author: HUGHES, J. WEIMER, J., additionally concurring.

text:
    Errol G. WILLIAMS, Assessor, Parish of Orleans v. OPPORTUNITY HOMES LIMITED PARTNERSHIP and Louisiana Tax Commission
    No. 2017-C-0955 No. 2017-C-0957
    Supreme Court of Louisiana.
    March 13, 2018
   HUGHES, J.

At issue in these consolidated cases is the correctness of administrative decisions issued by the Louisiana Tax Commission ("Commission") on review of the valuations, for the 2014 and 2015 tax years, by the Orleans Parish Tax Assessor ("Assessor") of a low-income housing development, owned by Opportunity Homes Limited Partnership ("Opportunity Homes"), for purposes of assessment of ad valorem taxes. The Commission ruled in favor of Opportunity Homes for both tax years. The administrative decisions were upheld by the district court but reversed by the appellate court. For the reasons that follow, we reverse the appellate court and reinstate the assessment values as determined by the Commission.

FACTS AND PROCEDURAL HISTORY

The factual and procedural history of this case was concisely set forth by the appellate court as follows:

Opportunity Homes describes itself as a "scattered-site, low income affordable housing development." It consists of thirty-two (32) single- and double-unit residential buildings. The separate properties are connected by way of a Tax Credit Regulatory Agreement ("TCRA"). Opportunity Homes notes the TCRA prohibits separation and sale of the various properties, and restricts the chargeable rents to "no more than sixty percent (60%) of the Area Median Income ("AMI")" for an extended period of time, but the rates are even lower for some buildings.
Pursuant to the powers and authority delegated to him by La. R.S. 47:1903, La. R.S. 47:1957, and La. R.S. 47:2323, Assessor Williams determined the fair market value ("FMV") of Opportunity Homes' scattered-site properties using what is known as the "market approach." In using this particular approach, Assessor Williams determined the FMV of Opportunity Homes' properties to be $4,200,900 and $4,083,610 for tax years 2014 and 2015, respectively.[ ]
Pursuant to its authority under La. Const. Art. VII, § 18, the Commission reviewed the "correctness" of Assessor Williams' assessment. At a January 13, 2015 hearing, counsel for Opportunity Homes noted that in 2013, the same properties were valued at $1,525,000, and assessed accordingly. The Commission relied on assessments by Randy Harrington, its own staff appraiser, who used what is known as the "income approach" and reached FMVs of $1,525,000 for both tax years 2014 and 2015, which assessments specifically excluded the value of "Low Income Housing Tax Credits" ("LIHTCs") received by the taxpayer for encumbering the properties with below-market-value rents. Counsel for Opportunity Homes noted that pursuant to adopted and promulgated regulations, the income approach is the "recommended" approach for determining the FMV of "affordable rental housing." Based on the foregoing, the Commission moved to accept the staff recommendations as to each tax year.
As a result of the Commission's actions, on September 2, 2015, Assessor Williams commenced suit in the district court pursuant to La. R.S. 47:1998, La. R.S. 47:1989 and La. R.S. 49:964. The district court affirmed the Commission's decision, finding that the Commission's decision "was not in violation of any constitutional or statutory provisions, was not in excess of its statutory authority, was not made upon unlawful procedure, or affected by other error of law, was not arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." The district court further noted the decision "was clearly supported by the testimony and preponderance of the evidence before it, where [the Commission] had the opportunity to judge the credibility of witnesses by first-hand observation."

Williams v. Opportunity Homes Limited Partnership , 16-1185, pp. 1-3 (La. App. 4 Cir. 5/10/17), 220 So.3d 188, 189-90. Upon review, the appellate court ruled that the Commission's decisions were "in violation of statutory provisions, in excess of its authority, ... based upon unlawful procedures," and "legally incorrect." Id. , 16-1185 atp. 4, 220 So.3d at 191. Accordingly, the appellate court reversed and reinstated the Assessor's fair market values for the 2014 and 2015 tax years. Id.

Both Opportunity Homes and the Commission sought review in this court, and we granted the writ applications. Williams v. Opportunity Homes Limited Partnership , 17-0955, 17-0957 (La. 10/27/17), 228 So.3d 1228.

Opportunity Homes urges this court to reverse, contending the appellate court decision: is in conflict with other jurisprudence, harms the administrative authority of the Commission; negatively impacts statewide uniformity for ad valorem property assessment and taxation; misinterprets jurisprudence and law (including the Louisiana Administrative Procedure Act ("APA"), La. R.S. 49:950 et seq., relative to review of administrative agency decisions); and, alternatively, should have remanded the matter to the Commission to determine whether the market/sales comparison approach could have been applied to value the subject property so as to ensure statewide uniformity. The Commission additionally asserts that the appellate court erred in reversing the decisions of the Commission and the district court since there was "no evidence to reinstate prior assessed values of the Orleans Parish Assessor."

LAW AND ANALYSIS

The essence of the dispute between the Assessor and Opportunity Homes is whether the method of valuing Opportunity Homes' low-income housing development for purposes of ad valorem taxation should be via the "market approach," as asserted by the Assessor, or via the "income approach," as asserted by Opportunity Homes.

As stated in La. Const. Art. VII, § 18 (A), "[p]roperty subject to ad valorem taxation shall be listed on the assessment rolls at its assessed valuation, which ... shall be a percentage of its fair market value. The percentage of fair market value shall be uniform throughout the state upon the same class of property." Each assessor is authorized by La. Const. Art. VII, § 18 (D), to "determine the fair market value of all property subject to taxation within his respective parish or district except public service properties, which shall be valued at fair market value by the Louisiana Tax Commission or its successor."

The fair market value shall be determined in accordance with criteria established by law, which must be uniformly applied throughout the state. La. Const. Art. VII, § 18 (D); La. R.S. 47:2323(A). Fair market value is defined by La. R.S. 47:2321 as "the price for property which would be agreed upon between a willing and informed buyer and a willing and informed seller under usual and ordinary circumstances; it shall be the highest price estimated in terms of money which property will bring if exposed for sale on the open market with reasonable time allowed to find a purchaser who is buying with knowledge of all the uses and purposes to which the property is best adapted and for which it can be legally used."

In furtherance of maintaining the uniformity required by La. Const. Art. VII, § 18 (D), La. R.S. 47:2323(A) provides that "[u]niform guidelines, procedures and rules and regulations as are necessary to implement said criteria shall be adopted by the Louisiana Tax Commission only after public hearings held pursuant to the Administrative Procedure Act." Furthermore, each assessor is required by Section 2323(B) to "follow the uniform guidelines, procedures, and rules and regulations in determining the fair market value of all property subject to taxation within his respective parish or district," and "[a]ny manual or manuals used by an assessor shall be subject to approval by the Louisiana Tax Commission or its successor agency."

Three approaches for determining fair market value are set forth in Section 2323(C), as follows: "The fair market value of real and personal property shall be determined by the following generally recognized appraisal procedures: the market approach, the cost approach, and/or the income approach." In utilizing the market approach, an assessor is required to "use an appraisal technique in which the market value estimate is predicated upon prices paid in actual market transactions and current listings." La. R.S. 47:2323(C)(1). In utilizing the cost approach, an assessor is required to "use a method in which the value of a property is derived by estimating the replacement or reproduction cost of the improvements; deducting therefrom the estimated depreciation; and then adding the market value of the land, if any." La. R.S. 47:2323(C)(2). In utilizing the income approach, an assessor is required to "use an appraisal technique in which the anticipated net income is capitalized to indicate the capital amount of the investment which produces the net income." La. R.S. 47:2323(C)(3).

Revised Statute 47:1837(D) requires: "In order to promote compliance with the requirements of the constitution and laws of the state, the tax commission shall issue and, from time to time, may amend or revise rules and regulations containing minimum standards of assessment and appraisal performance ...." In compliance with that responsibility, the Commission issued the following recommendation in 2009, in La. Admin. Code, Title 61, Part V, § 303(C), which provides:

In assessing affordable rental housing, the income approach is recommended. As defined in this Section, affordable rental housing means residential housing consisting of one or more rental units, the construction and/or rental of which is subject to Section 42 of the Internal Revenue Code ( 26 USC 42 ), the Home Investment Partnership Program under the Cranston-Gonzalez National Affordable Housing Act ( 42 USC 12741 et seq. ), the Federal Home Loan Banks Affordable Housing Program established pursuant to the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) of 1989 ( Public Law 101-73 ), or any other federal, state or similar program intended to provide affordable housing to persons of low or moderate income and the occupancy and maximum rental rates of such housing are restricted based on the income of the persons occupying such housing.

(Emphasis added.)

Notwithstanding the recommendation of La. Admin. Code, Title 61, Part V, § 303(C), that the income approach be employed by assessors in the valuation of affordable rental housing developments, the Assessor employed the market approach in his valuation of the Opportunity Homes property for the 2014 and 2015 tax years.

Paragraph (E) of La. Const. Art. VII, § 18, states that "[t]he correctness of assessments by the assessor shall be subject to review first by the parish governing authority, then by the Louisiana Tax Commission or its successor, and finally by the courts, all in accordance with procedures established by law." See also ANR Pipeline Company v. Louisiana Tax Commission , 02-1479, p. 5 (La. 7/2/03), 851 So.2d 1145, 1149 ("[C]orrectness challenges are subject to review under La. Const. Art. 7, § 18 (E) by the parish governing authority and the [Commission] before being reviewed by Louisiana courts ....") (footnote omitted).

"Judicial review of decisions of the [Commission] is authorized by La. R.S. 47:1998(A)(1) ; the extent of that review is governed by La. R.S. 49:964(F) and (G)of the Administrative Procedure Act." Panacon v. Louisiana Tax Commission , 97-2093, p. 4 (La. App. 1 Cir. 1/8/99), 747 So.2d 572, 573-74 ; Kansas City Southern Railway Company v. Louisiana Tax Commission , 95-2319, p. 3 (La. App. 1 Cir. 6/28/96), 676 So.2d 812, 815. See also La. R.S. 49:967(A) ("Chapter 13 [the Administrative Procedure Act] of Title 49 of the Louisiana Revised Statutes of 1950 shall not be applicable to the Board of Tax Appeals, the Department of Revenue, with the exception of the Louisiana Tax Commission that shall continue to be governed by this Chapter in its entirety, unless otherwise specifically provided by law ....").

