author: GUIDRY, J., would grant.

text:
    The LATHAN COMPANY, INC. v. STATE of Louisiana, DEPARTMENT OF EDUCATION, Recovery School District & John White in his official capacity as the State of Louisiana Superintendent of Education
    Guarantee Company of North America v. State of Louisiana, Department of Education, Recovery School District
    NO. 2018-C-0026
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   GUIDRY, J., would grant.

GENOVESE, J., would grant.


source: Caselaw Access Project

license: Public Domain

text:
    Michael J. LEGER, II v. Danielle Gotreaux LEGER
    NO. 2018-CJ-0039
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    STATE of Louisiana, THROUGH ORLEANS PARISH CRIMINAL DISTRICT COURT, Clerk of Court, Arthur Morrell v. The CITY OF NEW ORLEANS THROUGH its Mayor, Mitchell J. LANDRIEU
    NO. 2018-C-0116
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


author: WEIMER, J., would grant.

text:
    Linda M. SNAVELY, et al. v. ACE PAIN MANAGEMENT, LLC, et al.
    NO. 2018-OC-0097
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   WEIMER, J., would grant.


text:
    STATE of Louisiana v. Courtney RANDOL
    NO. 2018-KK-0133
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    STATE of Louisiana v. Percy CAGE
    NO. 2017-KP-0004
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


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

text:
    Flora änd Richard TURNER v. Dr. Robert RABALAIS and ABC Insurance Company
    NO. 2018-C-0123
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    Alan KATE, MD v. Ronald A. KARP and Law Office of Karp, Wigodsky, Norwind & Gold, P.A.
    NO. 2018-C-0136
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Lamondre Markes TUCKER
    State of Louisiana v. Alicia Ann Tucker
    NO. 2015-K-1517 VS
    Supreme Court of Louisiana.
    March 9, 2018
    Not considered. Not timely filed. See La.S.Ct. Rule X, § 5.
   CRICHTON, J., recused.


text:
    STATE EX REL. Kiyon JEFFERSON v. STATE of Louisiana
    NO. 2017-KH-2124
    Supreme Court of Louisiana.
    March 9, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review.


author: KYZAR, Judge.

text:
    Carey DORSEY v. PROTEMP STAFFING SOLUTIONS, INC.
    WCA 2017-793
    Court of Appeal of Louisiana, Third Circuit.
    January 31, 2018
    Stacy Christopher Auzenne, Auzenne Law Firm, 3600 Jackson Street, # 121, Post Office Box 11817, Alexandria, Louisiana 71315-1817, (318) 880-0087, COUNSEL FOR DEFENDANT/APPELLEE: ProTemp Staffing Solutions, Inc.
    Charles William Farr, Attorney at Law, 1966 North Highway 190, Suite B, Covington, Louisiana 70433, (985) 626-3812, COUNSEL FOR DEFENDANT/APPELLEE: Boise Cascade Company
    Carey Dwayne Dorsey, Post Office Box 562, Oberlin, Louisiana 70655, (337) 977-1244, APPELLANT: IN PROPER PERSON
    Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.
   KYZAR, Judge.

Defendants-Appellees, ProTemp Staffing Solutions, Inc. (ProTemp Staffing), and Boise Cascade Company (Boise Cascade), moved to dismiss this appeal. This court issued a limited remand of this appeal in order for the Office of Workers' Compensation (OWC) court to conduct a contradictory hearing and enter a ruling as to whether the Plaintiff timely fax-filed his motion for new trial. We now enter judgment denying the motions to dismiss the appeal.

This case involves a workers' compensation action which was filed by Plaintiff-Appellant, Carey Dorsey. On April 13, 2017, the OWC judge signed the judgment appealed, and notice of this judgment was mailed on the same day.

The record originally filed in this court reflected that Plaintiff filed his motion for new trial on April 26, 2017, which would have been untimely. The delay for filing a timely motion for new trial in this case ended on April 25, 2017. Thus, the Defendants filed their respective motions to dismiss the appeal as untimely filed.

Plaintiff filed a response in this court to the motions to dismiss the appeal. In Plaintiff's response, he asserted that he had fax-filed his motion for new trial in the OWC court on April 24, 2017.

Since this court is a court of record and cannot take evidence, this court entered the above-referenced limited remand. The OWC court has now conducted its hearing, taken evidence, and entered judgment finding that the Plaintiff did timely fax-file his motion for new trial on April 24, 2017, and that he also timely filed the original document with an appropriate filing fee within the time required by La.R.S. 13:850. The record in this appeal has been supplemented with the transcript of this hearing and with the exhibits filed into the record during that hearing.

Having reviewed the transcript, the trial court's ruling, and the exhibits entered into the record during this hearing, we find that the motions to dismiss filed by the Defendants must be denied. The documents support the OWC judge's decision that the Plaintiff timely fax-filed his motion for new trial on April 24, 2017, and that he timely followed up the fax-filing with the necessary filing of the original documents and an appropriate filing fee. Accordingly, we now deny the motions to dismiss the appeal.

MOTIONS TO DISMISS APPEAL DENIED.


author: AMY, Judge.

text:
    Amy DUPLECHIN v. ST. LANDRY PARISH SCHOOL BOARD, et al.
    17-748
    Court of Appeal of Louisiana, Third Circuit.
    February 7, 2018
    Richard E. Smith, The Law Office of Richard E. Smith, APLC, 1022 LaSavanne Drive, Breaux Bridge, LA 70517, Lafayette, LA 70501, (337) 247-4400, COUNSEL FOR PLAINTIFF/APPELLANT: Amy Duplechin
    Courtney T. Joiner, Hammonds, Sills, Adkins & Guice, LLP, 2431 S. Acadian Thruway, # 600, Baton Rouge, LA 70808, (225) 923-3462, COUNSEL FOR DEFENDANT/APPELLEE: St. Landry Parish School Board
    Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.
   AMY, Judge.

The claimant school teacher reported a worsening of her underlying respiratory condition after alleged exposure to mold in her middle school classroom. The employer denied her claim. After the claimant filed a disputed claim form and the parties submitted the matter on briefs and exhibits, the workers' compensation judge denied benefits upon a finding that the claimant failed to sustain her burden of proof as to causation. The claimant appeals, questioning the denial of benefits and seeking an award of benefits, penalties and attorney fees. For the following reasons, we affirm.

Factual and Procedural Background

The record in this workers' compensation matter indicates that the claimant, Amy Duplechin, began employment as a teacher with the St. Landry Parish School Board in 2000. During her employment, Ms. Duplechin suffered from respiratory symptoms which resulted in periodic absences from her work. These absences included a month-long period of extended sick leave in 2001, a 2005 semester-long medical sabbatical, and another semester-long medical sabbatical in 2011. In the physician's statement accompanying this latter sabbatical, Dr. Jose Santiago, indicated a February 9, 2011 diagnosis of sarcoidosis. The School Board subsequently granted the claimant an extended sick leave from January 14, 2013, through February 25, 2013. Dr. Santiago again noted sarcoidosis as the claimant's diagnosis. By February 28, 2013, however, Dr. Santiago indicated that the claimant was "ready to return" to "her full duties[.]"

The claimant alleges that the present matter arose when she returned to prepare her classroom for the fall 2013 semester on July 31, 2013. She explained in her deposition that, upon moving a shelf in the classroom, she discovered black mold on the back of the shelf and a type of "mushroom growth all along the side of [the] air conditioner unit." Notes submitted into evidence by the School Board indicate that both the claimant and custodial staff cleaned the visible condition. The notations further reveal that the claimant was moved to a different classroom and was provided with an air filtration device. By the end of August 2013 however, the air filtration device was removed.

The claimant explained in the deposition entered into evidence that she last worked on October 1, 2013 "[b]ecause of [her] sarcoidosis and the effects that it has on [her] body." Additionally, in the claim form instituting this matter, she alleged that she "discovered the mold in the classroom and as a result of working in the mold infested classroom has developed an aggravation of her condition of lung sarcoidosis." By the proceeding, the claimant suggested that the School Board "failed to timely pay indemnity benefits and failed to timely authorize/pay medical benefits." In turn, she sought payment of penalties and attorney fees due to a failure to reasonably controvert her claim.

The parties submitted the matter to the workers' compensation judge on briefs and exhibits. After consideration, the workers' compensation judge determined "that the law and evidence favors the defendant for the reasons assigned in open court."

