author: CHUTZ, J. McDONALD, J.,

text:
    James Austin RITCHEY v. STATE FARM MUTUAL AUTOMOTIVE INSURANCE COMPANY and Dawn Bonvillain
    2017 CA 0233
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 15, 2017

      David Christopher Whitmore, Lawrence Blake Jones, Stephen Francis Armbruster, New Orleans, Louisiana, Counsel for Plaintiff-Appellant, James A. Ritchey
    John T. Roethele, Megan E. Perkins, Denham Springs, Louisiana, Coünsel for Defendants-Appellees, State Farm Mutual Automotive, Insurance Company and Dawn Bonvillain
    BEFORE: WHIPPLE, C.J., McDonald and chutz, jj.
   CHUTZ, J.

12This -is an appeal from a summary judgment dismissing plaintiff-appellant, James A. Ritchey’s (Mr. Ritchey), personal injury suit against defendants-appellees, State Farm Mutual Automobile Insurance Company (State Farm) and Dawn Bonvil-lain (Ms. Bonvillain). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This litigation arises from a vehicular accident that occurred at the intersection of Farrel and Kaliste Saloom Roads in Lafayette, Louisiana. Shortly before 12:36 p.m. on November 27, 2013, Mr. Ritchey was traveling west on Farrel Road, which is controlled by a stop sign at‘its intersection with Kaliste Saloom. When he stopped at the stop sign, the traffic at the intersect tion was congested, with multiple cars in the left-turn lane on Kaliste Saloom waiting to turn onto. Farrel Road. Mr. Ritchey intended to go straight across Kaliste Sa-loom and continue west on Farrel Road. He proceeded into the intersection when the driver of the first vehicle in the left-turn lane on Kaliste Saloom “waved him out.” Mr. Ritchey was unfamiliar with the intersection and did not realize there was a traffic lane to. the right of the left-turn lane. He did not see Ms. Bonvillain’s vehicle prior to the collision.

At approximately the same time, Ms. Bonvillain was proceeding southbound on Kaliste Saloom, which was the favored roadway, at an estimated speed of 25-35 m,p.h. There was no traffic control device on Kaliste Saloom at its intersection with Farrel Road. Ms. Bonvillain was driving a vehicle owned by .her employer, State Farm, and was returning to work after lunch. As she approached the intersection, she first saw Mr. Ritchey’s vehicle as it emerged from in front of the vehicles waiting in the-left-turn lane and-entered her lane of traffic from the left. At that point, she was approximately half-way past the first vehicle in the turn-lane. According to her deposition testimony, she quickly applied her brakes, butRwas unable to avoid colliding with the rear, passenger-side of Mr. Ritchey’s vehicle.

Ms. Bonvillain placed a 9Í1 call at 12:36 p.m., immediately after the aecident. Both Mr. Ritchey and Ms. Bonvillain indicated to the responding police officer that they were not injured. The officer issued a traffic citation to Mr. Ritchey for failure to yield the right-of-way at an intersection controlled by a stop sign. Mr. Ritchey testified in his deposition that Ms. Bonvil-lain was present on the scheduled court date for his ticket, and he assumed she spoke to the prosecutor on his behalf since the charge was dropped. Ms. Bonvillain was not issued a traffic citation.

Mr. Ritchey thereafter filed this personal injury suit in the 19th Judicial District Court against State Farm and Ms. Bonvil-lain seeking to recover personal injury and property damages. In his petition, Mr. Rit-chey alleged Ms. Bonvillain was negligent in “driving in a reckless and careless manner, failing to see what she should have seen, failing to' maintain proper control and lookout, failing to apply brakes or take evasive action to avoid a collision when she had the last clear chance, [and] failing to act as a reasonable and prudent person under the circumstances.”