Review is confined to the administrative record established before the Commission. See La. R.S. 49:964(F) ; Panacon v. Louisiana Tax Commission , 97-2093 at p. 4, 747 So.2d at 574. See also Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board , 01-0185, p. 7 (La. 10/16/01), 797 So.2d 656, 661 (holding that review of an administrative decision is limited to the administrative record and a district court may not receive evidence when sitting as an appellate court).

Pursuant to La. R.S. 49:964(G), the reviewing court may only reverse or modify the agency decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (6) not supported and sustainable by a preponderance of evidence as determined by the reviewing court. The reviewing court shall make its own determination and conclusions of fact by a preponderance of evidence, based upon its own evaluation of the record reviewed in its entirety upon judicial review; however, when the agency had the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues. La. R.S. 49:964(G).

In its review of the Assessor's decision to apply the market approach, in this case, to value Opportunity Homes' affordable housing development, the Commission concluded that the Assessor erred in failing to utilize the recommended income approach. We first examine the administrative record established before the Commission to ascertain whether there was a preponderance of the evidence to support the Commission's conclusion.

The Commission stated in both of its August 6, 2015 written decisions that the "pre-filed" exhibits of the Assessor and Opportunity Homes were "entered into the record." Also, the Commission's staff appraiser, Randy Harrington, testified at the January 13, 2015 hearing before the Commission, and his written appraisals of the Opportunity Homes property for the 2014 and 2015 tax years, consisting of 27 pages each, were introduced into evidence.

Mr. Harrington's appraisal reports described the property as an "LIHTC Rent Restricted Scattered Site Residential Housing Complex," consisting of 32 buildings and 54 rental units, used as low income multi-family housing. With respect to the methodology used in his appraisals, each appraisal report stated:

The sales comparison approach will not be utilized in establishing an estimated market value in this report. The market for Low Income Housing Tax Credit (LIHTC) complexes differ[s] from typical residential investment properties, due to inherent restrictions on income return, and the inability of the property owners to sell the projects without the expressed approval of the federal government and then only after certain regulatory requirements have been satisfied. These government subsidized projects present circumstances not normally found in other similar commercial properties.[ ]
* * *
The Income Approach to Value is the most reliable indicator of value for income producing properties and should be relied upon, when detailed financial income and expense is available and/or market data information is available. The income approach to value in this appraisal report will utilize the actual gross income, actual rents collected and expenses from the income/expense statements supplied by the taxpayer. Due to the restricted rents enforced on the subject property the Income Approach to Value is the only applicable approach utilized in the report.
* * *
The Sales comparison approach to value was not utilized in the analysis. There have been no sales of LIHTC properties that we were able to locate within the state. According to the information gathered for this assignment, these properties are not typically sold due to the regulations and restrictions associated with these type properties.

In addition to a location map, subject photograph, neighborhood, site and demographics statements, statements of project parameters and definitions, Mr. Harrington's appraisal reports also included his effective tax rate calculation, income analysis, reconciliation analysis, income and expense balance sheets provided by Opportunity Homes, and a statement of conditions and qualifications. Mr. Harrington certified in his appraisal reports that, for each tax year, the value of the Opportunity Homes property was $1,525,000. Mr. Harrington testified, during the January 13, 2015 hearing before the Commission, in support of his written appraisal reports.

None of the factual data that formed the basis for Mr. Harrington's 2014 and 2015 appraisals was directly contradicted by any evidence submitted by the Assessor. The only evidence presented to the Commission by the Assessor was "pre-filed" prior to the hearing and consisted of: (1) appeal documents for the 2014 tax year, consisting of three pages for each of the 32 housing units; one page was the Assessor's letter notifying Opportunity Homes of his appeal to the Commission and the other two pages were appeal documents for the 2014 tax year that were presented to the Commission, stating: the municipal address and square footage of each unit; the Assessor's 2014 tax year assessment; the amount per square foot utilized by the Assessor to calculate fair market value for each unit (ranging from $44.64 to $145.83 per square foot); a statement that the fair market value listed was "supported by comparable sales data;" and the Board of Review's valuation for each unit; (2) a 2010 article from The Appraisal Journal, entitled "Appraising Low-Income Housing Tax Credit Real Estate; and (3) a 2006 "Advisory Opinion 14" from The Appraisal Foundation. No other evidence was presented by the Assessor during the Commission hearing, and the Assessor called no witnesses during the hearing.

The Assessor presented the Commission with no testimony or documentation to explain how he arrived at the assessment values for Opportunity Homes' 32 housing units, nor was any information revealed concerning the "comparable sales data" the Assessor used to support his valuations or whether the low-income housing tax credits were incorporated within that valuation. In contrast, the lengthy and detailed appraisals made by Randy Harrington explained that there were no sales of low income housing tax credit ("LIHTC")

complexes found within the entire state, which could be used as comparables to Opportunity Homes' LIHTC property. Mr. Harrington further explained that LIHTC complexes differ from typical residential investment properties because the rents are limited to below other rental property in the area, that sales of the LIHTC properties must be approved by federal government after regulatory requirements have been met, and that LIHTC properties are not typically sold because of the stringent regulations and requirements. However, because LIHTC properties are income-producing and financial data, including rents received and expense statements, are available, the income approach is the most reliable indicator of the value of such properties. Mr. Harrington further went into great detail as to how he derived the total fair market value of the Opportunity Homes LIHTC development, in the amount of $1,525,000 for both the 2014 and 2015 tax years.

It is important to keep in mind that a fair market value, as defined by La. R.S. 47:2321, supra, involves the determination of the highest price that a property could bring on the open market, which would be: (1) agreeable to a willing and informed buyer and seller; (2) under usual and ordinary circumstances; (3) allowing a reasonable time for finding a buyer with knowledge of all the legally available uses and purposes for which the property is best adapted. As applied in the case of the Opportunity Homes LIHTC properties, a well-informed buyer would be aware of all the federal regulations governing LIHTC properties, including the 30-year term during which the property would be rent-restricted to a minimum percentage of low-income tenants. Such impediments would negatively affect the value of the property and would render it so economically dissimilar to unrestricted and unregulated commercial property as to prohibit fair market value comparison. Because the market approach to determining fair market value, as stated in La. R.S. 47:2323(C)(1), involves the use of a comparison to "prices paid in actual market transactions and current listings" and there are no actual available market transactions involving LIHTC properties, it would be impossible to perform a market approach appraisal that produced an accurate fair market value for LIHTC properties.

Thus, we conclude that the preponderance of the evidence supported the Commission's determination that the income approach was the appropriate method for determining the property values and that $1,525,000 was the correct fair market value for each tax year at issue. Having ruled on this basis, we find no need to address the remaining issues raised in the writ applications.

We find no conflict between La. R.S. 47:2323, providing parish assessors a choice of three generally recognized appraisal methods to utilize to determine fair market value (the market approach, the cost approach, and/or the income approach), and La. Admin. Code, Title 61, Part V, § 303(C), which recommends the use of the income approach for assessing affordable rental housing, such as the Opportunity Homes LIHTC development. This case turned purely on the facts established before the Commission, proving that the income approach was the more appropriate method for determining fair market value in this case. Consequently, the appellate court erred in holding that the Commission's decisions were in violation of statutory provisions, in excess of its authority, based upon unlawful procedures, and legally incorrect.

DECREE

Accordingly, we reverse the appellate court rulings and reinstate the Louisiana Tax Commission decisions, modifying the Orleans Parish Assessor's assessments of the fair market value of the Opportunity Homes Limited Partnership property to $1,525,000 for both the 2014 and 2015 tax year.

APPELLATE COURT JUDGMENT REVERSED; TAX COMMISSION DECISIONS REINSTATED .

WEIMER, J., additionally concurring.

I additionally concur in the opinion to emphasize this result is based on the limited record and the briefs and arguments of the parties to this litigation. See La. Const. art. VII, § 18.

      Thereafter, Opportunity Homes first requested review, as to the fair market values determined by the Assessor, before the Orleans Parish Board of Review, which reduced the valuation of the subject property to $1,525,000 for the 2014 tax year and maintained the Assessor's $4,083,600 valuation for the 2015 tax year. The Assessor appealed the Board of Review ruling on the 2014 tax year valuation ($1,525,000) to the Commission, and Opportunity Homes appealed the Board of Review ruling on the 2015 tax year valuation ($4,083,600) to the Commission.

      Paragraph B of La. Const. Art. VII, § 18, provides (in pertinent part):
      The classifications of property subject to ad valorem taxation and the percentage of fair market value applicable to each classification for the purpose of determining assessed valuation are as follows:
      Classifications Percentages 1. Land 10% 2. Improvements for residential purposes 10% 3. Electric cooperative properties, excluding land 15% 4. Public service properties, excluding land 25% 5. Other property 15%

      The responsibility of the Commission as the supervisory state agency over parish tax assessors is clear. See also La. R.S. 47:1957(A) ("All taxable property in the state, except public service properties, shall be assessed by the several assessors. The assessors shall be responsible, under the supervision of the tax commission , for listing and assessing all property within their respective parishes, except such property as is subject to direct assessment by the tax commission ....") (emphasis added); La. R.S. 47:1990 ("The tax commission may change or correct any and all assessments of property for the purpose of taxation, in order to make the assessments conform to the true and correct valuation ...."); Palmer v. Louisiana Forestry Commission , 97-0244 (La. 10/21/97), 701 So.2d 1300, 1303 ("When the legislature has declared its will and fixed a 'primary standard,' agencies such as the Commissions in the case sub judice have the power to 'fill up the details.' ").

