of subrogation clause. Accordingly, neither the alternate employer endorsement nor the waiver of subrogation has any effect.

We find that the contract does not contain a valid and enforceable indemnification agreement that relieves LWCC of its obligation to reimburse AIIC for compensation benefits AIIC previously paid to Mr. Walton and its obligation to assume responsibility for payment of future workers' compensation benefits to Mr. Walton. Therefore, this assignment of error is without merit.

Assignment of Error # 2

Appellants argue that if there are factual issues that preclude rendering judgment in LWCC's favor, then those same factual issues also preclude rendering judgment in AIIC's favor. We do not, however, find any existing issues of material fact. As previously stated, the content of the workers' compensation policy issued by AIIC does not expressly provide for indemnification. Accordingly, LWCC is the responsible carrier on Mr. Walton's claim and must reimburse AIIC for all benefits paid to date and assume responsibility for all future payments to Mr. Walton.

This assignment of error is without merit.

DECREE

The judgment of the Twenty-First Judicial Court granting the motion for summary Judgment filed by American Interstate Insurance Company and Original USA General Labor, LLC is affirmed. All costs of this appeal are assessed to Appellant, Louisiana Workers' Compensation Corporation.

AFFIRMED.

      See 33 U.S.C. § 901, et seq.