After answering the petition, defendants filed a motion for summary judgment seeking dismissal of Mr. Ritchey’s claims on the grounds that he would be unable to “meet his burden of proving that Dawn Bonvillain caused or contributed to the accident.” In opposing the motion for summary judgment, Mr. Ritchey argued genuine issues of material fact existed regarding whether Ms. Bonvillain was comparatively at fault for failing to take “reasonable steps” and not exercising “the very slightest of care” in avoiding the accident.

|4Following a hearing, the district court granted defendants’ motion for summary judgment and dismissed Mr. Ritchey’s suit with prejudice. Mr. Ritchey now appeals.

SUMMARY JUDGMENT LAW

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of thé motion for summary judgment, 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. C.C.P. art. 966(A)(3) & (4). On appeal, appellaté courts review the granting or denial of a motion for summary, judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So.3d 1002, 1005-06.

In ruling on a motion for summary judgment, the district court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam); Penn v. CarePoint Partners of Louisiana, L.L.C., 14-1621 (La. App. 1st Cir. 7/30/15), 181 So.3d 26, 30. A fact is material if it potentially ensures- or.precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A-genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. All doubts should be resolved in thé non-moving party’s favor. Hines, 876 So.2d at 765-66. An issue of negligence or comparative fault may be decided on a motion for summary judgment, provided that the evidence leaves no relevant,- genuine issue of fact, and reasonable minds must inevitably conclude that the mover is entitled to judgment based on the facts | ¡¡before the court. See Blacklege v. Font, 06-1092 (La. App. 1st Cir. 3/23/07), 960 So.2d 99, 102; Charles v. Travelers Indemnity Company, 15-0966, p. 5 (La. App. 1st Cir. 5/10/16), 2016 WL 2669821 (unpublished).

The burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). But if the moving party will not bear the burden of proof at trial on the issue before the court on the motion, the moving party’s burden is satisfied by pointing out an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party may not rest on the mere allegations or denials of his pleadings but must produce factual support sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. C.C.P. arts. 966(D)(1) & 967(B); Schultz, 57 So.3d at 1006; Charles, 15-0956 at p. 5.

DISCUSSION

On appeal, Mr. Ritchey contends in two assignments of error that the district court erred in granting defendants’ motion for summary judgment because genuine issues of material fact exist regarding whether Ms. Bonvillain had an opportunity to take reasonable steps to avoid the collision and failed to do so and whether she was on her cell phone at the time of the accident. He argues the district court improperly weighed the evidence and evaluated witness credibility in finding there was “no evidence to show that ... [it] would have made any difference had [Ms. Bonvillain] not been on the phone or that she would have seen him any sooner, given the circumstances of the intersection at the time of the collision.” Mr. Ritchey alleges that even though Ms. Bonvillain had the right-of-way, she had a duty after he entered the intersection to avoid the accident if she had a reasonable opportunity to do so. He maintains there is a genuine issue of material fact concerning whether she had such an opportunity.

| (¡The duty of a motorist approaching an intersection controlled by a stop sign (here, Mr. Ritchey) is set forth in La. R.S. 32:123, as follows:

A. Preferential right of way at an intersection may be indicated by stop signs or yield signs.
B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the crosswalk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right-of-way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard. [Emphasis added.]

The jurisprudence is clear- that stopping is only half of the motorist’s duty. The other half is for him to assess traffic and make certain the way is clear before proceeding. See Toston v. Pardon, 03-1747 (La. 4/23/04), 874 So.2d 791, 802; Irion v. State ex rel. Department of Transportation and Development, 98-2616 (La. App. 1st Cir. 5/12/00), 760 So.2d 1220, 1231, writ denied, 00-2365 (La. 11/13/00), 773 So.2d 727. Moreover, the second duty is heavier and requires an even greater degree of care when the intersection is blind, or partially obstructed. A motorist entering a superior highway where: his view is obstructed is under a duty to proceed with extraordinary caution. Toston, 874 So.2d at 802.