      See La. R.S. 47:1835(A) ("The tax commission may appoint or employ all necessary agents, assistants, auditors, clerks, inspectors, investigators, or other experts and employees required in the defense, determination, or development of assessments, and assessment procedures, and valuation of property, including the hiring of experts such as legal counsel and analysts, auditors, appraisers, and witnesses ....").

      Although Mr. Harrington was a member of the Commission's staff, counsel for Opportunity Homes submitted Mr. Harrington's appraisals into evidence during the January 13, 2015 Commission hearing, stating, "We would ask that the commission accept [on] appeal as evidence, the appraisals of Mr. Harrington for both ... '14 and '15 ...." There was no objection by opposing counsel.

      The Assessor argues that, since Opportunity Homes failed to introduce the tax credit regulatory agreement ("TCRA") into evidence before the Commission (only proffering it in the district court), there is no record evidence establishing what restrictions encumber the subject property. However, the factual information appearing in Mr. Harrington's appraisals establishes the property as a low income housing tax credit ("LIHTC") complex and points out some of the resulting restrictions on the property. In addition, the petition for judicial review, filed by the Assessor in the district court, explicitly describes the nature of, and restrictive agreements relative to, the property, including its LIHTC status, the land use restriction agreement ("LURA") (which the Assessor therein acknowledges "depresses the rent that can be charged and, therefore, reduces the benefits of ownership") and the fact that a TCRA was executed.

      The extensive rules, regulations, and restrictions applicable to LIHTC property are set forth in 26 U.S.C. § 42. Pursuant to 26 U.S.C. § 42, a housing project may qualify for LIHTC status, if, in addition to meeting other requirements, a certain minimum percentage "of the residential units in such project are both rent-restricted and occupied by individuals whose income is 60 percent or less of area median gross income," and the property must remain affordable for at least 30 years (consisting of a 15-year "compliance period" and a 15-year "extended use period"). See 26 U.S.C. § 42(g). In addition, "scattered site projects" (buildings that would, but for their lack of proximity, be treated as a project for purposes of § 42 ) are required to be so treated if dwelling units in each of the buildings are rent-restricted residential rental units. See 26 U.S.C. § 42(g)(7). Further, tax credits may be "recaptured" on an LIHTC property if the building is disposed of, unless "it is reasonably expected that such building will continue to be operated as a qualified low-income building for the remaining compliance period," necessitating administrative approval of prospective purchasers. See 26 U.S.C. § 42(j). See also 26 U.S.C. § 42 ; 26 C.F.R. § 1.42-0 -26 C.F.R. § 1.42a-1 ; and La. R.S. 40:600.91(A)(3)(b) (relative to the Louisiana Housing Corporation, which handles the local LIHTC approval process).

      Although the Assessor's appeal documents, submitted to the Commission, state that the amount per square foot utilized to calculate fair market value for each unit was "supported by comparable sales data," the "comparable sales data" was not submitted by the Assessor to the Commission.

      We note that, even though the January 13, 2015 hearing transcript witness list included Thomas Sandoz and Jacqueline Frick of the "Orleans Parish Assessor's Office" and the Commission's August 6, 2015 decisions stated that the testimony of Mr. Sandoz was submitted into evidence, the hearing transcript reflects only that Mr. Sandoz was asked whether he had any comment, and he replied, "I don't have any."

      Counsel for the Assessor has asserted that the LIHTC credit amounts were not factored into his valuations of the Opportunity Homes property for purposes of the 2014 and 2015 assessments. However, we note that, in the Assessor's district court petition for judicial review, he alleged that the Commission decisions were erroneous in being "exclusive of all forms of income and benefits derived from the property, namely Low Income Housing Tax Credits." Further, one of the Assessor's assignments of error presented to the appellate court argued that LIHTC credit amounts should be included in the fair market value. See Williams v. Opportunity Homes Limited Partnership , 16-1185, at pp. 4-5, 220 So.3d at 191-92.

      However, we do not foreclose the possibility that appropriate LIHTC property comparables might become available in the future so as to make a market approach analysis feasible at that time.

      The appellate court stated, in pertinent part: "A plain reading of the statute supports the Assessor's position that he may use any of the three (3) generally-accepted methodologies in assessing affordable housing." Williams v. Opportunity Homes Limited Partnership , 16-1185 at p. 9, 220 So.3d at 194.


source: Caselaw Access Project

author: CRICHTON, J.

license: Public Domain

text:
    IN RE: Justice of the Peace Jeff SACHSE, Ward 1, Livingston Parish, State of Louisiana
    NO. 2017-O-2008
    Supreme Court of Louisiana.
    March 13, 2018
   CRICHTON, J.

This disciplinary proceeding was instituted by the Judiciary Commission of Louisiana ("Commission") against respondent, Justice of the Peace Jeff Sachse, Ward 1, Livingston Parish, State of Louisiana. The matter arose out of an anonymous complaint lodged against respondent in April 2013, alleging that he was arrested on several occasions for domestic abuse and simple battery of his now ex-wife, Lisa Rabalais. The Commission has alleged that respondent's conduct violated Canons 1 (a judge shall personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved) and 2A (a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary) of the Code of Judicial Conduct. For the reasons set forth below, we find respondent has violated the aforementioned Canons as alleged by the Commission, suspend respondent without pay for six months, and order him to reimburse and pay to the Commission $3,040.02 in costs.

FACTUAL AND PROCEDURAL BACKGROUND

Respondent, who is not a lawyer, was elected to the office of justice of the peace in September 1996. He has served continuously since that time. Respondent and his wife, Lisa Rabalais, were married in 1982 and are the parents of three adult children. On August 10, 2012, Ms. Rabalais moved out of the matrimonial domicile in Denham Springs. While Ms. Rabalais was packing her belongings into the car, the police were summoned to the home in response to complaints by Ms. Rabalais that respondent had grabbed her by the shirt to prevent her from leaving. On August 17, 2012, Ms. Rabalais filed a Petition for Protection from Domestic Abuse in the 21st Judicial District Court, citing the August 10th incident. She also alleged that respondent repeatedly contacted her after the incident "by phone[,] email and 3rd parties to get [her] to talk to him" and that he also made "threats" through her places of employment "trying to find [her] to talk."

Based on Ms. Rabalais' petition, Judge M. Douglas Hughes issued a Temporary Restraining Order ("TRO") that directed respondent not to, among other things, "abuse, harass, stalk, follow, or threaten" Ms. Rabalais. The order also specifically directed respondent not to contact Ms. Rabalais, go within one hundred yards of her residence or her personally, and to stay away from her places of employment. The TRO was in effect from August 17, 2012 to November 17, 2012. On August 27, 2012, respondent was personally served with a certified copy of the TRO. Respondent has admitted that he subsequently violated the TRO in the following instances:

(1) By installing a GPS tracking device on the community owned vehicle, a 2012 Chrysler 200, without Ms. Rabalais' knowledge or consent, in order to "aggravate" her;

(2) On December 3, 2012, respondent was aware that Ms. Rabalais was working her second job as a personal care attendant for a handicapped person who lived in the Collins Place Subdivision, located in unincorporated Livingston Parish. After Ms. Rabalais left the client's home, respondent pulled into the subdivision in front of Ms. Rabalais' vehicle, got out of his vehicle, and attempted to speak to Ms. Rabalais. Respondent stated that "they needed to talk," and then Ms. Rabalais drove away. Respondent's conduct violated La. R.S. 14:40.2, the statute defining stalking. As a result of a complaint made to the Livingston Parish Sheriff's Office, respondent was arrested for stalking on December 4, 2012.

(3) On February 6, 2013, respondent took the community owned vehicle, a 2012 Chrysler 200, without the knowledge or consent of Ms. Rabalais, for the purpose of harassing her, in violation of the statute defining stalking.

Respondent is also charged with violating the TRO in the following instances, which are not admitted:

(1) The Carroll Baptist Church incident-at the time of the issuance of the TRO, Ms. Rabalais was employed as an instructor and bus driver for the Livingston Activity Center, a facility for handicapped adults. On September 7, 2012, well after respondent was personally served with the TRO, Ms. Rabalais drove some of the Center's clients to the Carroll Baptist Church. While she attempted to unlock the door to the church, Ms. Rabalais saw respondent slowly drive by in his older model Chevrolet pick-up truck. Ms. Rabalais ran inside, locked the church doors, concealed herself, and called the Livingston Parish Sheriff's Office. Ms. Rabalais' co-worker, Karen Watts, testified during the hearing that she was at the church at the time in question, saw respondent's truck, and witnessed Ms. Rabalais' reaction (though she did not actually see respondent). For his part, respondent denied that he was intentionally following or stalking Ms. Rabalais. Instead, respondent testified that he was on the way to his attorney's office when, by coincidence, he saw Ms. Rabalais at the church. Though he described the encounter as pure coincidence, respondent admitted in his sworn statement that he knew that, as a part of her job, Ms. Rabalais escorts her clients to the Carroll Baptist Church.

(2) The Los Sombreros incident-on October 25, 2012, as Ms. Rabalais was leaving the Los Sombreros Mexican Restaurant, located in a strip mall shopping center in Walker, respondent spoke to her and said, "Hey Lisa, funny seeing you here." Ms. Rabalais' friend and co-worker, Velda Thornton, was present and agreed with Ms. Rabalais' version of events. Respondent testified that he saw Ms. Rabalais' car in the parking lot and, after he thought about it, decided to leave the area because of the TRO. He then saw Ms. Rabalais and decided to say something to her. He testified, "I can't swear to exactly what I said, but I'm going to paraphrase and say, hey, I'm leaving. Basically, I was letting her know that if she was-you know, had other things to do here, another little shop to go in or whatever, to tend to it, I'm leaving, you don't have to worry about me." (It should be noted that respondent purchased the GPS tracking device prior to this incident. Nevertheless, he denied that he used the GPS device to track Ms. Rabalais to the restaurant.)