The claimant appeals, asserting that:

[1.] The Trial Court committed manifest error and was clearly wrong in finding that AMY DUPLECHIN did not prove a causal connection between her current physical condition and exposure to mold.
[2.] The Trial Court committed manifest error and was clearly wrong in finding that AMY DUPLECHIN is not entitled to indemnity or medical benefits.
[3.] The Trial Court committed manifest error and was clearly wrong in finding that AMY DUPLECHIN is not entitled to indemnity or medical benefits.[ ]
[4.] The Trial Court committed manifest error and was clearly wrong in finding that AMY DUPLECHIN is not entitled to ... penalties or attorney's fees.

Discussion

With regard to the type of claim for occupational disease advanced in this case, La.R.S. 23:1031.1 provides that:

A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

Noting that the above-provision includes broad and expansive wording in its definition of a compensable occupational disease, the supreme court has explained that, by definition, "an occupational disease is one in which there is a demonstrated causal link between the particular disease or illness and the occupation." Arrant v. Graphic Packaging Int'l, Inc. , 13-2878, p. 21 (La. 5/5/15), 169 So.3d 296, 309. Notwithstanding any arguments regarding a link between the disease and the occupation that could exist in this case, the issue of causation of the claimant's alleged disability was the primary focus of the workers' compensation ruling.

Causation

By her first two assignments of error, the claimant globally addresses certain factual findings expressed in the workers' compensation judge's oral reasons for ruling. In particular, the claimant challenges the workers' compensation judge's rejection of her contention that her pre-existing condition of sarcoidosis was exacerbated by her exposure to mold in the classroom which, in turn, caused the resulting disability. She suggests that the factual determination was manifestly erroneous, pointing to medical records from Dr. Santiago in the preceding months that purportedly reveal no significant complaints. She further suggests that her contemporaneous reporting to him of an increase in complaints-as she asserts were demonstrated in records from that office beginning on August 1, 2013-support a finding of a causal connection between her exposure and the ensuing disability. She suggests that this increase in her reported symptoms undermined the trial court's factual determination that:

While the Court finds that it is possible that her sarcoidosis was exacerbated by the mold present in the classroom, the Court finds that Ms. Duplechin has not proven that that exacerbation was what has caused her disability. Her condition was not dormant prior to this alleged exposure. There's been no showing as to exactly what the mold was, and there has been no further showing as to a causal connection between her current physical condition and this alleged incident. Ms. Duplechin has not worked since October of 2013 for St. Landry Parish School Board. Yet, her testimony is that her condition continues to deteriorate.
Therefore, the Court finds that there's no causal connection between her current physical condition and the alleged aggravating event. The Court, therefore, does not find that Ms. Duplechin is entitled to indemnity benefits or medical benefits.

On review, we first note that a workers' compensation judgment and its reasons for ruling are distinct documents. Lestage v. Nabors Drilling Co. , 10-728 (La.App. 3 Cir. 12/8/10), 54 So.3d 133, writ denied , 11-0088 (La. 2/25/11), 58 So.3d 458. It is the former from which appeals are taken, not the reasons for ruling. Id. Furthermore, whether this court focuses upon a targeted factual finding, such as the exacerbation argument advanced by the claimant, or even the general issue of causation, our review of the record and the documentary evidence reveals no manifest error in the denial of benefits. See Clay v. Our Lady of Lourdes Reg'l Med. Ctr. , 11-1797, p. 11 (La. 5/8/12), 93 So.3d 536, 543 (providing "that factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of review.").

Notably, the claimant explained in her deposition that upon her return to work after the February 2013 extended sick leave, she was "sure that there were some symptoms but they were manageable[.]" However, and while the claimant makes reference to particularized visits with Dr. Santiago immediately before and after the purported exposure, those documents are not contained within the appellate record. In fact, while the exhibits contain numerous pages of Dr. Santiago's records, they do not include the documents to which the claimant refers. Even if these exhibits had been presented to the workers' compensation judge, an event that is not reflected by the record, an appellate court cannot consider evidence that has not been properly and officially offered and introduced into the record. Denoux v. Vessel Mgmt. Serv., Inc. , 07-2143 (La. 5/21/08), 983 So.2d 84. While the exhibits introduced certainly reflect the claimant's underlying condition, as well has her later reporting of increased symptoms, they reveal neither her general condition prior to July 2013, nor her reporting of worsening symptoms immediately thereafter to the degree suggested by her brief. Thus, her assertion that the trial court erred in not presuming that the exposure caused her disability is without evidentiary support.

Rather, the record supports the trial court's ultimate determination that she otherwise failed to bear her burden of proving a causal connection between the exposure and her present alleged disability. Of the records presented to this court, Dr. Santiago's 2014 records reveal that she was experiencing "an exacerbation of her sarcoidosis [,]" not that the exacerbation was attributable to a work-related exposure. Similarly, an August 2014 letter from Dr. Santiago to the claimant's attorney revealed only the claimant's condition and inability to return to work, not a statement as to causation. At most, the records demonstrate that, in May 2015, Dr. Santiago composed a letter in which he advised that:

[The claimant] has had multiple respiratory infections that she relates to exposure to mold in her classroom as well as exposure to sick children in the Fall and Winter initially and now throughout the school year. This has caused her to miss work and file for disability. In my medical opinion, her sarcoidosis was not caused by her school environment. However, its therapy predisposes her to infection so it is more probable than not her condition is aggr[a]vated by exposure to the work environment and children. At present, she has not had an allergic sensitization conversion to molds or environmental allergens.

Similarly, by a note entered in the records and addressed "To Whom It May Concern," Dr. Santiago reported that he was treating the claimant and that: "I feel her respiratory symptoms are aggreviated [sic] by exposure to mold." Again, neither of these statements contain the type of evidence as to causation required by La.R.S. 23:1031.1. Rather, they are only limited opinion as to whether exposure aggravates the claimant's condition.

In fact, the only definitive statement as to causation in this case was submitted by the School Board in the form of a December 2015 report apparently obtained as a second medical opinion. Therein, Dr. J. Darvin Hales reported the alleged exposure and explained that:

[The claimant's] old records were extensive and have been reviewed. At no time could I tell that she had an exacerbation of sarcoidosis. Although she has complained of shortness of breath and cough on a continual basis since 2011, she has preserved pulmonary function, both preserved FVC and FEV1. Furthermore, the mold investigation done by Poche Prouet Associates failed to confirm any clear excess level of mold in the classroom, and the mold exposure she complains about occurred over a short period of time intermittently for less than three months over two years ago. I do not see any evidence that she has suffered any worsening of her sarcoidosis secondary to mold exposure. From the records available, her sarcoidosis has been free of any significant recurrence since at least 2012.

Given the paucity of evidence regarding causation, and in light of the workers' compensation judge's factual findings, we leave the underlying ruling as to causation undisturbed. This finding pretermits consideration of the claimant's remaining prayer for indemnity benefits, as well as penalties and attorney fees.

DECREE

For the foregoing reasons, the ruling of the trial court is affirmed. Costs of this proceeding are assessed to the claimant/appellant, Amy Duplechin.

AFFIRMED.

      The extended sick leave is commemorated in the record by a physician's statement reflecting diagnoses of pyelonephritis, allergies, and bronchitis.

      The claimant's sabbatical medical leave application from the Spring 2005 semester includes a physician's statement reporting the claimant's diagnosis as: "Headache, Viral Syndrome, Chronic Fatigue 2° > Viral Syndrome[.]"

      The record indicates that the School Board engaged Poché Prouet Associates to conduct an evaluation of samples taken from both classrooms. Noting that the classroom materials had been cleaned and discarded, the firm explained that "through visual observation it appeared that there were several issues that could contribute to poor air quality and contribute to mold growth." It noted that:
      It is common for mold spores to be present in buildings. However, the level or count of these spores should be much lower than that of those present outside. Air samples were taken inside and outside for comparison. As you will find in the attached analyzed sample results, mold spores were found. The type of mold spores found inside are common in the outside air and typically found indoors due to the circulation of the outdoor air to the indoor areas by the regular opening of doors and windows.
      The report proposed certain corrective measures, which included cleaning air conditioning coils and systems as well as repairing damaged walls in order to stop moisture infiltration.

      We note that duplication of Assignments 2 and 3 occurs in the appellant's brief.