Conversely, the duty of the motorist traveling on the favored street (here, Ms. Bonvillain) is minimal. Charles, 15-0956 at p. 6; Gutierrez v. Keller, 12-0987 (La. App. 4th Cir. 1/16/13), 108 So.3d 303, 306. In Sanchez Fernandez v. General Motors Corporation, 491 So.2d 633, 636 (La. 1986), the Louisiana Supreme Court explained this duty, as follows:

A motorist on a right of way street is entitled to assume that motorists on the unfavored street approaching a stop sign will obey the traffic signal and will stop, look and yield the right of way to traffic proceeding on the favored street. Of course, once a right of way motorist in the exercise of ordinary [vigilance] sees that another motorist has failed to yield the right of way, a new duty thereafter 17devolves on the right of way motorist to take reasonable steps to avoid an accident if there is enough time to afford him a reasonable opportunity to do so. [Citation and footnote omitted.]

The motorist on the favored roadway will be considered negligent only in exceptional cases where he could have avoided the accident by the- exercise of the slightest degree of care. Charles, 15-0956 at p. 6; McElroy v. Wilhite, 39,393 (La. App. 2d Cir. 5/18/05), 903 So.2d 627, 631.

In the instant case, the basis of defendants’ motion for summary judgment is their contention that Mr. Ritchey would be unable to meet his burden of proving at trial that Ms. Bonvillain caused or contributed to the accident at issue. In support of their motion, defendants introduced the depositions of Mr. Ritchey and Ms. Bonvil-lain, the affidavits of Ms. Bonvillain and the responding police officér, and Ms. Bom villain’s certified cell phone records. In his affidavit, the responding police officer indicated Ms. Bonvillain had the right-of-way at the time-of the accident since Farrel Road was governed by a stop sign while there was no stop sign or traffic control signal on Kaliste Saloom. He further stated no one advised him during the course of his investigation that Ms. Bonvillain was using a cell .phone at the time of the accident.

In both her deposition and affidavit, Ms. Bonvillain indicated that as she approached the intersection in question, driving approximately 25-35 m.p.h.,' Mr. Rit-chey’s vehicle suddenly appeared in her lane of traffic from the left. Ms. Bonvillain indicated she was only a short distance away, approximately half-way past the first vehicle in the left-turn lane, when she initially saw Mr. Ritchey’s'vehicle: She testified she “quickly” applied her brakes but was unable to avoid a collision with the rear portion of Mr. Ritchey’s vehicle. According to Ms. Bonvillain, she had no recollection of hearing any sounds as she applied her brakes. She denied being distracted or- talking, texting,' or • otherwise using her cell phone at the time of the accident.

|sThe cell phone records presented by defendants reflect the last call made or received on Ms. Bonvillain’s cell phone pri- or to the accident was a brief call she received over twenty-five minutes prior to the 911 call. The last text message on her cell phone prior to the accident was an incoming text received approximately seven minutes before the 911 call.

In opposition to defendants’ motion for summary judgment, Mr. Ritchey argued summary judgment was improper because genuine issues of'material fact existed regarding Ms. Bonvillain’s comparative fault. Specifically, he alleged there was a genuine issue of fact as to whether she was partially at fault in causing the accident by failing to take reasonable steps and exercising. the slightest of care to avoid the accident. He -further alleged the conflict between his assertion that Ms. Bonvillain told him she was on the phone at the time of -the accident and her • denial. of that allegation created another genuine issue of material fact. In support -of his opposition, he introduced excerpts from his deposition and the accident report prepared by the responding officer.

■We will first consider- whether-an issue of material fact exists with, respect to whether Ms. Bonvillain was “on the phone” at the time of the accident because that issue could potentially impact Mr. Rit-chey’s broader assertion that Ms. Bonvil-lain was distracted and failed to exercise the slightest degree of care in avoiding the accident. .Mr. Ritchey’s assertions regarding Ms. Bonvillain’s purported .cell phone usage is based on his deposition testimony stating that Ms. Bonvillain told him at the scene of the accident that “she was on the telephone whenever the accident . occurred.” Because Ms. Bonvillain denied making such a statement, Mr. Ritchey argues a genuine issue of material fact exists regarding this issue, despite the cell phone records defendants introduced revealing no phone calls were made or received by Ms. Bonvillain for' over twenty-five minutes prior to the'accident. Mr. |flRifchey points out that cell phones can be used for a variety of purposes other than phone calls, including checking emails or reading a text message.