(3) On February 21, 2013, respondent sat in the Chrysler 200 vehicle along Ms. Rabalais' bus route with a large sign in the front passenger window which read, "Please Call Me." After Ms. Rabalais drove past, respondent pulled up alongside her in an effort to ensure that Ms. Rabalais viewed the sign. On February 26, 2013, only five days later, Ms. Rabalais was traveling on her bus route when respondent once again pulled in front of her while the bus was idling in the turn lane of Highway 190 at Juban Road. In his testimony, respondent denied either incident ever happened. Based on the February 21, 2013 incident, Ms. Rabalais signed an affidavit of probable cause to support the issuance of a warrant for respondent's arrest for stalking. Respondent was arrested on February 27, 2013.

On June 20, 2013, respondent was charged with simple battery of Ms. Rabalais and simple robbery of Ms. Rabalais' friend, Velda Thornton, based on events that occurred on August 10, 2012, when Ms. Thornton assisted Ms. Rabalais in moving out of the matrimonial domicile.

Based on these charges, special conditions were added to respondent's bond, ordering that he have "no contact" with Ms. Thornton or Ms. Rabalais. The following incidents occurred after the "no contact" order was added to respondent's bond:

(a) On October 9, 2013, respondent blew his horn and was near Ms. Rabalais when she was driving a client home near Caraway Road.

(b) On October 17, 2013, Ms. Rabalais was once again driving her bus when she noticed respondent traveling in the same direction.

(c) On November 18, 2013, Ms. Velda Thornton was driving Ms. Rabalais' bus route when she had to slam her brakes to avoid a collision with a brown Chevrolet. She identified the driver as respondent.

(d) On January 25, 2014, Ms. Rabalais observed respondent staring at her while she was putting a package in her vehicle at Nawlin's Sports.

(e) On February 7, 2014, respondent approached Ms. Rabalais in a Wal-Mart in Central, Louisiana and said, "I promise I didn't know you were here and I am leaving now."

(f) On February 20, 2014, respondent followed Ms. Rabalais for approximately two miles while she was driving her regular bus route.

For all of these incidents, Ms. Rabalais made a report to the proper police department.

DISCIPLINARY PROCEEDINGS

As mentioned previously, an anonymous complaint was lodged against respondent in April, 2013, and a news report of recent felony arrests was posted on the website of THE LIVINGSTON PARISH NEWS on July 7, 2013, listing respondent as a person charged with simple robbery.

After providing the requisite notices of investigation to respondent, the Commission authorized and issued a Notice of Hearing, containing three counts, on September 27, 2016. The Commission alleged that respondent's conduct violated Canons 1 (a judge shall personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved) and 2A (a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary) of the Code of Judicial Conduct. The Commission further alleged that respondent engaged in persistent and public conduct prejudicial to the administration of justice that brought the judicial office into disrepute, in violation of La. Const. art. V, § 25 (C).

Judge Terri Love was appointed as a hearing officer to conduct proceedings in this matter pursuant to Supreme Court Rule XXIII, § 29. The Hearing Officer convened a hearing on March 21-22, 2017. At the beginning of the second day of the hearing, respondent entered into the record three written admissions regarding Counts One and Two of the Notice of Hearing, in which he admitted some, but not all, of the allegations in those counts. (These admissions relate to respondent's violations of the TRO, as set forth above.)

Following the hearing, the Hearing Officer filed findings of fact and conclusions of law with the Commission. Thereafter, the Commission established a briefing schedule, as required by Supreme Court Rule XXIII, § 29, and ordered respondent to appear on August 18, 2017, for questioning by the Commissioners. On December 1, 2017, the Commission filed its recommendation in this court, finding that the allegations of misconduct were proven by clear and convincing evidence and recommending that respondent be suspended without pay for six months. The matter was then set on this Court's docket for oral argument pursuant to Supreme Court Rule XXIII, § 14.

FINDINGS AND RECOMMENDATION OF THE COMMISSION

The Commission generally adopted the factual findings made by the Hearing Officer, as well as the Hearing Officer's proposed conclusions of fact and law. Briefly, these conclusions may be summarized as follows:

There is clear and convincing evidence that respondent violated the TRO with respect to the incident at Carroll Baptist Church, the placement of a GPS tracking device on the vehicle in Ms. Rabalais' possession, and the incident at the Los Sombreros Mexican Restaurant. By his own testimony, as well as the numerous exhibits in the record, respondent was distraught and "desperate" after Ms. Rabalais left him. The Hearing Officer found the testimony of Ms. Thornton and Ms. Rabalais to be credible. The fact that respondent placed a GPS tracking device on Ms. Rabalais' vehicle discounts any claims that his encounter at the restaurant was merely coincidental. This finding is further supported by the number of e-mails and communications from respondent to Ms. Rabalais prior to the incidents in question.

By failing to comply with the TRO, respondent failed to personally observe a high standard of conduct so as to preserve the integrity and independence of the judiciary, in violation of Canon 1 of the Code of Judicial Conduct, and failed to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A. Respondent also engaged in persistent and public conduct prejudicial to the administration of justice that brought the judicial office into disrepute, in violation of La. Const. art. V, § 25 (C).

There is clear and convincing evidence that respondent stalked Ms. Rabalais as defined by La. R.S. 14:40.2. With respect to the Collins Place Subdivision and February 6, 2013 Chrysler 200 incidents, respondent has admitted that his actions constituted stalking as defined by the statute. With respect to the incidents on February 21 and 26, 2013, the Hearing Officer found the testimony of Ms. Rabalais to be credible and that the evidence was proven by a clear and convincing standard. Ms. Rabalais' testimony was specific and corroborates the facts found in the police report and arrest warrant.

By violating La. R.S. 14:40.2, respondent failed to personally observe a high standard of conduct so as to preserve the integrity and independence of the judiciary, in violation of Canon 1, and failed to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A. Respondent also engaged in persistent and public conduct prejudicial to the administration of justice that brought the judicial office into disrepute, in violation of La. Const. art. V, § 25 (C).

According to La. R.S. 14:79(A)(3), the violation of a protective order includes the "willful disobedience of ... (a) An order issued by any state ... judge ... that a criminal defendant stay away from a specific person or persons as a condition of that defendant's release on bond."

With regard to the incidents that occurred after the "no contact" order was added to respondent's bond, the Hearing Officer acknowledged that although it is entirely possible that one of these encounters may have been a coincidence, the clear and convincing evidence shows that respondent had a pattern of following and approaching his former wife on a frequent basis after the June 27, 2013 "no contact" order was signed. Accordingly, the Hearing Officer found that respondent violated La. R.S. 14:79(A)(3)(a).

By violating the special conditions of his bond, respondent failed to personally observe a high standard of conduct so as to preserve the integrity and independence of the judiciary, in violation of Canon 1, and failed to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A. Respondent also engaged in persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, in violation of La. Const. art. V, § 25 (C).

Notwithstanding his many denials regarding his conduct, the Hearing Officer noted that respondent appeared to be remorseful about his actions toward Ms. Rabalais and embarrassed by his behavior. Although not in any way an excuse for his actions, respondent's conduct appeared to stem from his difficulty in moving on from his marriage and his desire to spark a reconciliation process. On the other hand, some of respondent's actions were calculated to "aggravate" and, more troubling, harass Ms. Rabalais. Furthermore, respondent's repeated claims that his encounters with Ms. Rabalais were just a coincidence do not extend to every encounter in this case, as shown by the placement of the GPS device on Ms. Rabalais' vehicle. Finally, respondent's pattern of harassment of Ms. Rabalais during the course of over a year and a half shows a pattern of conduct that clearly and unequivocally rises above the threshold of actionable judicial misconduct despite the lack of any judicial findings of criminal liability.

The Hearing Officer also noted that petitioner made admissions that significantly shortened the hearing, thereby decreasing the expenses associated with the hearing. The admissions show that respondent has taken responsibility for some of his most egregious conduct, despite also denying the seriousness of some of his behavior.

At his appearance before the Commission, respondent continued to acknowledge that some of his actions were improper and expressed remorse for this behavior:

When one goes through a divorce or something of that nature, I think they are subject to do things they otherwise normally would not do. At the time, you know, I didn't look at it from the same perspective that I'm looking at it now.... I do regret those things with the tracking device, so forth. I mean, I have to take blame for doing that.... It was a voluntary act. But I knew in my mind I wasn't, I wasn't looking at it like I was violating anything. Looking back now, I see that....
Anyway, I'd just ask for mercy and maybe if you could just understand to some degree that I was desperately trying to reconcile our differences in our marriage. Looking back, obviously, it didn't work and wasn't the proper way to do it, that I am sorry for my actions.

Respondent also testified that at some point he gained closure regarding the dissolution of his marriage and that he has not communicated with or had any encounters with his ex-wife for several years, except for a memorial service for his son in May of this year, during which they were cordial with one another. This comports with Ms. Rabalais' testimony at the hearing before the Hearing Officer that she and respondent no longer communicate.

The Office of Special Counsel urged the Commission to recommend to the court that respondent be removed from office. Respondent opposed removal and requested that the Commission recommend a public censure. Although the Commission regarded respondent's misconduct as very serious, the Commission did not consider it to be the type of conduct for which a recommendation of removal is warranted.

In recommending discipline, the Commission looked to the factors set forth by this court in In re: Chaisson , 549 So.2d 259 (La. 1989), and concluded:

(a) and (b) Respondent's actions in stalking and harassing his ex-wife, coupled with his failure to abide by court-ordered protective orders, constitute serious misconduct. Respondent's acts of harassment, stalking, and violations of the law relative to protective orders occurred repeatedly over a substantial period of time, from September 2012 through February 2014, approximately eighteen months. Although respondent's actions within this timeframe plainly evidenced a pattern of very troubling conduct, the Commission did not find that such conduct was part of a larger pattern that extended to other times during respondent's life or judicial career. Rather, the Commission found that respondent's conduct was directly attributable to the emotional distress caused by the break-up of his marriage of thirty-plus years, his difficulty in accepting the dissolution of the marriage, and his desire for reconciliation. It appears that once he accepted the end of his marriage, his pattern of harassment and stalking of his ex-wife ended, with the last reported incident being in February of 2014, over three and a half years ago.