      The claimant's brief attributes these exhibits to "Claimant's Exhibit No. 2 (Records of Acadiana Medicine Clinic)." The record before the court, however, includes only exhibits submitted by the School Board and those jointly introduced by the parties. The limited exhibits attached to the claimant's trial memorandum do not include the medical records cited by the claimant. While the exhibits include records of the Acadiana Medicine Clinic as "Joint Exhibit M-1[,]" review of that exhibit indicates that it does not include records from the dates referenced by the claimant in her brief to this court.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Roderick THOMAS
    17-671
    Court of Appeal of Louisiana, Third Circuit.
    February 7, 2018
    Honorable Phillip Terrell, Jr., District Attorney, Ninth Judicial District Court, Catherine L. Davidson, Assistant District Attorney, P.O. Box 1472, Alexandria, LA 71309, (318) 473-6650, COUNSEL FOR APPELLEE: State of Louisiana
    Colin Clark, Deputy Solicitor General, Louisiana Department of Justice, P.O. Box 94005, Baton Rouge, LA 70804, (225) 326-6257, COUNSEL FOR APPELLEE: State of Louisiana
    Chad M. Ikerd, Louisiana Appellate Project, P.O. Box 2125, Lafayette, LA 70502, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: Roderick Thomas
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and John E. Conery, Judges.
   GREMILLION, Judge.

In 1974, Defendant, Roderick Thomas, entered a plea of guilty to second degree murder, a violation of La.R.S. 14:30.1. Defendant waived sentencing delays, and the trial court sentenced him to life imprisonment without benefit of parole, probation, or suspension of sentence for the first twenty years. Defendant was seventeen years old when he was sentenced. Subsequently, the legislature amended La.R.S. 14:30.1 to eliminate parole eligibility.

In March 2016, Defendant filed a motion to reconsider sentence based upon the ruling in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that the Constitution bars sentences of life imprisonment without the possibility of parole for juvenile homicide offenders. In March 2017, the trial court heard the motion and modified Defendant's life sentence to include the possibility of parole.

Defendant now appeals, assigning two errors. For the following reasons, Defendant's sentence is affirmed.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the district court erred by amending his sentence to life imprisonment with the possibility of parole, contending that said penalty was not authorized by the legislature and thus was not a legal sentence. He argues that Louisiana "[c]ourts do not have authority to declare 'ranges' of sentences for crimes under the Louisiana Constitution." While he acknowledges that the district court acted in accordance with the holding in State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606, he characterizes the Montgomery ruling as unconstitutional based on his premise regarding court's authority or lack thereof. He reasons that his sentence of life imprisonment with the possibility of parole was improper because at the time of sentencing, the legislature had not authorized such a sentence.

The legislature has recently clarified that certain juvenile homicide offenders sentenced to life imprisonment shall be eligible for parole. Significantly, La.Code Crim.P. art. 878.1 was amended by 2017 La. Acts No. 277, § 2, and now provides in pertinent part:

B. ...
(2) If an offender was indicted prior to August 1, 2017, for the crime of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was held pursuant to this Article prior to August 1, 2017, the following shall apply:
(a) If the court determined at the hearing that was held prior to August 1, 2017, that the offender's sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G).
....
D. The sole purpose of the hearing is to determine whether the sentence shall be imposed with or without parole eligibility. The court shall state for the record the considerations taken into account and the factual basis for its determination. Sentences imposed without parole eligibility and determinations that an offender is not entitled to parole eligibility should normally be reserved for the worst offenders and the worst cases.

However, as Defendant observes, this amendment was not in effect at the time of the resentencing hearing. Essentially, Defendant asserts a separation of powers argument, hinging on his contention that the Montgomery ruling is unconstitutional. Although Defendant makes a lengthy argument, we need not conduct a detailed analysis of this argument, as this court is clearly bound by the rulings of the higher courts. See Oliver v. Magnolia Clinic , 11-2132, 11-2139, 11-2142 (La. 3/13/12), 85 So.3d 39 ; State v. Bertrand , 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738 ; and State v. Saulny , 16-734 (La.App. 5 Cir. 5/17/17), 220 So.3d 871. Thus, we are unable to find that the Montgomery ruling is unconstitutional or accept Defendant's premise that said ruling was unconstitutional or improper.

Defendant also argues that La.Code Crim.P. art. 878.1 cannot be applied to him, as any such application would be ex post facto. Louisiana Code of Criminal Procedure Article 878.1 is merely a codification of Miller and Montgomery . As the attorney general points out, application of the statute would not violate constitutional protections against ex post facto laws because it neither redefines criminal conduct nor increases the penalty for said conduct. See State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790 ; see also State v. Sumler , 51,324 (La.App. 2 Cir. 5/2/17), 219 So.3d 503 (discussing the 2013 version of La.Code Crim.P. art. 878.1 ).

Defendant's attacks on the jurisprudence would require this court to review the rulings of higher courts. This court is bound by Montgomery . His arguments suggesting that applications of the relevant statute would be ex post facto are inapposite. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues the trial court erred by failing to hold a resentencing hearing to determine whether a life sentence with parole eligibility is constitutionally excessive. Parole eligibility satisfies the requirements of Miller . See State v. Doise , 15-713 (La.App. 3 Cir. 2/24/16), 185 So.3d 335, writ denied , 16-546 (La. 3/13/17), 216 So.3d 808, see also Sumler , 219 So.3d 503. Further, it is clear that La.Code Crim.P. art. 878.1 is a statutory implementation of Miller . Thus, this assignment lacks merit.

DECREE

Defendant, Roderick Thomas's, sentence is affirmed.

SENTENCE AFFIRMED.


text:
    Melody P. SMITH v. Marcus SAM, et al.
    17-664
    Court of Appeal of Louisiana, Third Circuit.
    February 7, 2018
    Gloria A. Angus, Angus Law Firm, LLC, P. O. Box 2337, Opelousas, LA 70571, (337) 948-8800, COUNSEL FOR PLAINTIFF/APPELLANT: Melody P. Smith
    Lance Edward Harwell, Staines & Eppling, 3500 North Causeway Blvd. Suite 820, Metairie, LA 70002, (504) 838-0019, COUNSEL FOR DEFENDANT/APPELLEE: Circle K Stores, Inc.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion , and John E. Conery, Judges.
   GREMILLION, Judge.

Melody Smith, the plaintiff-appellant, appeals the trial court's judgment granting summary judgment in favor of the defendant-appellee, Circle K Stores, Inc. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Smith, who was a manager-trainee of Circle K, was robbed at gunpoint by Marcus Sam while attempting to make a bank deposit for Circle K. Smith, who has collected workers' compensation benefits since the incident, filed a petition for damages against Sam and Circle K amongst others. Circle K thereafter filed an exception of no right of action/no cause of action and motion for summary judgment urging that Smith's only remedy existed in workers' compensation and that Smith would not be able to prove that an intentional tort was committed by Circle K. Smith filed an amended and supplemental petition alleging that the Circle K manager was "substantially certain" that Smith would be robbed after instructing Smith to make the deposit in front of Sam. The petition further alleged that Sam was the boyfriend of Smith's co-worker. Smith further claimed that the robbery was inevitable due to the announcement in front of customers. Smith's amended petition states:

Circle K Stores committed intentional torts of assault and/or battery on Plaintiff, Melody Smith, because it was substantially certain that one within earshot of hearing that a person is making a money deposit to the bank would be robbed by an armed person, and as a consequence, it was substantially certain that its employee would be shot and wounded or killed in the process of a robbery.

Smith concedes that the manager did not intend for the robbery to occur but that she was substantially certain it would occur. At a December 2014 hearing, the trial court indicated that summary judgment was premature and that Smith should be allowed discovery before it ruled on the motion.

In July 2016, after discovery deadlines had lapsed, Circle K filed another motion for summary judgment urging that Smith's tort claim was barred by the exclusive remedy provisions of the LWCA and that Smith had not "taken a single deposition, obtained a single affidavit, produced a public record or otherwise taken any action to support her claim of a conspiracy or to otherwise show that Circle K was substantially certain that Smith would be injured in a robbery."

Following an October 2016 hearing, the trial court rendered judgment in November 2016 granting summary judgment in favor of Circle K. Smith now appeals and assigns as error:

1. Granting a Summary Judgment in a case involving examination of a person's knowledge, intent or credibility when it was demonstrated by the plaintiff that the manager's intent was to bring about harm to the appellant; and 2. Granting a summary judgment after Appellant brought forth evidence to support her shifting burden of proof that a material issue of fact exists as to whether the managers' acts were intentional and the defendant's only arguments [sic] is that the plaintiff cannot prove her case.