Based on our de novo review of the evidence introduced in conjunction. with the motion for summary judgment,- we find no merit in Mr. Ritchey’s contentions. Mr. Ritchey testified Ms. Bonvillain told him she was'on her cell-phone at the time of the accident and she denied doing so. Irrespective of this conflict, defendants presented evidence in the form of Ms. Bonvil-lain’s cell- phoné records showing that Mr. Ritchey would be unable'to prove at trial that Ms. Bonvillain was talking on her cell phone at the time of the accident. These records establish that her last call prior to the accident ended over twenty-five minutes before she placed the 911 cal! immediately after the accident.

"Nevertheless, Mr, Ritchey argues Ms. Bonvillain’á cell phone records do not 'exclude the' possibility she’ was “on the phone” doing something other than talking since cell phones can be used for a variety of purposes. The’flaw in this argument is that the contention that Ms. Bonvillain was using her cell phone for some purpose other than talking is inconsistent 'with the totality of Mr. Ritchey’s deposition testimony. in his- deposition, Mr. Ritchey initially made the broad statement that Ms. Bonvillain told him she was-“on the telephone” when the accident occurred. However, when defense counsel later asked Mr. Ritchey who Ms. Bonvillain was “talking to,” he'replied, “She said the client that she was going to see.” Thus, the import of Mr. Ritchey’s overall testimony was not merely that Ms. Bonvillain was “on the phone,” which could encompass usage such as reading emails or texts, but specifically that'she was “talking” on her cell phone. Further, after defendants introduced- the cell phone records establishing Ms. Bonvil-lain was not talking on her cell phone at the time of the accident, Mr. Ritchey failed to come forward with factual support showing he would be able to prove at trial that Ms. Bonvillain was using her .cell phone in some other manner-when the accicjent | inoccurred. Accordingly, no genuine issue of material fact exists concerning Ms. Bonvillain’s cell phone usage at the time of the accident.

We also find no merit in Mr. Rit-chey’s argument that a genuine issue of fact exists as to whether Ms, Bonvillain took reasonable steps and exercised the slightest degree of care in attempting to avoid the accident. In making this argument, Mr, Ritchey relies heavily on- the fact that his vehicle almost cleared the intersection before it was struck on the right rear quarter panel by Ms. Bonvil-lain’s vehicle. Mr. Ritchey also places emphasis on his deposition testimony that he did not hear “any screeching tires or anything” prior to the impact. Although not clearly articulated, Mr, Ritchey seems to be arguing there is a conflict between Ms. Bonvillain’s testimony that she was not distracted and applied her brakes quickly as soon as she saw his vehicle enter her lane of traffic and his testimony that he “did not hear any indication that [Ms. Bon-villain] attempted to avoid the accident,” combined with the fact that he almost cleared the intersection before his vehicle was struck.

Contrary to Mr. Ritchey’s assertions, we And no conflict or inconsistency between Mr. Ritchey’s testimony that he did not hear screeching tires or brakes and Ms. Bonvillain’s testimony that she was not distracted and applied her brakes as soon as she saw Mr. Ritchey’s vehicle entering her traffic lane. Like Mr. Ritchey, Ms. Bonvillain also testified that she did not hear any sounds when she applied her brakes. Nor did Mr. Ritchey present any evidence indicating that under the circumstances present, including the fact that Ms. Bonvillain was travelling at only 25-35 m,p.h., the sound of screeching tires or any other sound should have been audible to either him or Ms. Bonvillain when she applied her brakes.