(c) and (d) Respondent's misconduct occurred outside of the courtroom and in his private life.

(e) and (f) Although coming at a somewhat late stage in the proceedings, respondent filed into the record significant written admissions on the second day of the hearing. As noted by the Hearing Officer, "the admissions show that JP Sachse has taken responsibility for some of his most egregious conduct." In his brief to the Commission, respondent also agreed with the Hearing Officer's conclusions of law regarding some of the violations of the Code of Judicial Conduct and Louisiana Constitution. Although respondent did not admit to all of the factual allegations or all the violations of the Code of Judicial Conduct and Louisiana Constitution as alleged in the Notice of Hearing, the Commission recognizes that respondent has a right to defend himself against the allegations against him.

Respondent appeared remorseful about his actions, apologized for them, and testified that he should have acted differently. Nonetheless, respondent did not appear to fully understand the seriousness of his misconduct, especially his violations of criminal law and court-ordered protective orders. Respondent appeared to overly rely on his distressed emotional state as an explanation (but not a justification) for his actions. Although the Commissioners recognized that divorce and marital issues can cause an individual to engage in conduct that he or she might not otherwise engage in, it did not appear that respondent fully appreciated that as a judicial officer, he is held to a higher standard than an average individual and that his violations of the law and court orders are especially damaging to the respect for, the integrity of, and the public's confidence in this state's judiciary.

(g) Respondent has served as justice of the peace since 1996. At the time of his unethical conduct, respondent was not a new justice of the peace and should have been more familiar with his ethical obligations pursuant to the Code of Judicial Conduct and the Louisiana Constitution, as they relate to his out-of-court conduct.

(h) Respondent has no reportable history of prior judicial misconduct.

(i) Respondent's actions have negatively impacted the integrity of and respect for the judiciary. Respondent, a long-serving judicial officer, admitted that he violated the criminal prohibitions against stalking and violation of protective orders. It is especially damaging to the judiciary when a member of the judiciary ignores the law and duly issued court orders. The public is expected to fully comply with the law or suffer serious consequences. Members of the judiciary are no exception; rather, they are held to a higher standard and expected to set the example. A failure to duly comply with the law and court orders by a member of the judiciary simply cannot be countenanced.

The Commission pointed to this Court's language in In re: Ellender , 04-2123, pp. 8-9 (La. 12/13/04), 889 So.2d 225, 231 : "It is widely understood that judges symbolize the law, and, accordingly, their actions reflect favorably or unfavorably on the judicial system. As a public official, a judge's behavior both on and off the bench must comply with the highest of standards delineated in the Canons." Accordingly, "[a] criminal act for which any citizen may be punished by imprisonment is much more serious when the conduct is that of a judge," and such conduct "is clearly prejudicial to the administration of justice and brings the judicial office into disrepute." In re: Whitaker , 463 So.2d 1291, 1303 (La. 1985) (suspending judge for one year without pay for, among other things, smoking marijuana on two occasions after becoming a judge and associating with prostitutes and users and sellers of illegal drugs); see also In re: Soileau , 502 So.2d 1083 (La. 1987) (suspending a judge for six months without pay for, among other things, committing a battery on a law enforcement official and disturbing the peace at a crawfish festival).

(j) Although respondent, in his personal desire to reunite with his former wife, seriously violated the Code of Judicial Conduct and the Louisiana Constitution, the evidence does not indicate that he exploited his position in doing so.

Based on these considerations, some of which the Commission regarded as aggravating and some as mitigating, the Commission recommended that respondent be suspended without pay for six months. The Commission also recommended that respondent be ordered to reimburse and pay to the Commission $3,040.02 in costs. In his brief to this Court, respondent accepted the recommendations of the Commission, and agreed to abide by any sanctions imposed by this Court.

DISCUSSION

Article V, § 25(C) of the 1974 Louisiana Constitution provides the substantive grounds for disciplinary action against a judge. The Code of Judicial Conduct adopted by this court under its supervisory authority supplements the constitution's substantive grounds for disciplinary action against a judge. In re Justice of the Peace Franklin , 07-1425, p. 14 (La. 11/27/07), 969 So.2d 591, 600. The Code is binding on all judges, including justices of the peace. In re Justice of the Peace Myrty Alfonso , 07-0120, p. 7 (La. 5/22/07), 957 So.2d 121, 122, citing In re: Wilkes , 403 So.2d 35, 40 (La.1981). "Violations of the Canons contained in the Code of Judicial Conduct can serve as a basis for the disciplinary action provided for by Article V, § 25(C) of the Constitution." Id. , citing In re: McInnis , 00-1026, p. 1 (La. 10/17/00), 769 So.2d 1186, 1188 n. 2. This Court has stated:

The Code of Judicial Conduct was enacted by this court pursuant to its constitutionally-granted supervisory authority over all lower courts. This constitutional grant of supervisory authority is plenary, unfettered by jurisdictional requirements, and exercisable at the complete discretion of the court. La. Const. art. V, § 5 (A); Unwired Telecom v. Parish of Calcasieu , 03-0732, p. 8 (La. 1/19/05), 903 So.2d 392, 400 (on reh'g ). As explained above, the Code requires all judges, including justices of the peace, to comply with its requirements. Additionally, in La. R.S. 42:1167, the legislature has recognized that all judges, as defined by the Code of Judicial Conduct, shall be governed exclusively
by that Code. This statute, which became effective April 1, 1980, acknowledges this court's authority to provide the exclusive means by which judges' conduct is governed. See In re: Ellender , 04-2123, p. 6 (La. 12/13/04), 889 So.2d 225, 230 ("The legislative statement in La. R.S. 42:1167 codifies our jurisprudence which provides that judges are governed exclusively by the Code, and the Code is not contrary to the Constitution's exclusive grant of authority to this Court in the realm of judicial misconduct.").
In re Justice of the Peace Larry Charles Freeman , 08-1820, p. 13-14 (La. 12/2/08), 995 So.2d 1197, 1206 (internal cites omitted).

Furthermore, "a justice of the peace is governed by the same constitutions and laws that govern all courts and judges of this state, and is bound to apply the law as written by the legislature and construed by the various courts." Alfonso , supra , citing Wilkes , 403 So.2d at 44. The charge against a judge must be proven by clear and convincing evidence before this court can impose discipline. In re Hunter , 02-1975, p. 4 (La. 8/19/02), 823 So.2d 325, 328.

Justice of the Peace Sachse was charged with violations of Canons 1 and 2A of the Code of Judicial Conduct. Canon 1, "A Judge Shall Uphold the Integrity and Independence of the Judiciary," provides:

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code are to be construed and applied to further that objective. As a necessary corollary, the judge must be protected in the exercise of judicial independence.

Canon 2A, under the title "A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All Activities, provides that "[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

Based upon our review of the record before us, we find there is clear and convincing evidence that respondent has violated the Code of Judicial Conduct as alleged herein. Respondent engaged in a repeated pattern of stalking and harassing his ex-wife, resulting in numerous violation(s) of court protective orders, including a 2013 "no contact" order. Although respondent was never convicted, he was arrested for these transgressions, and prosecution or conviction is not required to find judicial misconduct. As the Commission duly noted, it is troublesome and particularly damaging to the judiciary when a member of the judiciary ignores the law and duly issued court orders. Furthermore, notwithstanding the emotional turmoil of a divorce, his cumulative behavior over approximately 18 months is inexcusable and unbecoming of the judiciary. While we acknowledge respondent expressed remorse for his actions and he has had no further contact with his ex-wife since 2014, this Court must hold him accountable for his actions, which fell below the standard set forth in the Code of Judicial Conduct.

CONCLUSION

Upon review of the findings and recommendations of the Judiciary Commission, and considering the record filed herein, we find respondent has violated Canons 1 and 2A of the Code of Judicial Conduct, and hereby suspend respondent without pay for six months. Respondent must also pay to the Commission $3,040.02 in costs.

JOHNSON, C.J., concurs.

      On August 28, 2012, Ms. Rabalais filed a petition for divorce. The divorce was granted on July 22, 2013.

      The Petition for Protection from Abuse was ultimately dismissed for lack of proof.

      The evidence indicates that respondent purchased the GPS device on September 25, 2012. It was discovered by Ms. Rabalais on her vehicle on or about November 28, 2012.

      La. R.S. 14:40.2 provides in pertinent part as follows:
      Stalking is the intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking shall include but not be limited to the intentional and repeated uninvited presence of the perpetrator at another person's home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal, written, or behaviorally implied threats of death, bodily injury, sexual assault, kidnapping, or any other statutory criminal act to himself or any member of his family or any person with whom he is acquainted.

      Ms. Rabalais drove the vehicle to work and parked it in the parking lot, as was her normal practice. Unbeknownst to Ms. Rabalais, respondent came to the parking lot and took the vehicle. At the time, respondent was preparing to depart for a trip to Mexico, and he left the vehicle at a friend's house while he was out of the country, with the intent to prevent Ms. Rabalais from using the vehicle during his absence.

      However, respondent testified that he did not know the actual day of the week when Ms. Rabalais brought her clients to the church, or the frequency with which she did so.

      Respondent grabbed Ms. Rabalais by the shirt to prevent her from leaving the home, and he took Ms. Thornton's cell phone from her and threw it into a neighbor's yard. The charge of simple battery upon Ms. Rabalais was later amended to domestic abuse battery. On July 28, 2014, respondent was tried before Judge M. Douglas Hughes. At the conclusion of the State's case, the court granted a motion for acquittal on the simple robbery charge but denied the motion as to the domestic abuse battery charge. Following the trial, the court found respondent not guilty of domestic abuse battery.