DISCUSSION

We review a trial court's grant of summary judgment de novo using the same legal standards applicable at the trial court level. Lewis v. Old Republic Ins. Co. , 17-456 (La.App. 3 Cir. 8/23/17), 226 So.3d 557. The mover bears the burden of proving that summary judgment should be granted in its favor, but if the mover will not bear the burden of proof at trial, it need only point out the other party's inability to prove an element of her case. La.Code Civ.P. art. 966(D)(1). The other party must provide some evidence establishing that a genuine issue of material fact exists such that summary judgment is inappropriate. Id.

Pursuant to La.R.S. 23:1032(A)(1)(a), an employee's exclusive remedy for accident or injury occurring in the workplace is via workers' compensation unless an intentional tort has been committed. The seminal case defining an intentional tort is Bazley v. Tortorich , 397 So.2d 475 (La.1981).

The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did. Several courts of appeal have stated the two prongs of the definition in the conjunctive, thus requiring a plaintiff to prove, in order to recover, that the defendant desired the physical results of his act in every case. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.

Id. at 482 (citations omitted).

Even "reckless or wanton conduct or gross negligence" does not amount to intent. Blevins v. Time Saver Stores, Inc. , 99-383 (La.App. 5 Cir. 10/26/99), 746 So.2d 191, 193. The intentional act exception is narrowly construed. Id. The term "substantially certain" has been discussed by Louisiana courts numerous times, and it is clear that in order for an action to have been substantially certain to result in a certain consequence, the outcome must have been "nearly inevitable," "virtually sure," and "incapable of failing." Id. at 193.

We have reviewed the record and find that Smith has not produced any evidence whatsoever to suggest, much less prove, that an intentional tort occurred, despite being given ample time to do so. Instead, we have multiple assertions in various documents filed by Smith that are unsupported by any type of evidence. Smith's brief lists eleven "material issues of disputed facts" alleging things that the store manager knew such as:

1. The Circle K store manager told Appellant to make the deposit on September 21, 2013, the day of the robbery because the Circle K manager was certain that she (Circle K manager) would be robbed that same day by that robber, Marcus Sam;
2. Circle K manager, as well as any reasonable prudent person, is certain that if you tell a robber the date, time and place of your next deposit, that the same robber will rob you.
3. The Circle K manager, as well as the general public, knows that Marcus Sam is a known drug abuser;
4. The Circle K manager, as well as the general public, knows that the robber is a known criminal;
5. The Circle K manager, as well as the general public, knows that the robber commits all types of criminal activities to support his drug addiction;
6. The Circle K manager knows that, given the opportunity, the robber would rob anyone to support his drug addiction;

(Footnotes omitted).

Smith further makes assertions referencing Sam's sentencing hearing where it was determined that he was in the store and was a known habitual offender. Smith claims the "Store manager knew that Melody Smith would be robbed by Marcus Sam after she instructed Melody Smith to make the deposit in front of Marcus Sam." However, she produces no evidence whatsoever such as an affidavit or deposition testimony of any person or employee, including the store manager who is referenced by her first name only.

Even if we accepted Smith's argument as true that the store manager requested in front of store patrons that Smith make the deposit, this act would not rise to the level of an intentional act required to circumvent the application of the exclusive remedy of workers' compensation. There simply is no evidence in the record to suggest what the store manager knew or intended. Smith then makes various allegations that "everyone" knows Sam is a drug addict who will do anything to support his habit and, therefore, the store manager should have known Smith would be robbed. Again, however, there is no evidence of what the store manager knew, only various unsubstantiated allegations by Smith.

The record is devoid of any evidence indicating that the Circle K store manager intended or was substantially certain that Smith would be robbed by Sam while making a deposit at the bank. Smith has failed to show that a genuine issue of material fact exists. Accordingly, the trial court did not err in granting summary judgment in favor of Circle K.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of Circle K Stores, Inc. is affirmed. All costs of this appeal are assessed against plaintiff-appellant, Melody Smith

AFFIRMED .

THIBODEAUX, Chief Judge, concurs in the result.

      Smith also filed suit on behalf of her children, Miranda Roberts, Keyana Freemen, and Peyton Jolivette.


author: WINDHORST, J.

text:
    Ashley O. WILSON v. Chris M. WILSON
    NO. 17-CA-299
    Court of Appeal of Louisiana, Fifth Circuit.
    December 29, 2017
    COUNSEL FOR PLAINTIFF/APPELLEE, ASHLEY O. WILSON, Stephen R. Rue, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, CHRIS M. WILSON, Melvin G. Ripp, Jr., Gretna
    Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst
   WINDHORST, J.

Appellant, Chris Wilson, appeals the trial court's November 28, 2016 judgment. For the reasons that follow, we affirm the November 28, 2016 judgment. We further affirm the April 20, 2016 interlocutory order awarding appellee attorney's fees and court costs.

Facts and Procedural History

The parties were married in Plaquemines Parish on August 15, 1992, and they established their domicile in Jefferson Parish. One child was born of the marriage on January 6, 1994.

The parties physically separated on January 21, 2000. On January 18, 2006, the parties met with appellee's attorney, Nelson Cantrelle, Jr., and executed divorce pleadings. The parties then proceeded to the courthouse where appellee's La. C.C. art. 103 petition for divorce was filed. The petition alleged that the parties had lived separate and apart and without reconciliation since January 21, 2000. In her prayer, among other issues, appellee requested child support in the amount of $550.00 per month. On the same day, appellant filed an answer generally denying the allegations in the petition for divorce. The parties also filed a motion to set the matter for trial on the merits which was set for January 18, 2006. Appellee waived notice of the motion to set for trial.

On January 18, 2006, after a trial on the merits, judgment was rendered granting appellee's petition for divorce. The judgment also awarded the parties joint custody of the minor child with appellee as the domiciliary parent. Appellant was ordered to pay appellee $550.00 dollars per month, plus 100% medical insurance coverage and uncovered medicals for the support of the minor child. The judgment further stated that the community assets had been amicably divided and that each party was in possession of the items belonging to him or her.

On November 3, 2015, appellee filed a "Rule for Contempt, to Compel Payment of Child Support, Request for Attorney's fees, and Court Costs," wherein appellee contended that appellant failed to pay any child support. The rule requested the trial court to compel appellant to immediately pay past due child support and to find appellant in contempt for failing to comply with his child support obligation. The rule further requested attorney's fees and court costs incurred for filing and prosecuting the rule.

On December 14, 2015, appellant filed a "Rule for Contempt, Accounting for Overpayment of Child Support, Request for Attorney's Fees and Cost." In his rule, appellant argued that he paid child support in excess of $550.00 per month. He also asserted that appellee's allegation that he did not pay was a "falsehood," and therefore appellee should be held in contempt. In response to appellant's rule, appellee filed exceptions of no cause of action and vagueness. Appellant filed a "Supplemental and Amending Rule." On February 3, 2016, after a hearing, the domestic commissioner granted appellee's exceptions and dismissed appellant's rule for contempt. Subsequently, appellee filed a motion to compel discovery responses and requested attorney's fees and costs. On April 20, 2016, the trial court granted appellee's motion to compel discovery and ordered appellant to respond within 15 days. The trial court further awarded $500.00 in attorney's fees and court costs.

On February 4, 2016, the parties appeared before the hearing officer on appellee's rules filed November 3, 2015. The parties stipulated that "the braces & health insurance payments are required by Judgment. Chris Wilson retracts his claim for reimbursement for payment of expenses for the child after she became a major." The hearing officer recommended that the parties testify as to whether payments made by appellant for tuition, cheerleading, purchase of car, and car insurance should be credited toward child support payments. Appellee objected to the hearing officer's recommendation. The trial court heard appellee's rules for contempt and to compel payment of past due child support on May 18, 2016. On November 28, 2016, the trial court rendered judgment: (1) finding that the January 18, 2006 judgment remained in full force and effect and had not been modified, reduced, or terminated by a court, nor had there been any extrajudicial modification of the judgment; (2) ordering appellant to pay appellee past due child support in the amount of $41,869.85, plus judicial interest; and (3) awarding appellee attorney's fees in the amount of $12,287.60 and court costs for her rule in the amount of $1,304.89.