Further, the fact that Mr. Ritchey’s vehicle had almost cleared the intersection at the time of impact in no way conflicts with Ms. Bonvillain’s account of the accident. Her uncontradicted testimony was that there was only a Inshort distance existing between her vehicle and that of Mr. Rit-chey’s when he unexpectedly entered her lane of traffic. She testified further that she quickly applied her vehicle’s brakes when she saw Mr. Ritchey’s vehicle, but she was unable to avoid the collision. Thus, her testimony indicates the accident was unavoidable , on her part. This evidence shifted the burden of proof to Mr. Ritchey to produce factual support to shqw he would be able to satisfy his burden of proving at trial that Ms. Bonvillain, who had the right-of-way in this instance, failed to take reasonable steps or to exercise the slightest degree of care to avoid the accident. See La. C.C.P. art., 966D(1). Mr. Ritchey failed to come forward with any such evidence.

When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials' of his pleadings, but his response, by affidavits or as otherwise provided in La. C.C.P. art. 967 must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). Mere conclüsory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Charles, 15-0956 at p. 5; Scott v. City of Shreveport, 49,944 (La. App. 2d Cir. 6/24/15), 169 So.3d 770, 773, writ denied, 15-1438 (La. 10/9/15), 186 So.3d 1149; see also Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 755 (conclusory allegations are insufficient to withstand summary judgment). In the instant case, Mr. Ritchey’s contention that a genuine issue of fact exists regarding Ms. Bonvillain’s comparative fault is based on conclusory allegations and unsupported speculation that she failed to take advantage. of an opportunity to avoid the accident because she was distracted. The evidence • introduced in conjunction with the motion for summary judgment reflects an absence of factual support for the essential element of Mr. Ritchey’s claim against defendants that Ms. Bonvillain was at least partially at fault in causing the accident.

I ^CONCLUSION

For-the reasons assigned, the judgment of the district court granting summary judgment in favor or defendants dismissing Mr. Ritchey’s suit with prejudice is affirmed. All costs of this appeal are to be paid by Mr. ,Ritchey.

AFFIRMED.

McDonald J. assigns additional reasons.

McDONALD, J.,

agrees and assigns additional reasons.

l.fl agree with and join in the majority opinion. However, I take this opportunity to express additional reasons. It is hard for me to understand how this lawsuit got filed in the first place. I could possibly understand how Ms. Bonvillain could have filed -suit since she was the victim of the negligence of Mr. Ritchey. However, as stated by a local Baton Rouge attorney’s television commercial, she became a victim twice. She was a victim of the.accident and then of this lawsuit.

• Mr. Ritchey attempted to cross the intersection when his vision was obstructed by the left turning motorist. He was unable to see Ms. Bonvillain but claims she should have seen him. She was traveling in the through lane of traffic when Mr. Rit-chey’s vehicle-suddenly appeared from-in front of the left turning vehicle. Mr. Rit-chey suggests he never heard any screeching tires or brake noise. Of course he didn’t, because he drove out in front of Ms. Bonvillain and she did not have time to react. She was traveling between 25 mph and 35 mph. At 30 mph she was |2traveling about 44 feet per second. While there is nothing in the record as to the reaction time for her to see Mr. Ritchey’s vehicle and apply her brakes, it certainly could not have been instantaneous. She probably hit him before she even had an opportunity to apply her brakes.

Mr, Ritchey suggests he had entered the intersection and had pre-empted it citing Fernandez v. Gen. Motors Corp., 491 So.2d 633 (La. 1986). While this is a correct statement of the law, it only applies in situations where it is apparent that a vehicle has entered and pre-empted the intersection. Mr. Ritchey’s testimony contradicts any application of this theory. How could he pre-empt an intersection if Ms. Bonvillain did not know he was there. He states that he could not see her because his vision was blocked by the turning vehicle. If he could not see her, then she also could not see him.