      This Court agrees with the Hearing Officer and the Commission that respondent violated Canon 2A, despite the fact that he was never prosecuted or convicted of violating the TRO. This Court also notes, as did the Hearing Officer and the Commission, that the plain language of the Code of Judicial Conduct does not require the prosecution or conviction of a crime in order to find judicial misconduct. Specifically, Canon 2A imposes an affirmative duty upon judicial officers to "respect and comply with the law," which respondent failed to do. At a minimum, respondent's conduct violates Canon 1, since his harassing behavior fails to uphold "high standards of conduct" and "fails to promote public confidence in the integrity ... of the judiciary."

      As mentioned, no prosecution or conviction for the crime of stalking is required for the reasons discussed in note 8, supra .

      Again, no prosecution or conviction for the crime of stalking is required for the reasons discussed in note 8, supra .

      As discussed in n. 8, supra , the plain language of the Louisiana Code of Judicial Conduct does not require an actual conviction to find a violation of the same. See also In re Kuehnel , 49 N.Y.2d 465, 426 N.Y.S.2d 461, 403 N.E.2d 167 (1980) ; In re Young , 522 N.E.2d 386 (Ind. 1988) ; and In re Fowler , 593 So.2d 1043 (Fla. 1992).


text:
    U.L. COLEMAN COMPANY, LTD. v. Keitha Dickson GOSSLEE
    No. 2018-C-0239
    Supreme Court of Louisiana.
    April 16, 2018
    Crichton, J., would grant and assigns reasons.
   I would grant this writ, for the well-articulated reasons assigned by Judge Brown and Judge Bleich in their dissents in the court of appeal. Specifically, it is clear that U.L. Coleman and Keitha Dickson Gosslee had a complex and evolving-or devolving-professional relationship. The trial judge adroitly evaluated and analyzed the evidence, making credibility determinations of the principals of this matter, Coleman and Gosslee, and made detailed findings of fact and conclusions of law. In my view, there was abundant evidence to support the trial judge's conclusion in light of the testimony. I would therefore grant this writ and reinstate the trial court's judgment.


author: GENOVESE, J., recused.

text:
    IN RE: The PEROXISOME TRUST
    NO. 2018-CC-02S3
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.
   GENOVESE, J., recused.


text:
    STATE of Louisiana v. Jamie LYONS
    NO. 2018-KK-0510
    Supreme Court of Louisiana.
    April 5, 2018
    Denied.


text:
    STATE of Louisiana v. Woodrow KAREY, Jr.
    NO. 2018-KD-0533
    Supreme Court of Louisiana.
    April 5, 2018
    Denied.


text:
    STATE of Louisiana v. Lerone LEWIS
    NO. 2018-KK-0525
    Supreme Court of Louisiana.
    April 3, 2018
    Stay denied. Writ denied.


text:
    STATE EX REL. Samuel BARKER v. STATE of Louisiana
    NO. 2016-KK-2172
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.


text:
    STATE of Louisiana v. Octavia GARY
    NO. 2017-K-0940
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.


text:
    STATE of Louisiana v. Jerman NEVEAUX
    NO. 2018-KK-0275
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.


author: WEIMER, J., would grant.

text:
    Charles M. CANDELLA v. PROGRESSIVE CASUALTY INSURANCE CO., et al.
    NO. 2018-CC-0286
    Supreme Court of Louisiana.
    Supreme Court of Louisiana April 6, 2018
    Denied.
   WEIMER, J., would grant.


text:
    SUCCESSION OF Bernadette Gaines GILBERT
    Succession of Bernadette Gaines Gilbert
    NO. 2017-C-2181
    Supreme Court of Louisiana.
    April 6, 2018
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Patrick Lee PIERCE
    NO. 2017-KO-0661
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Rockey A. BURNHAM
    NO. 2017-KO-0664
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Jerry J. SUIRE, et al. v. OLEUM OPERATING COMPANY, et al.
    NO. 2018-C-0271
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.
    GENOVESE,J., recused.


text:
    STATE of Louisiana v. Anthony D. ROBERTSON
    NO. 2017-KO-0937
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.


text:
    STATE of Louisiana v. Jerman NEVEAUX
    NO. 2018-KK-0291
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.


text:
    BLOCK CONSTRUCTION, LLC v. RECREATION & PARK COMMISSION FOR the PARISH OF EAST BATON ROUGE
    NO. 2018-C-0301
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.
   HUGHES, J., would grant.


author: CLARK, J., would grant.

text:
    STATE of Louisiana v. Anthony REDDICK
    NO. 2018-KK-0302
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.
   CLARK, J., would grant.

CRICHTON, J., would grant.


text:
    Terry DAVIS v. LOUISIANA DELTA COMMUNITY COLLEGE FOUNDATION, the Foundation for Louisiana's Community and Technical College, Greg Groves, Jay Russell, Sheriff, Ouachita Parish, Louisiana, Chris Jerkins, Ricky Bacle, Rick Shaw, Lee Harrell, Sheriff, Richland Parish, Louisiana, B.J. Martien, City of West Monroe, Matt Downhour and Glen Springfield
    NO. 2018-CC-0305
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.


text:
    STATE of Louisiana IN the INTEREST OF S.H., et al.
    NO. 2018-CJ-0366
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE EX REL. Jimmy ADAMS a/k/a Jimmmie Adams v. STATE of Louisiana
    NO. 2016-KH-2161
    Supreme Court of Louisiana.
    April 6, 2018
    Denied. Moot.


text:
    Moses BLACK v. GONZALES MUNICIPAL POLICE DEPARTMENT and Gonzales Municipal Fire and Police Civil Service Board
    NO. 2018-CC-C485
    Supreme Court of Louisiana.
    April 6, 2018
    Denied.


author: CHUTZ, J.

text:
    Sharon DUPRE and Wilson Dupre, Jr. v. TRANSCONTINENTAL GAS PIPE LINE, LLC, Furmanite America, Inc., E S & H, Inc., and Danos and Curole Marine Contractors, LLC
    2017 CA 0152
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: DECEMBER 21, 2017
    Howard L. Marcello, Thibodaux, Louisiana, Counsel for Plaintiffs-Appellees, Sharon Dupre and Wilson Dupre, Jr.
    Jennifer E. Michel, Tabitha Durbin, Lafayette, Louisiana, Counsel for Defendant-Appellee, STARR Indemnity & Liability Company
    Charles A. Cerise, Jr., Edwin Christian Laizer, Gerard J. Gaudet, James T. Rogers, III, New Orleans, Louisiana, Counsel for Defendant-Appellee, E S & H, Inc.
    Michael H. Bagot, Jr., G. Beauregard Gelpi, New Orleans, Louisiana, Counsel for Defendant-Appellee, Danos & Curole Marine Contractors LLC
    Keith J. Bergeron, Raymond C. Lewis, Brian Seth Schaps, New Orleans, Louisiana, Counsel for Defendant-Appellee, Furmanite America, Inc.
    Edward J. Koehl, Jr., William P. Wynne, Hansford P. Wogan, New Orleans, Louisiana, Counsel for Third Party, Defendant-Appellee, The Gray Insurance Company
    David K. Nelson, John F. Jakuback, John C. Funderburk, Melissa B. Caruso, Mallory McKnight Fuller, Baton Rouge, Louisiana, Bradley J. Schlotterer, Sean T. McLaughlin, McClain Schonekas, New Orleans, Louisiana, Counsel for Third Party, Plaintiff-Appellant, Transcontinental Gas Pipe Line, Company, LLC
    BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
   CHUTZ, J.

Third-party plaintiff, Transcontinental Gas Pipe Line Company, LLC (Transco), appeals the trial court's judgment, dismissing without prejudice its third-party demand for declaratory relief against third-party defendant, The Gray Insurance Company (Gray). We maintain the appeal and reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On October 8, 2015, an explosion occurred at the Transco facility located in Gibson, Louisiana. As a result, four individuals died, including two employees of Danos and Curole Marine Contractors, LLC (Danos) and two employees of Furmanite America, Inc. (Furmanite). At the time of the explosion, the Danos employees were performing work at the Transco facility under a request-for-service order issued by Transco to Danos pursuant to the General Service Agreement (GSA) into which they had entered. The Furmanite employees were performing work as a subcontractor to Danos under a request-for-service order issued by Danos pursuant to a Master Service Contract (MSC) into which it had entered with Furmanite. Several lawsuits, including this one by Sharon Dupre and Wilson Dupre, Jr., were subsequently filed against Transco, Danos, and Furmanite, among others, seeking damages as a result of the explosion.

In addition to answering the Dupres' lawsuit, Transco filed a third-party demand against Gray, seeking a declaration that Gray is obligated to defend and indemnify it under the contractual provisions of the insurance issued to Danos for which Transco was a named "additional insured" pursuant to the GSA. Gray filed various peremptory exceptions as well as a dilatory exception objecting on the basis of prematurity. After a hearing, the trial court issued a judgment dismissing Transco's claims without prejudice. This appeal by Transco followed.

DISCUSSION

The following facts are undisputed. After execution of the GSA, Danos hired Furmanite as a subcontractor and they entered into the MSC. Both the GSA and the MSC required that Transco be endorsed as an additional insured under insurance policies obtained by Danos and Furmanite respectively. Under the GSA, Danos obtained insurance from Gray and Transco was named as an additional insured. Under the MSC, Furnamite obtained insurance with ACE American Insurance Company and Commerce and Industry Insurance Company, naming Transco, Danos, and Gray as additional insureds. The policies obtained under the GSA and MSC were in effect on the date of the explosion.

Gray avers that under the provisions of the GSA entered into between Transco and Danos, and those of the MSC subsequently executed between Danos and Furmanite, the Furmanite insurers are the primary insurers available to Transco against the claims of the Dupres (and the others who have instituted litigation against Transco as a result of the October 8, 2015 explosion). Thus, Gray avers that Transco is required to seek a defense and utilize the proceeds available from Furmanite's insurers before Gray is obligated to perform under the insurance issued to Danos with Transco as a named additional insured. As such, Gray maintains that the trial court correctly concluded Transco's claims for declaratory relief were premature and properly dismissed without prejudice.