Discussion

A child support judgment remains in full force and effect until the party who is responsible for payment has it modified or terminated by the court. Bourgeois v. Bourgeois, 09-106 (La. App. 5 Cir. 06/23/09), 16 So.3d 431, 439 (citing Halcomb v. Halcomb, 352 So.2d 1013 (La. 1977) ); Brasfield v. Brasfield, 98-1021 (La. App. 5 Cir. 02/23/99), 729 So.2d 83, 84. However, a judgment awarding child support can be extrajudicially modified by agreement of the parties. Brasfield, 729 So.2d at 85. Such an agreement must meet the requisites of a conventional obligation and must foster the continued support an upbringing of the child. Id.; McAlpine v. McAlpine, 94-1594 (La. 09/05/96), 679 So.2d 85, 91 ; Dubroc v. Dubroc, 388 So.2d 377, 380 (La. 1980) ; Palmer v. Palmer, 95-608 (La. App. 1 Cir. 11/09/95), 665 So.2d 48, 51.

The burden of proof is on the person seeking to modify his obligation.

Brasfield, 729 So.2d at 85. There must be a clear showing that the parties agreed to change and the change must not be detrimental to the child. Id.; Dubroc, 388 So.2d at 380 ; Timm v. Timm, 511 So.2d 838, 840 (La. App. 5 Cir. 1987). Failure to protest or acquiesce in a unilateral reduction does not defeat an action for arrearages or amount to a waiver. Casey v. Casey, 02-246 (La. App. 4 Cir. 05/29/02), 819 So.2d 1108, 1112 ; New v. New, 93-702 (La. App. 5 Cir. 01/25/94), 631 So.2d 1183, 1186, citing Dubroc, supra.

The grounds for an action in nullity are provided exclusively pursuant to La. C.C.P. art. 2001, et seq. There are two types of nullity of judgments: (1) absolute nullity, i.e. , null for vice of form pursuant to La. C.C.P. art. 2002 ; and (2) relative nullity, i.e. , null for vice of substance, pursuant to La. C.C.P. art. 2004. An action to annul a final judgment based on La. C.C.P. art. 2002 may be brought at any time. La. C.C.P. art. 2002 B. However, a defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in La. C.C.P. art. 2002. La. C.C.P. art. 2003 ; see also La. C.C.P. art. 2002 B.

The trial court's factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the trial court's findings are reasonable based on the record reviewed in its entirety, the court of appeal may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990). An appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. State, D.S.S. ex rel. D.F. v. L.T., 05-1965 (La. 07/06/06), 934 So.2d 687, 690 ; Dep't of Children & Family Servs. (DCFS) v. Alexander, 16-387 (La. App. 5 Cir. 12/28/16), 228 So.3d 1261.

In his first three assignments of error, appellant contests the validity of the January 18, 2006 judgment, ordering appellant to pay appellee $550.00 per month in child support. Appellant argues that: (1) the January 18, 2006 judgment is an absolute nullity because the petition for divorce did not comply with La. C.C.P. art. 1702 and La. C.C.P. art. 1701, and therefore, all subsequent interlocutory orders and/or trials are null and void; (2) the January 18, 2006 judgment is not a valid award of child support because the trial court did not consider the child support guidelines in reviewing the adequacy of the stipulated amount of child support nor did the trial court provide written reasons warranting a deviation from those guidelines; and (3) the trial court erred in not considering the unique nature of the relationship between the parties and the minor which existed prior to the January 18, 2006 judgment.

A review of the record reveals that the validity of the January 18, 2006 judgment was not properly before the trial court. The January 18, 2006 judgment awarding appellee child support in the amount of $550.00 per month remained in full force and effect at the time of the May 18, 2016 hearing on appellee's rules for contempt for failure to pay child support and to compel payment of past due child support. Despite appellant's contentions to the contrary, the nature of the parties' relationship concerning child support prior to the January 18, 2006 judgment is irrelevant. Appellant did not appeal, file a petition for nullity, or move to modify, reduce, or terminate the January 18, 2006 judgment. Furthermore, appellant did not sustain his burden to show that the parties entered into an extrajudicial agreement after the January 18, 2006 judgment awarded appellee child support. Based on the testimony and evidence, we find that the trial court did not commit manifest error or abuse its discretion in granting appellee's rule to compel past due child support in the amount of $41,869.85. The first three assignments of error are therefore without merit.

In his last assignment of error, appellant assigns as error the trial court's ruling on a pretrial discovery matter. Appellant contends that the trial court erred when it awarded $500.00 in attorney's fees and court costs on April 20, 2016, in connection with appellee's motion to compel.

A party to litigation may apply for an order compelling discovery when another party fails to answer properly propounded discovery. La. C.C.P. art. 1469. If the trial court grants the motion, it shall require the party whose conduct necessitated the motion to pay the reasonable attorney's fees and expenses incurred by the moving party in obtaining the order, unless opposition to the motion was substantially justified or other circumstances make an award of expenses unjust. Id.

A trial court has broad discretion in determining whether a refusal to produce documents was substantially justified. Baker v. Harrah's, 15-229 (La. App. 4 Cir. 03/09/16), 190 So.3d 379, 389, writ denied, 16-659 (La. 05/27/16), 192 So.3d 743 ; Succession of Holliday, 576 So.2d 1155, 1157 (La. App. 3 Cir.), writ denied, 581 So.2d 708 (La. 1991). We find the trial court did not abuse its discretion in awarding attorney's fees and court costs in the amount of $500.00 for appellant's failure to answer discovery.

Conclusion

For the above stated reasons, the November 28, 2016 judgment is affirmed. We further affirm the April 20, 2016 interlocutory order awarding appellee attorney's fees and court costs in the amount of $500.00.

AFFIRMED

      Appellant did not sign the petition for divorce, but he did sign a verification that the allegations in the petition were true.

      In his brief, appellant argues that he was not present in the trial court on January 18, 2006. However, the minute entry dated January 18, 2006 provides that appellee was present with her attorney, Mr. Cantrelle, appellant was present in proper person, and both parties testified as witnesses. The January 18, 2006 judgment also states that both parties were present.

      During the hearing, appellant stated on the record that he "abandons any hint of a request for reimbursement" and "any request for any accounting."

      Appellee's rule for contempt was heard on May 18, 2016. However, the judgment is silent as to whether the trial court found appellant in contempt. When a judgment is silent as to a claim or demand that was litigated, it is presumed to be deemed denied by the trial court. Cambre v. St. John the Baptist Parish, 12-590 (La. App. 5 Cir. 05/16/13), 119 So.3d 73, 81, writ denied, 13-1415 (La. 10/11/13), 123 So.3d 1227.


text:
    STATE of Louisiana v. Richard BENOIT
    NO. 17-KA-187
    Court of Appeal of Louisiana, Fifth Circuit.
    December 29, 2017
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Jeffrey M. Landry, Winston White, Baton Rouge
    COUNSEL FOR DEFENDANT/APPELLANT, RICHARD BENOIT, Mark A. Marino, Destrehan
    Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

Defendant, Richard Justin Benoit, appeals his convictions of sexual battery (count one) and attempted aggravated incest (count two). For the reasons that follow, we affirm defendant's convictions and sentence on count one; vacate defendant's sentence on count two and remand for resentencing on count two.

Facts and Procedural History

Defendant was indicted by a grand jury on May 8, 2012, and charged with aggravated rape of a minor, L.B., under the age of thirteen, in violation of La. R.S. 14:42(4) (count one) and with aggravated incest of L.B, in violation of La. R.S. 14:78.1 (count two). Defendant pled not guilty on June 20, 2012.

On April 7, 2014, after a four day trial, a twelve-person jury found defendant guilty of the responsive verdicts of sexual battery on count one and attempted aggravated incest on count two. On July 30, 2014, defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial, which were denied by the trial court. Defendant was sentenced to fifty years at hard labor with thirty-five years without the benefit of parole, probation, or suspension of sentence on count one and forty-nine and one-half years on count two, to be served concurrently. Defendant filed a motion to reconsider sentence, which was denied by the trial court on August 29, 2014. On September 25, 2014, defendant filed a motion for appeal, which was granted by the trial court on September 26, 2014. This appeal followed.

On February 29, 2012, Detective Walter Banks, a juvenile detective with the St. Charles Parish Sheriff's Office, met with J.A., the mother of the victim, L.B., regarding a complaint of child sexual abuse. He spoke with J.A. and L.B. individually. J.A. stated that L.B. told her that L.B.'s dad, defendant, touched her inappropriately and tried to have sex with her four times. L.B., who was eight years old at the time, disclosed that she was sexually abused by her father. L.B. stated that defendant tried to "stick his...private part" in her "private part," however, he was not successful because she "squeeze[ed]" her "butt." Her dad also watched a video on his cell phone to see how he could "do it." She told the detectives that her "dad has sex problems." He told her that he could not go to sleep without it. She was scared to tell anyone because defendant told her if she ever told anyone, the police would be called, and they would "slit off his neck." She stated that this occurred four times, and he "touched her everywhere with his private." One time, he put green dish soap on his private to "make it slippery" to "try to stick it in easier," but was unsuccessful. She explained that this happened when she stayed with her dad, his ex-wife, J.B., and the three boys at his trailer.