I do not believe this suit ever had any merit. I commend the trial court for granting the-motion for summary judgment and my colleagues for voting to affirm it.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Marlon EAGLIN v. EUNICE POLICE DEPARTMENT, et al.
    17-127
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017

      Harold Dewey Register, Jr., 216 Rue Louis XIV, Lafayette, LA 70598-0214, Telephone: (337) 981-6644, COUNSEL FOR: Plaintiff/Appellant—Paul Powell
    Taylor Stover, Borne, Wilkes & Raba-lais, L.L.C., P. O. Box 4305, Lafayette, LA 70502-4305, Telephone: (337) 232-1604, COUNSEL FOR: Defendants/Appellees— City of Eunice, Eunice Police Department, and Chief Randy Fontenot
    Court, composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   THIBODEAUX, Chief Judge.

|! Marlon Eaglin filed a petition against the Eunice Police Department, the City of Eunice, and Chief Randy Fontenot,, in his official capacity as chief of police for the City of Eunice (defendants), seeking damages for his ciatos of false arrest and false imprisonment. When Mr. Eaglin attempted to amend his petition to add Paul Powell as a party plaintiff, the defendants filed a peremptory exception of prescription, alleging Mr, Powell’s claims of falsé arrest and false imprisonment had prescribed on the face of the amended petition. Mr. Powell now appeals the trial court’s judgment, which granted the exception and dismissed his claims with prejudice. We '.reverse the judgment of the trial court and conclude that prescription on a claim of false imprisonment begins to run on the date of release from imprisonment.

I.

ISSUES

The court must decide:

(1) whether the trial court erred in granting the defendants’ exception of prescription based on its finding that the prescriptive period for a claim of false imprisonment begins to run on the date of arrest and not on the date of release; and •
(2) whether the trial court erred in finding the amended petition did not relate back to the date of filing of the original petition.

JiL

Pacts and procedural HISTORY

This civil matter arises out of attempted murder charges brought against Mr. Eag-lin, Mr. Powell, and two other suspects, Deontrey Moten and David Little, by the Eunice Police Department. Neither Mr. Eaglin nor, Mr. Powell was identified as perpetrators of the alleged crime by either the victim or the victim’s girlfriend, who witnessed the shooting. They were, however, implicated as participants to the alleged shooting by Mr. Moten and Mr. Little. All suspects, including Mr. Eaglin and Mr. Powell, were then arrested on May 4, 2015, pursuant to arrest warrants and remained imprisoned until August 21,2015.

On April 29, 2016, Mr. Eaglin filéd a petition for damages against the defendants, raising claims of false arrest and false imprisonment. He subsequently filed an amended petition on May 9, 2016, in which he attempted to bring Mr, Powell into the suit as an additional party plaintiff advancing • similar' claims for false arrest and false imprisonment against the defendants arising from the same attempted murder charges. In response, the defendants filed, inter alia, an exception of prescription, claiming Mr. Powell’s claims prescribed on May 4, 2016, one year after the date of his arrest. Mr¡ Powell opposed the exception by arguing that the amended petition related back to Mr. Eaglin’s original, timely-filed petition and that his claim - for false imprisonment had not prescribed as prescription did not commence to run until the date he was released from prison.

The trial court granted the defendants’ exception of prescription, finding (1) the amendment did not relate back as “there is no legal relationship or | «family relationship between Powell and Eaglin to allow the relating back,” and .(2) the running of prescription on a claim for false imprisonment begins on the date of arrest and not on the date of release. Accordingly, the trial court dismissed Mr. Powell’s claims ■with prejudice,

III.

STANDARDS OF REVIEW

A peremptory exception of prescription must be specially pleaded and must ordinarily, be proven by the exceptor at trial bn the exception. La.Code Civ.P. art. 927(B); Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d 502. However, if prescription is- evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Campo, 828 So.2d 502. Evidence may be introduced to support or controvert the objection, but in the absence of such evidence, the objection must be decided upon the facts alleged in the petition, .with all allegations accepted as true. La.Code Civ.P. art. 931; Cichirillo v. Avondale Indus., Inc., 04-2894, 04-2918 (La. 11/29/05), 917 So.2d 424. If evidence is introduced at the hearing, the trial court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). However, when the trial court is not called upon to exercise its fact-finding function and the matter involves the determination of purely legal issues, reviewing courts apply a de novo standard of review. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

JáJV.