La. C.C.P. art. 926A(1) provides for the dilatory exception raising the objection of prematurity. Such an objection is intended to retard the progress of the action, rather than to defeat it. La. C.C.P. art. 923. An action is premature if it is brought before the right to enforce the claim sued on has accrued. See La. C.C.P. art. 423. The objection of prematurity raises the issue of whether the judicial right of action has yet come into existence because some prerequisite condition has not been fulfilled. Prematurity is determined by the facts existing at the time suit is filed. It's Golden, LLC v. Watercolors Unit 6, LLC , 2016-1362 (La. App. 1st Cir. 6/2/17), 223 So.3d 545, 547.

Without asserting that either the GSA or the MSC is ambiguous, both Transco and Gray point to contractual provisions to support their contentions regarding Transco's intent. Thus, resolution of the issues presented for our review depends on a determination of the nature and effect of the agreements executed by the parties, and the proper interpretation of a contract is a question of law subject to de novo review on appeal. Montz v. Theard , 2001-0768 (La. App. 1st Cir. 2/27/02), 818 So.2d 181, 185.

According to the salient provisions of the GSA between Transco and Danos:

[Danos] shall maintain insurance as indicated in Exhibit C.... [Danos] shall be fully responsible to [Transco] for any deficiencies in [Danos's] and [Danos's subcontractor's] insurance....

Exhibit C of the GSA states the following:

[Danos] will carry or cause to be carried and maintained in force ... insurance described below.... All policies providing the required insurance ... shall be endorsed to include [Transco and its agents] as additional insured and these policies will be primary to any other insurance available to [Transco and its agents]....
If [Danos] hires a subcontractor to perform any portion of the Work, [Danos] warrants that the subcontractor will obtain insurance meeting
the insurance requirements of this Agreement and applicable to the subcontracted work, with the types and limits required by [Transco].... [Danos] shall defend (at [Transco's] options), indemnify, and hold harmless [Transco and its agents] from or against any Claims asserted or arising as a result of [any] deficiency [in insurance].

Lastly, the GSA expressly states at paragraph 13:

[Danos] may not assign or subcontract this Agreement ... in whole or in part without [Transco's] prior written consent.... No assignment or subcontract shall relieve [Danos] of its obligations under this Agreement.

Thus, according to Transco, Danos was required to obtain insurance and, under the terms of the GSA, that insurance was contractually deemed primary to any other insurance that is available. Moreover, Transco asserts that Danos could not unilaterally alter these terms of the GSA when it contracted the MSC with Furmanite under the language of paragraph 13 of the GSA. We agree.

Gray's entire contention that it is an excess insurer to the insurance provided by Furmanite is premised on the conclusion that "Transco clearly wanted to add layers of insurance protection between itself and the work being done." Gray has not pointed to any language in the GSA which mandates that Danos "add layers of insurance protection." Instead, our review shows that the GSA states that if Danos hired a subcontractor, as it did with Furmanite, "[Danos] warrants that the subcontractor will obtain insurance meeting the insurance requirements of this Agreement." (Emphasis added.) This provision is merely a risk-shifting stipulation, which is evinced by the subsequent language, i.e., that "[Danos] shall defend (at [Transco's] options), indemnify, and hold harmless [Transco and its agents] from or against any Claims asserted or arising as a result of [any] deficiency [in insurance]." In other words, the failure of Danos to ensure that the requisite insurance was obtained by its subcontractors would result in an assumption of liability by Danos for the insurance deficiency. Here, there is no deficiency in Furmanite's fulfillment of its insurance obligation to Danos and, hence, there is no claim by Transco for indemnity against Danos as a result of an insurance deficiency by Furmanite. More importantly, Transco has shown by the salient provisions of the GSA that it was Transco's intent that Danos would procure insurance for which Transco would be a named additional insured.

In reaching its conclusion that Transco's claim for declaratory relief against Gray was premature because the coverage provided by Furmanite's insurers primed Gray's, the trial court relied on provisions in the MSC between Danos and Furmanite, which stated:

Coverage under all insurance that is required to be carried by [Furmanite] shall be primary insurance and exclusive of any other existing valid and [collectible] Insurance coverage available to any member of [Danos, the Insurers of Danos, and Transco].

Because the GSA stated, "No ... subcontract shall relieve [Danos] of its obligations under this Agreement," and under the provisions of the GSA, "[Danos] will carry ... insurance" which "shall be endorsed to include [Transco and its agents] as additional insured and these policies will be primary to any other insurance available to [Transco and its agents]," the terms of the MSC stating that the Furmanite insurance "shall be primary insurance and exclusive of any other existing valid and [collectible] Insurance coverage," including that available to Transco, simply were inapplicable to Transco, who was not a party to the MSC. See La. C.C. art. 1983 (contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law). Thus, while the provisions of the MSC may have shown the intent of Danos and Furmanite to procure insurance in which Transco was named an additional insured, that contract did not provide any insight into Transco's intent.

The trial court's reliance on Ogea v. Loffland Bros. Co. , 622 F.2d 186 (5th Cir. 1980), and subsequent cases that rely on its holding, to conclude that the Furmanite insurance primed Gray's is misplaced. It is true, as Gray points out, that the Ogea court determined that in a contract in which indemnity and insurance obligations are owed, to harmonize the provisions, fulfillment of the insurance obligations must precede the performance of the indemnity obligations. Here, however, Transco does not seek to enforce its indemnity provisions against Danos. Ogea , 622 F.2d at 190. Transco merely asks that Gray perform its obligations under the insurance it issued to Danos for which it is undisputed that Transco is a named additional insured.

Because the provisions of the MSC are inapplicable and, under the plain language of the GSA, Danos was required to, and did, obtain insurance from Gray in which Transco was a named additional insured, Gray's insurance was "primary to any other insurance available to [Transco and its agents]." Therefore, Gray's insurance is not excess to that of the Furmanite insurers, and Transco's third-party demand seeking a declaration that Gray is obligated to defend and indemnify in accordance with the insurance Gray issued to Danos for which Transco is a named additional insured is not premature.

DECREE

Because the trial court's judgment dismissing Transco's third-party demand for declaratory relief is a final judgment, the appeal is maintained. That portion of the trial court's judgment dismissing Transco's demand without prejudice is reversed. The matter is remanded for further proceedings. Appeal costs are assessed against The Gray Insurance Company.

APPEAL MAINTAINED. REVERSED AND REMANDED.

      Because the appealed judgment dismisses all of Transco's claims against Gray, it is a final judgment under La. C.C.P. art. 1915A(1). Therefore, the appeal is maintained.

      Gray filed peremptory exceptions raising objections of no right of action, no cause of action, and nonjoinder of parties required for a just adjudication. Gray averred that Transco had no right of action and no cause of action against it because as an excess insurer, it was not liable for any claims against Transco until after the Furmanite insurers' policies were applied and expended. Gray also contended that since it was an excess insurer, a just adjudication of Transco's claims for declaratory relief required joinder of Furmanite's insurers as parties under La. C.C.P. art. 641. Thus, the underlying bases for all of these peremptory exceptions are that Transco's right to enforce its claims for declaratory relief against Gray is premature because Gray is an excess insurer. As such, our appellate review focuses on the propriety of the trial court's action of sustaining the objection of prematurity as well as its dismissal, without prejudice, of Transco's declaratory action against Gray.

      Although Transco posits that the result is the same under either the laws of Louisiana or Texas, we note that because the GSA expressly states, "The laws of the State of Texas ... shall govern this Agreement," under Texas law the interpretation of an unambiguous contract is a question of law for the court. Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 7 (Tex. 2014).

      See also Mendivil v. Zanios Foods, Inc., 357 S.W.3d 827, 830-31 (Tex. App. 2012) (the elements required for the formation of a valid and binding contract include: (1) an offer; (2) acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party's consent to the term; and (5) execution and delivery of the contract with the intent that it be mutual and binding).

      We note that neither Transco nor Gray admitted any insurance policies into evidence. Thus, based on the allegations of Transco's petition, we cannot determine what, if any, relationship exists between Gray and the Furmanite insurers. As pleaded, see It's Golden, LLC , 223 So.3d at 547 (if no evidence is presented at trial, the court must render its decision based on the facts alleged in the petition with all allegations therein being accepted as true), the Furmanite insurers are not parties required for a just adjudication under La. C.C.P. art. 641.

      Transco also filed a cross-claim against Danos, seeking declaratory relief, averring entitlement to a declaration that the GSA obligated Danos to defend and indemnify Transco from the lawsuits filed by the Dupres and others. The trial court's dismissal without prejudice of the cross-claim by Transco against Danos was not appealed.


author: CRAIN, J.

text:
    Laurita Larue GUILLORY v. THE CHIMES and/or Barco Enterprises, Inc.
    NO. 2017 CA 0479
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017
    Lindsey J. Leavoy, Neil H. Mixon, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant, Laurita Larue Guillory
    Brad J. Brumfield, Baton Rouge, Louisiana, Attorney for Defendant/Appellee, Barco Enterprises, Inc. d/b/a The Chimes Restaurant
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

The plaintiff appeals a summary judgment dismissing her slip-and-fall claim. We affirm.

FACTS AND PROCEDURAL HISTORY

Laurita L. Guillory was a customer in a restaurant when she allegedly slipped and fell while returning to her table from the restroom. She filed suit against the owner of the restaurant, Barco Enterprises, Inc. d/b/a The Chimes Restaurant, alleging she slipped on a "foreign, wet, and slippery substance" on the floor by the serving area, sometimes referred to as the "waitstation," where employees of Barco pick up food and drinks to take to customers' tables. According to the petition, the slippery substance "was spilled on the floor from the serving trays carried by defendant [Barco's] servers."