At trial, J.A. testified that these allegations by L.B. were brought to her attention in January 2012 when L.B. protested visiting with her dad on his weekend. L.B. told her that she did not want to go because her dad was touching her. After this disclosure, J.A. spoke with J.B., defendant's ex-wife, who currently lived with defendant, and they confronted defendant about the allegations. J.A. testified that defendant denied the allegations, but after specific details provided to J.B. by L.B. were revealed, he "second-guessed" himself. She did not initially call the police because she did not want her daughter's name "slandered out over St. Charles Parish." However, she ultimately contacted the police.

At the time of trial, L.B. was ten years old and testified that when she was six or seven, her dad would come home from the bar and move her from where she was asleep on the sofa to her room and "sexually abuse" her. Her dad would remove her clothes and their "privates" touched. L.B. explained that his "private" was "between my legs." He told her that he "needed to do that or he couldn't go to bed." His private did not go all the way in her "tu-tu." His private also went by her "butt," but it did not go in there either. L.B. stated that this happened four or five times. She testified that he put green soap that smelled like green apples on his private part. She did not tell anyone because she "loved him at that point," and he told her that if she said anything, they would "chop off his head." She finally told her mom what happened because her "dad got his own apartment, and I was afraid that he was going to do it day and night."

Anne Troy, a nurse practitioner at Children's Hospital who was qualified as an expert in pediatric forensics, specializing in child maltreatment, including physical and sexual abuse, testified that she conducted a forensic evaluation of L.B. on March 5, 2012. Ms. Troy stated that L.B. provided a spontaneous, detailed disclosure of abuse. In explaining what happened to her, L.B. did not "pause as if remembering something that she was told to say," and Ms. Troy diagnosed sexual abuse. Ms. Troy further stated that L.B. presented with other non-specific behavioral issues, including urinary control problems, mood swings, weight changes, eating problems, and loss of energy, that are symptoms that "would be consistent with sexual abuse."

After speaking with J.A. and L.B., Detective Banks obtained a search warrant for defendant's current apartment and the trailer home where he lived when the incidents occurred. Detective Banks also prepared an arrest warrant for defendant, which was executed at the same time as the search warrant. Defendant was arrested at his apartment, where he was Mirandized, and agreed to speak with Detective Banks. Defendant stated that the only time he "touched" his daughter was to help her "wipe herself" after using the bathroom. In his initial statement, defendant voluntarily acknowledged that he had a self-diagnosed "sex addiction" and a "drinking problem." He stated he could not go to sleep if he did not have sex. He admitted that on five or six occasions, after a night of drinking, he found himself at home but could not remember what happened or how he had gotten home. He conceded that on one of these occasions the allegations made by L.B. "could have happened." Once defendant was transported to the jail, defendant gave another statement. In his second statement, defendant said, "I definitely don't think she would lie about all that, not that detailed." He reiterated that he believed his daughter, which is why he stated that "there's definitely that possibility that I, .. I could have."

Defendant testified at trial that he never sexually abused or touched L.B. inappropriately. He first learned about these allegations in February 2012, when he was confronted by J.A. and J.B. On the five or six occasions he told police that he was drinking and had no knowledge of what happened, L.B. had only stayed with him for one of those times. When further confronted with his acknowledgment of how the abuse could have happened, he testified that he only said what he thought he should say so he could go back to his cell. When he was brought to the jail, he was placed on suicide watch and put in paper clothes. The interview room was cold and he was "ready to get out of the room"

because he was "tired of discussing this with them."

J.B. testified on behalf of defendant. She stated that while she initially believed L.B. about the allegations, the more she thought about it, "stuff didn't really start falling in place" and believed that "it couldn't have happened on those days" alleged by L.B.

On rebuttal, the State called Shakira Herbert, a child welfare specialist with the Department of Children and Family Services, who testified that she investigated this case and spoke with defendant regarding the allegations. Defendant spoke with her willingly and told her that while he did not remember being sexually inappropriate with L.B., "when he was wasted, it could be possible."

Discussion

In his first assignment of error, defendant argues that the trial court erred in failing to make a determination that the victim in this case, L.B., was competent under La. Code of Evidence art. 601. He contends that a child, like any other witness, must be shown to have "proper understanding," and during the short colloquy between the trial court and L.B. before her testimony, the trial court failed to make this determination.

The record shows that before L.B. was sworn in, the trial court engaged in a short colloquy with her. In the colloquy, the trial court asked L.B. questions about her age, where she went to school, her favorite school subject, and the importance of telling the truth. After this colloquy, L.B. was sworn in and testified regarding the subject matter of this case. At no point either before the colloquy, at the time of her testimony, or after her testimony concluded, did defendant challenge L.B.'s competency to testify. Defendant first raised this issue in his motion for new trial, wherein he argued that there was no determination of L.B.'s competency as required by La. C.E. art. 601. The trial court denied the motion.

In order to preserve the right to seek appellate review of an alleged trial court error, the party alleging the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La. C.Cr.P. art. 841 ; State v. Gaal, 01-376 (La. App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied, 02-2335 (La. 10/03/03), 855 So.2d 294. The purpose of the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant, procedural irregularity, or evidentiary mistake. Id.

Further, a defendant is limited to the grounds for objection that he articulated in the trial court, and a new basis for the objection may not be raised for the first time on appeal. State v. Taylor, 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 594. While competency was raised in his post-trial motion for new trial, because there was no timely objection made as to L.B.'s competency before, during, or after her testimony articulating the grounds for his objection, this issue was not properly preserved for appeal.

In his second assignment of error, defendant argues that the trial court erred in not granting his motion for mistrial after the State inappropriately referred to an inculpatory statement by defendant during opening arguments. Pursuant to La. C.Cr.P. art. 767, the State was prohibited from making any reference in its opening statement to a confession or inculpatory statement unless the statement had been previously ruled admissible. Defendant contends that the State had a duty to show that the statement was made freely and voluntarily. He argues that under the clear reading of La. C.Cr.P. art. 767, reference to it by the State during opening statements prior to the statement being admitted was prejudicial to defendant.

After voir dire , the State formally filed its notices stating that all statements were provided in discovery and no motions challenging the admissibility of the statements were filed by defendant. The State further argued that because defendant did not file a pretrial motion to suppress his confession, any objection was waived pursuant to La. C.Cr.P. art. 703. The State then requested the trial court to "take notice and grant the motions." Defendant argued that he could not object to the notices because the State had not moved to introduce the statements into evidence. The trial court declined to grant the introduction of the statements into evidence, but allowed the notices to be filed into the record. When specifically asked by the trial court if he intended to object to the State alluding to defendant's statements in its opening statement, defense counsel responded "No. I can't." The trial court found that defendant's statements could be alluded to during opening statements, but no evidentiary rulings would be made at that time.

During opening statements, the State referred to defendant's statement, as follows:

You're also going to hear from the Defendant. He talks to the police. He gives his statement to the police, and he tells them: Well, I don't think I did it, but if I did, it's when I was drinking, because I'm a sex addict. I have a severe sex addiction. I need help. I need to go to the same place Tiger Woods went. You're going to hear that.
You're also going to hear him telling the police: I think she's telling the truth. Y'all need to get my daughter help. I don't think she would lie about this. With my addiction, I think it's possible that I did this when I was drinking.

Following these remarks, defendant moved for a mistrial pursuant to La. C.Cr.P. art. 767. He argued that because he did not file a motion to suppress, there was no ruling as to the admissibility of the statement and claimed that the notices filed in court did not give the State the authority to reference the statement during opening statements. In his argument, defendant also referenced La. C.E. art. 404, claiming that the State improperly referred to defendant's sexual addiction problem. Defendant argued that the State improperly referred to his character or trait to show that he acted in conformity therewith. The State responded that it filed all the proper notices and the statements were previously provided in discovery. The State argued that defendant waived his objection to the admissibility of the statement on any grounds that could be raised in a motion to suppress by not filing a motion to suppress. The State further argued that this was not character evidence, rather it was the defendant's own statements wherein he specifically talked about the crimes charged. Defense counsel responded that even though he did not file a motion to suppress, the State still had an obligation to prove that the statement was given freely and voluntarily.