LAW AND DISCUSSION

The correct prescriptive period to be applied in any action depends upon the nature of the action itself. Roger v. Dufrene, 613 So.2d 947 (La.1993). Under our default provision, personal actions are “subject to a liberative prescription of ten years,” unless otherwise provided by law. La.Civ.Code art. 3499. Delictual actions are subject to a one-year prescriptive period which “commences to run from the day of injury or damage is sustained.” La.Civ. Code art. 3492.

“The fundamental purpose of prescription statutes is only to afford a defendant economic and psychological security if no claim'is made timely, and to protect him from stale claims and from the loss of non-presérvation of relevant proof.” Giroir v. S. La. Med. Ctr., Div. of Hosps., 475 So.2d 1040, 1045 (La.1985). Nevertheless, jurisprudence has long required strict construction of prescriptive periods in favor of maintaining, rather than barring, a plaintiffs cause of action because liberative prescription extinguishes a person’s right to assert his action merely upon the passage of time. Williams v. Jackson Parish Hosp., 00-3170 (La. 10/16/01), 798 So.2d 921; La.Civ.Code art. 3447.

Citing jurisprudence from both the supreme court and this court, Mr. Powell first argues that the trial court erred in finding prescription on his claim for false imprisonment began to accrue on the date of arrest. After extensively- researching this issue, we agree.

In De Bouchel v. Koss Const. Co., Inc., 177 La. 841, 847, 149 So. 496, 497 (1933), our supreme court held that the plaintiffs cause of action for false imprisonment arose “the day on which plaintiff was both falsely ^imprisoned and then released from prison” and was subject to liberative prescription of one year. Applying the De Bouchel holding, this court in Murray v. Town of Mansura, 06-355, p. 7 (La.App. 3 Cir. 9/27/06), 940 So.2d 832, 838, writ denied, 06-2949 (La. 2/16/07), 949 So.2d 419, cert. denied, 552 U.S. 915, 128 S.Ct. 270, 169 L.Ed.2d 197 (2007), then found the prescriptive period for a claim of false arrest and imprisonment begins to accrue on the date of release:

a claim for false arrest and imprisonment arises the day -the false arrest and imprisonment occurs. In De Bouchel, 177 La. 841, 149 So. 496, the plaintiff asserted claims for false imprisonment and malicious prosecution. The supreme court held that the false imprisonment cause of action, which includes a claim of false arrest, arose on the day the plaintiff was imprisoned and that the cause of action was subject to a one year prescriptive period. Prescription on such a claim begins to run no later than the date on which the imprisonment is terminated. Id. Thus, prescription on Plaintiffs’ false arrest and imprisonment claim began accruing no later than March 22, 1999, the date Mr. Murray was released from jail.

Even more recently, this court in Godfrey v. Reggie, 11-1575, p. 8 (La.App. 3 Cir. 5/2/12), 94 So.3d 82, 89 (quoting Matthews v. City of Bossier City, 42,202 (La.App. 2 Cir. 8/15/07), 963 So.2d 516), again recited both the day of imprisonment as well as the day of release for the commencement of prescription in holding: “A cause of action ‘for false imprisonment, which includes a claim for false arrest, arises on the day upon which the plaintiff is imprisoned and released.’ ”

The Supreme Court explained the reasoning behind this “distinctive rule” that recognizes that, while a cause of action for false arrest and imprisonment may arise on the day of arrest and confinement, prescription does not commence until the day of release, in Wallace v. Koto, 549 U.S. 384, 388-89, 127 S.Ct. 1091, 1095-96, 166 L.Ed.2d 973 (2007) (citations omitted) (first alteration in original):