Barco filed a motion for summary judgment seeking a dismissal of the claim, asserting Guillory could not meet her burden of proof under Louisiana Revised Statute 9:2800.6, the Merchant Liability Statute. In support of the motion, Barco submitted several exhibits, including an affidavit of the manager on duty at the time of the accident, Michelle Colby, who attested she investigated the incident and found nothing visible on the floor to cause the fall. Barco also introduced excerpts from Guillory's deposition, wherein she testified she never saw any food or drink fall on the floor in the serving area. Guillory also confirmed she did not encounter any slippery substance on the floor on her way to the restroom. When returning to her table, she did not see anything on the floor either before or after she fell. After she fell, she did not notice anything wet on any part of her body. When asked why she fell, Guillory offered the following:

It had to have been because-it had to have been something slippery from the liquor or the food because that's where everything comes from right there .... They must have spilled something and it was slippery and wet there. I don't know.

In opposition to the motion, Guillory cited this testimony as proof that a slippery substance was on the floor. She also submitted an affidavit from her daughter, Carol G. Rowe, who attested she walked to the same restroom shortly after the accident and noticed a "wet floor" sign in the area by the waitstation where her mother fell. That fact, according to Guillory, is also proof that a slippery substance was on the floor. Guillory also introduced an answer to an interrogatory, which tracks the language of the petition and states Guillory slipped and fell "in, on, and/or because of a foreign, wet, and/or slippery substance on the floor near the 'waitstation.' " The answer further provides Guillory "believes the substance was from the food and/or drinks servers served to customers."

The trial court granted the motion, finding "no proof that there was an unreasonably dangerous condition either created by the restaurant or having been present for such a period of time that the restaurant should've had constructive notice of its existence." A judgment was signed that granted the motion for summary judgment and dismissed Guillory's claims with prejudice. Guillory appeals.

DISCUSSION

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La. App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

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

Circumstantial evidence may establish the existence of a genuine issue of material fact to defeat summary judgment; however, the response of the adverse party must set forth specific facts showing a genuine issue of fact exists. Ledet v. Robinson Helicopter Company, 15-1218 (La. App. 1 Cir. 4/15/16), 195 So.3d 89, 92, writ denied, 16-00937 (La. 9/6/16), 204 So.3d 1002. Although factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. See Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050 ; Freeman v. Fon's Pest Management, Inc., 16-0208 (La. App. 1 Cir. 10/2/17), 232 So.3d 611, ---- (2017 WL 4369175).

The substantive law applicable to Guillory's claim is set forth in Section 9:2800.6, which imposes a duty on merchants to exercise reasonable care to keep its aisles, passageways, and floors in a reasonably safe condition and to keep its establishment free of hazardous conditions. See La. R.S. 9:2800.6A; Thompson v.Winn-Dixie Montgomery, Inc., 15-0477 (La. 10/14/15), 181 So.3d 656, 662. In addition to all other elements of her cause of action, a plaintiff seeking recovery under Section 9:2800.6 must prove (1) the condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and (3) the merchant failed to exercise reasonable care. See La. R.S. 9:2800.6B.

We begin our analysis with the second element of this burden of proof, which requires evidence the merchant either created the condition or had notice of it. Guillory asserts Barco's employees created the condition. To prove a merchant created a condition that caused an accident, there must be proof the merchant, and not a store patron, is directly responsible for the hazardous condition. Held v. Home Depot, U.S.A., 16-1252, 2017 WL 2399018 at p. 3, (La. App. 1 Cir. 6/2/17) ; see also Ross v. Schwegmann Giant Super Markets, Inc., 98-1036 (La. App. 1 Cir. 5/14/99), 734 So.2d 910, 913, writ denied, 99-1741 (La. 10/1/99), 748 So.2d 444.

For proof Barco created the condition, Guillory relies solely on the fact she fell by the waitstation. The proximity of the waitstation to her fall, according to Guillory, provides circumstantial evidence that a Barco employee "must have spilled something." For support, she cites Davis v. Cheema, Inc., 14-1316 (La. App. 4 Cir. 5/22/15), 171 So.3d 984, 985, wherein a customer at a convenience store slipped and fell on a "kitty-litter-like material" spread over an oil slick near the store's gas pumps. The plaintiff's evidence indicated the material was used by gas stations to soak up fuel spills. Based upon those facts, the court of appeal found "a reasonable inference that it was the merchant, and not a customer or stranger, who put the substance on its parking lot surface to remedy an oil slick." Davis, 171 So.3d at 993. That inference created a genuine issue of material fact that precluded summary judgment in favor of the defendant. Davis , 171 So.3d at 993.

Here, in contrast to Davis , the plaintiff presented no evidence the alleged substance on the floor was something used solely or distinctively by the defendant and its employees. In fact, Guillory could not even identify the substance that caused her fall. It is undisputed the area where Guillory fell is not used exclusively by Barco employees. Customers traverse the area, as evidenced by the fact Guillory and her daughter walked across the area going to and from the restroom. Guillory's deposition testimony also suggests a dining table was near the area. When asked whether anyone saw the accident, Guillory said, "[N]o one else said anything about my [fall]-not even the family that was there at that table. They didn't pay any attention." Unlike the material in Davis , there is no evidence the substance that allegedly caused Guillory to fall is of a nature that reasonably excludes customers, vendors, or any other individual on the premises as the source of the unreasonably dangerous condition.

A more analogous case is Held , where a customer at a Home Depot store tripped and fell over a hand truck, also known as a "dolly," protruding into the aisle. See Held , 2017 WL 2399018 at 1. In opposition to Home Depot's motion for summary judgment, the plaintiff presented evidence establishing the hand trucks are stored on the electrical aisle, where the plaintiff fell, and are used by Home Depot employees to transport rolls of wire shelved in that area to a nearby machine that cuts the wire. Only Home Depot employees are supposed to use the hand trucks, and a representative of the store testified he had never seen a customer use one. See Held , 2017 WL 2399018 at p. 3. At the time of the accident, two hand trucks were on the aisle, one properly stored with the forks under a shelf, while the other, which caused the accident, was upright in the aisle with its forks protruding into the walkway. See Held , 2017 WL 2399018 at p. 3. The plaintiff argued the court should infer from this evidence that a Home Depot employee created the unreasonable risk of harm. This court rejected that argument and affirmed the summary judgment, explaining:

After conducting a de novo review of the evidence, and construing the evidence in Mrs. Held's favor, we conclude Home Depot showed that there was an absence of support for elements essential to Mrs. Held's claim. First, we agree with the trial court that Mrs. Held did not produce evidence to establish that Home Depot created a condition presenting an unreasonable risk of harm. Accepting Mrs. Held's allegation that the wire hand truck was mispositioned in Aisle 7, and not positioned with the forks under the shelf, we cannot reasonably infer that a Home Depot employee was directly responsible for a hazardous condition. There is no evidence as to how the wire hand truck came to be mispositioned. The fact that two wire hand trucks were on Aisle 7 at the time of the accident is not proof that a Home Depot employee improperly positioned one of them. The fact that only a Home Depot employee is supposed to use the wire hand trucks is not sufficient proof that a Home Depot employee was the only person who could have moved the wire hand truck before the accident .... Mrs. Held's argument is based on speculation, rather than on fact, and is not sufficient to defeat summary judgment.

Held , 2017 WL 2399018 at p. 4 (citations omitted).

Guillory's claim is likewise based on speculation rather than on fact. If a substance was on the floor, the mere fact employees of the defendant handle food and drinks in that area, which is also used by customers, does not mean an employee created the condition, particularly where there is no evidence identifying the substance. We are not permitted to speculate about how the condition was created. Guillory was obligated to come forward with evidence; however, the record is devoid of proof establishing the nature of the substance, if any, on the floor; how it came to be on the floor; or how long it was on the floor prior to the accident. Summary judgment in favor of Barco is thus appropriate. See Held, 2017 WL 2399018 at p. 4 ; Cyprian v. State Farm Fire and Casualty Company, 16-0717, 2017 WL 658246 at p. 10, (La. App. 1 Cir. 2/17/17) (affirming summary judgment where plaintiff presented no evidence defendant's employees were directly responsible for liquid being on the floor or how long the liquid was on the floor prior to accident); Pouncy v. Winn-Dixie Louisiana, Inc., 15-189 (La. App. 5 Cir. 10/28/15), 178 So.3d 603, 607 (affirming summary judgment where plaintiff did not see any substance on the ground, and, if substance was on the ground, she had no knowledge how it got there, how long it had been there, or whether any of the defendant's employees knew it was on the ground).

CONCLUSION

The summary judgment in favor of Barco Enterprises, Inc. d/b/a The Chimes Restaurant, dismissing the plaintiff's claims with prejudice, is affirmed. All costs of this appeal are assessed to Laurita L. Guillory.

AFFIRMED.

Guidry, J. concurs

Pettigrew, J. concurs with results and assigns reasons

PETTIGREW, J., CONCURS WITH THE RESULTS ONLY.

The majority relies on Held v. Home Depot, U.S.A., 16-1252, 2017 WL 2399018, to support their affirmance of the trial court's dismissal of plaintiff's claim. I dissented in Held and I am still of the opinion that Held was wrongly decided. I find the facts of this case are distinguishable from Held , therefore I concur with the results reached by the majority.

      After the record was lodged on appeal, this court, ex proprio motu, issued a rule to show cause why the appeal should not be dismissed, because the original judgment signed by the trial court on December 7, 2016, failed to specifically identify the party against whom it was rendered. The record was supplemented with a judgment signed on May 1, 2017, specifically dismissing Guillory's claims. After reviewing the May 1, 2017 judgment, we maintain the appeal.

      Because we base our holding on an absence of evidence to meet the second element of Guillory's burden of proof, we need not consider whether the evidence, including the "wet floor" sign, created an issue of fact as to the existence of a hazardous condition.