The trial court denied the motion for mistrial, reasoning that defense counsel had notice, and that the purpose of the La. C.Cr.P. art. 767 prohibition was "not to be taken by surprise or prejudiced in preparing for your defense." The trial court further found that the statement was not character evidence used to prove that defendant acted in conformity with the character evidence. After defendant's opening statement in which defense counsel referenced the previously objected to statements, the trial court further instructed the jury that opening statements were statements by the attorneys and not evidence, and that the jury's determination of facts must be based on all the testimony and evidence admitted.

A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to a defendant, depriving him of a reasonable expectation of a fair trial. State v. Licona, 13-543 (La. App. 5 Cir. 05/21/14), 141 So.3d 333, 339. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. State v. Lagarde, 07-123 (La. App. 5 Cir. 05/29/07), 960 So.2d 1105, 1113-14, writ denied, 07-1650 (La. 05/09/08), 980 So.2d 684.

La. C.Cr.P. art. 767 reads:

The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant unless the statement has been previously ruled admissible in the case.

In State v. Lisotta, 97-407 (La. App. 5 Cir. 02/25/98), 712 So.2d 525, 527 the State in its opening statement said:

You're also going to hear from Deputy Kuhn that this defendant made several statements at the time that he was arrested denying certain things, saying things that the State intends to show, prove, that he's guilty, exactly what we say he's guilty of.

In Lisotta, defendant moved for a mistrial pursuant to La. C.Cr.P. art. 767 because any statements allegedly made by the deputy had not yet been deemed admissible. This Court found that the record showed that prior to trial, the State had filed a notice of its intent to use and introduce defendant's statements into evidence. This Court reasoned that the purpose of La. C.Cr.P. art. 767 is to prevent surprise and prejudice. Finding State v. Strickland, 683 So.2d 218 (La. 1996) controlling, this Court found that because the deputy's statement was admitted during trial, the State's premature mention of the statement in its opening statement to the jury caused no prejudice. See also, State v. Roberts, 06-765 (La. App. 3 Cir. 01/17/07), 947 So.2d 208, 230 ; State v. Whitmore, 353 So.2d 1286, 1288-1289 (La. 1977).

Similarly, in this case, the record shows that the State filed a notice of its intent to use defendant's statements during opening statement and to introduce them into evidence and that defendant's statements were subsequently admitted into evidence at trial. We find that the State's premature mention of defendant's statements in the State's opening statement caused no real prejudice to defendant because the statements were later determined admissible at trial. Accordingly, the trial court did not abuse its discretion in denying the motion for a mistrial.

In his third assignment of error, defendant argues that the trial court erred by denying his motion for a mistrial. He contends that the two notes sent by jurors to the trial court prior to deliberations indicate that the jury began its deliberations prior to the State resting its case. He argues that this constituted a legal defect in the proceedings, warranting a mistrial. Defendant claims that his right to a fair trial was violated because the notes showed that the jury was discussing issues prior to the State resting, which is a direct violation of the trial court's instructions not to discuss the matter prior to the completion of the trial.

At the start of the fourth day of trial, before the State formally rested its case, two jurors sent individual notes to the trial court with questions: "Can we listen to the jail telephone call again?" and "Are transcripts allowed to review while we are in deliberation?" The State had not published all of the evidence to the jury yet, and a discussion out of the presence of the jury between the trial court, the State, and defense counsel was held regarding how these questions were to be addressed. Following this discussion, defense counsel moved for a mistrial arguing that a legal defect in the proceeding occurred based on the jury's failure to follow the instructions of the court to not discuss the case before deliberations. The State responded that there was no indication that the jury was discussing the case or deliberating in violation of the trial court's order. The trial court denied the motion.

Juror misconduct is not grounds for an automatic mistrial; prejudice must also be established. State v. Day, 414 So.2d 349, 350 (La. 1982). In any trial, there is a presumption of jury impartiality. United States v. Winkle, 587 F.2d 705, 714 (5th Cir. 1979), cert denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979). Prejudice may be shown by evidence that an extrinsic factual matter tainted the jury's deliberations. Thus, an adequate demonstration of extrinsic influence upon the jury overcomes the presumption of jury impartiality and shifts the burden to the State to show that the influence demonstrated was not prejudicial. State v. Collins, 02-546 La. App. 5 Cir. 11/26/02), 833 So.2d 476, 478, writ denied, 03-0059 (La. 10/03/03), 855 So.2d 307.

In State v. Horne, 28,327 (La. App. 2 Cir. 8/21/96), 679 So.2d 953, 956, writ denied, 96-2345 (La. 02/21/97), 688 So.2d 521, after his conviction, defendant argued in a motion for new trial that "pre-deliberation discussion among the jurors, including the alternates, was equivalent to allowing the alternate juror to participate in deliberations resulting in an illegal procedure." Id. at 957. The court held,

[C]ommunications among jurors, although violating the trial court's instructions, do not amount to "outside influences" or "extraneous" information. The defendant alleges no fact suggesting that the jury based its verdict on prohibited factors such as coercion by a party, or inadmissible evidence of other crimes obtained from an out-of-court source.

Id. at 958. The court found that the trial court properly denied the defendant's motion for new trial and attendant request to examine the jurors because the intra-jury communications, if they took place, were not improper outside influences, extraneous prejudicial information, or objectively verifiable misconduct. Id. at 958. See also State v. Emanuel-Dunn, 03-0550 (La. App. 1 Cir. 11/07/03), 868 So.2d 75, 82, writ denied, 04-0339 (La. 6/25/04), 876 So.2d 829.

In State v. Lewis, 05-170 (La. App. 5 Cir. 11/29/05), 917 So.2d 583, 597, writ denied, 06-0757 (La. 12/15/06), 944 So.2d 1277, the defendant argued that the alternate juror participated in pre-deliberation discussions which could have amounted to deliberations of defendant's guilt before the conclusion of the evidence. This Court found that even if such discussions took place, the alternate juror was not an outside source and such discussions were intra-jury communications only, and concluded that the trial court did not err in denying defendant's motion for new trial.

Based on the limited information in the record, we find any alleged intra-jury communications, if they took place, were not necessarily proven, and were not improper outside influences, extraneous prejudicial information, or objectively verifiable misconduct, and thus, the trial court properly denied the motion for mistrial.

In his fourth assignment of error, defendant argues that during the "entire trial," the State continuously alluded to character traits of defendant, such as his moral quality to show that he acted in conformity therewith. Defendant points to the reference made in the State's opening arguments that defendant was a "sex addict." Defendant also complains about the introduction of his statements given to police, which he argues were introduced to show that he acted in conformity therewith. He contends that a mistrial should have been granted after opening arguments of the State, and his objections to the admissibility of the statements should have been sustained.

Rule 2-12.4 of the Uniform Rules, Courts of Appeal, provides that the appellant's brief must contain "a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case, ...giving accurate citations of the pages of the record and the authorities cited[.]" The rule further states that the court "may consider as abandoned any specification or assignment of error which has not been briefed." Insofar as defendant's argument applies to alleged errors throughout the "entire trial," we find that this contention is vague, unsupported, not properly briefed, and is considered abandoned. However, defendant's argument referring to the alleged error with the State's opening statement and the admission of defendant's statements, while it does not provide specific citations from the record, does sufficiently allege fact-specific references from the record and as such, will be considered by this Court.

The State in its opening statement referred to defendant's statements wherein defendant stated that he was a "sex addict." Defendant moved for a mistrial, pursuant to La. C.Cr.P. art. 767, but also argued this reference violated La. C.E. art. 404 in that evidence of a person's character, such as moral quality, was not admissible for the purpose of proving that he acted in conformity therewith. The State responded that the purpose behind the introduction of the statement was not to prove conformity therewith; rather, the statement was defendant's "own statements talking specifically about this crime." The trial court denied the motion for mistrial.

Additionally, before defendant's statements were admitted into evidence, defense counsel objected based on La. C.E. art. 404 A, arguing improper use of character evidence to show that defendant acted in conformity therewith. He argued that the statement should have been redacted by the State to exclude those types of references. The State responded that defendant's statements about his sexual addiction and drinking problem were used to corroborate the victim's statement. The State maintained that defendant gave the statement voluntarily and volunteered this information. The trial court admitted the statements into evidence.

Article 404 A of the Louisiana Code of Evidence states, in pertinent part, "Evidence of a person's character or a trait of his character, such as a moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion[.]"

At the outset, we note that defendant did not provide any specific legal authority to support his contention that a mistrial should have been granted based upon an alleged La. C.E. art. 404 A violation nor his contention that defendant's own statements should have been inadmissible based upon improper character evidence. Defendant generally cites La. C.E. art. 404 for the proposition that evidence of a person's character is not admissible in a criminal proceeding for proving that he acted in conformity therewith on a particular occasion and that any exception to this rule must be weighed by the court to determine if the probative value is outweighed by its prejudicial effect.

In State v. Coleman, 02-1000 (La. App. 4 Cir. 09/25/02), 828 So.2d 1130, 1138, writ denied, 03-2533 (La. 09/24/04), 882 So.2d 1153, the defendant argued that the trial court erred in denying his motion for mistrial based upon inadmissible other crimes evidence in the State's opening statement and its solicitation of bad character testimony in its case in chief. The court found the State's reference to defendant's drug use in opening argument was in violation of La. C. Cr. P. art. 770 (2), and a witness's later reference to the defendant's drug use violated La. C.E. art. 404. However, the court found that neither of the objectionable remarks prejudiced the defendant so as to deprive him of any reasonable expectation of a fair trial. The defendant testified and confirmed that he smoked marijuana. Given the defendant's admission, and the overwhelming evidence of his guilt, the court found it highly unlikely that the other crimes comment and testimony played a part in the defendant's conviction.

Here, unlike in Coleman, in its opening statements, the State referred to defendant's admission that he was a "sex addict," not to any illegal activity that would be classified as other crimes evidence. Further, the alleged character evidence was not provided through testimony by a State witness but by admissions of defendant to the police in response to his daughter's allegations of sexual abuse. Defendant's statements explaining his self-diagnosed sexual addiction and drinking problem are an explanation as to how defendant may have perpetrated the acts alleged. As the State argued, the statements were introduced to corroborate the victim's statement. Moreover, the reference to the statements in the State's opening statement and the subsequent admission of those statements into evidence did not cause prejudice to defendant. The trial court did not err in denying the motion for mistrial, nor did it err in admitting defendant's statements into evidence.

Errors Patent Discussion

The record was reviewed for errors patent, according to the mandates of La. C.Cr.P. art. 920 ; State v. Oliveaux, 312 So.2d 337 (La. 1975) ; and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The following errors patent require corrective action.

Defendant's sentence on count two is illegally lenient. On count two, defendant was convicted of attempted aggravated incest and was sentenced to forty-nine and one-half years imprisonment at hard labor. La. R.S. 14:78.1 D(2) provided:

Whoever commits the crime of aggravated incest on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

Further, La. R.S. 14:27 D(3) provided that for an attempt, a defendant

shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

Defendant's sentence was not imposed with restriction of benefits. The trial court did not mandate the length of time that defendant must serve without benefit of parole, probation, or suspension of sentence as mandated by La. R.S. 14:78.1 and La. R.S. 14:27. Because the language of the sentencing provision gives the trial court discretion in determining the exact length of time that benefits are to be restricted, we remand this matter for resentencing to impose at least twenty-five years of the sentence without benefits. See State v. Wilt, 14-823 (La. App. 5 Cir. 04/29/15), 170 So.3d 317, 327, writ denied, 15-1055 (La. 05/02/16), 206 So.3d 877.

Also, the record does not reflect that the trial court complied with La. R.S.14:78.1 E when sentencing this defendant for attempted aggravated incest. That statute provided as follows:

(1) In addition to any sentence imposed under Subsection D, the court shall, after determining the financial resources and future ability of the offender to pay, require the offender, if able, to pay the victim's reasonable costs of counseling that result from the offense . [Emphasis added.]

The record does not reflect that the trial court complied with this statute. Failure to comply with La. R.S. 14:78.1 E warrants a remand to ensure compliance with the statute. See State v. Perkins, 11-255 (La. App. 5 Cir. 11/29/11), 78 So.3d 860, 864 ; State v. Morgan, 06-529 (La. App. 5 Cir. 12/12/06), 948 So.2d 199, 214-15. Therefore, the matter is remanded for compliance with La. R.S.14:78.1 E.

Conclusion

For the reasons stated above, defendant's convictions and sentence on count one are affirmed and his sentence on count two is vacated and remanded for resentencing.

CONVICTIONS AND SENTENCE ON COUNT ONE AFFIRMED; SENTENCE ON COUNT TWO VACATED; REMANDED FOR RESENTENCING ON COUNT TWO

      The initials of the victim and those of certain family members are used under the authority of La. R.S. 46:1844 W(3), which allows the court to identify a crime victim who is a minor or a victim of a sex offense by using his or her initials. State v. Greene, 06-667 (La. App. 5 Cir. 01/30/07), 951 So.2d 1226, 1239, writ denied, 07-546 (La. 10/26/07), 966 So.2d 571.

      La. R.S. 14:42 was subsequently amended in 2015 by Act No. 184, to rename the offense from aggravated rape to first degree rape.

      Aggravated incest was redesignated by Acts 2014, No. 602, § 7 as aggravated crime against nature, La. R.S. 14:89.1.

      The indictment was amended twice, once on July 10, 2013, where the initials of the victim were changed, and again on January 14, 2014, where the date of the offense was amended and defendant's middle name was added to the indictment. On both occasions, defense counsel waived a formal reading of the amended indictment and entered a plea of not guilty to the charges.

      Although the minute entry reflects that the trial court ordered defendant's sentence on count two to be served with the Department of Corrections, the transcript reflects that the trial court did not state that the sentence was to be served with the Department of Corrections or at hard labor. Generally, when the transcript and commitment are inconsistent, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Nevertheless, because the underlying statute, La. R.S. 14:78.1, requires that the sentence be served at hard labor, allowing no discretion to the trial judge, the error is harmless and requires no corrective action. See State v. Tillery, 14-429 (La. App. 5 Cir. 12/16/14), 167 So.3d 15, 29, writ denied, 15-106 (La. 11/06/15), 180 So.3d 306.

      L.B. stated that when she said her "private," she was referring to her "tu-tu" and not her "butt."

      While defendant denied that he had pornography on his phone in his statement to police, a forensic exam was done of the phone seized from defendant's vehicle pursuant to the search warrant, which revealed a web history containing pornographic sites as well as local files that were pornographic videos.

      When the search of the trailer was executed on March 2, 2012, detectives located a "half empty, apple-scented Palmolive green... dishwashing soap" under the sink. Sergeant Richard Dubus, who executed the warrant, explained that when he found the soap bottle he noticed hair follicles on the top of the container. These hair follicles were sent to the crime lab for analysis; however, because the root of the hair, which contains the epithelial cells, was not present, DNA analysis could not be performed

      The trial court again stated that it thought defendant was objecting to the State alluding to defendant's statements in opening statements, but defense counsel stated, "No. Not at all." Defendant was asked a third time if he objected to the State alluding to defendant's statements in opening statements and defense counsel again replied, "No."

      The Louisiana Supreme Court held that if the defense has prior notice of the State's intent to introduce a statement and the statement is properly admitted later, the State's premature mention of the statement in its opening statement to the jury causes no prejudice.

      Intra-juror communications prior to deliberation violated the trial court's instructions, but did not amount to "outside influences" or "extraneous prejudicial information."

      Defendant is not arguing that the State improperly referenced other crimes evidence or that his statement referenced other crimes evidence, in violation of La. C.E. art. 404 B.

      On count two, defendant was sentenced under La. R.S. 14:78.1 D(2), which provides for a harsher penalty when the victim is under the age of thirteen. While the indictment did not specifically list the victim's birthdate or allege she was under the age of thirteen in count two, count one, charging defendant with aggravated rape, specifically alleged the victim was under thirteen. The two crimes were perpetrated on the same date ranges on the same victim. Moreover, defendant was well-informed of the fact that the State intended to prove that the victim was below thirteen years of age as a result of the jury instructions. The jury instructions provided the applicable penalty for attempted aggravated incest as "not less than twenty-five years nor more than forty-nine and a half years." Additionally, the evidence presented at trial demonstrated that L.B. was under the age of thirteen at the time of the offenses. She testified she was ten years old at the time of trial.

      Although these cases deal with aggravated incest and not attempted aggravated incest, La. R.S. 14:27 requires that defendant shall be fined or imprisoned or both, in the same manner as for the offense attempted; this additional sentencing requirement applies in this case.