| nit is “the standard rule that [accrual occurs] when the plaintiff has ‘a complete and present cause of action,’ ” that is, when “the plaintiff can file suit and obtain relief.” There cari be no dispute that petitioner could have filed suit as soon as the allegedly wrongful arrest occurred, subjecting him to the harm of involuntary detention, so the statute of limitations would normally commence to run from that date.
There is, however, a refinement to be considered, arising from the common law’s distinctive treatment of the torts of false arrest and false imprisonment.... False arrest and false imprisonment overlap; the former is a species of the latter. “Every confinement of the person is an imprisonment, whether it be in a common prison or in a private house, or in the stocks, or even by forcibly detaining one in the public streets; and when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is.” We shall thus refer to the two torts together as false imprisonment. ...
The running of the statute of limitations on false imprisonment is subject to a distinctive rule—dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned: “Limitations begin to run against an action for false imprisonment when the alleged false imprisonment ends.” Thus, to determine the beginning of the limitations period in this case, we must determine when petitioner’s false imprisonment came to an end.

As evidenced in Wallace and acknowledged by our courts in De Bouchel, Murray, and Godfrey, claims for false arrest and false imprisonment, when incidental to each other, are often referred to and treated as a single claim for prescriptive purposes. And although damage is sustained on the date of arrest and imprisonment, prescription on such claims does not commence until the imprisonment ends most likely due to the reality that the tort victim may not be able to sue while he is still imprisoned. In this manner, De Bouchel and its progeny, Murray and Godfrey, align -with the reasoning in Wallace.

|7Pursuant thereto, a cause of action for false imprisonment, which includes a claim for false arrest, does not begin to accrue until the date of release. It follows, therefore, that prescription on Mr. Powell’s claim for false arrest and imprisonment did not commence until the date of his release, August 21, 2015, and did not toll until August 21, 2016, one year later. Accordingly, we find his claim for false arrest and imprisonment, filed on May 9, 2016, was timely, and we reverse the trial court’s judgment holding to the contrary.

V.

CONCLUSION

For these reasons, we find the trial court erred in granting the defendants’ exception of prescription. We reverse the trial court’s judgment and remand for consideration of the defendants’ remaining exceptions.

Costs of this appeal are assessed to the Defendants/Appellees.

REVERSED AND REMANDED.

      . In their answer, the defendants raised the exceptions of (1) lack of personal and subject matter jurisdiction; (2) lack of conformity; (3) vagueness and ambiguity; (4) lack of procedural capacity; (5) improper cumulation of ‘ actions; (6) no cause of action; and (7) no right of action.

      . Both the defendants and the trial court relied upon Buvens v. Buvens, 286 So.2d 144 (La.App. 3 Cir. 1973), in which a panel of this court found the prescriptive period on the plaintiffs false imprisonment claim commenced on the date of arrest. Our review of the jurisprudence reveals, however, that Bu-vens is an anomaly that does not follow along the De Bouchel continuum and cannot be reconciled with the predominant and more recent jurisprudence from this circuit. Therefore, we refuse to follow and expressly disavow it.

      . Finding that Mr. Powell's claim for false arrest and imprisonment was timely filed, we need not determine whether the amended petition relates back to the date of filing of the original petition and pretermit any further discussion of this issue.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Sharon M. SYLVESTER v. The CITY OF NEW ORLEANS THROUGH the CODE ENFORCEMENT AND HEARINGS BUREAU
    NO. 2017-CA-0283
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 11, 2017
    Rehearing Denied October 20, 2017

      SHARON M. SYLVESTER, 3627 Touro Street, New Orleans, Louisiana '70122, Plaintiff/Appellant/ In Proper Person
    SHAWN LINDSAY, DEPUTY CITY ATTORNEY, JOYCE G. JOSEPH, DEPUTY CITY ATTORNEY, ADAM J. SWENSEK, DEPUTY CITY ATTORNEY, REBECCA H. DIETZ, CITY ATTORNEY’S OFFICE, CITY OF NEW ORLEANS, 1300 Perdido Street, Room 5E03, New Orleans, • Louisiana 70112, Counsel for Defendant/Appellee
    (Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano)
   JAMES F. MCKAY III, CHIEF JUDGE

| iThis. appeal stems from the November 2, 2015 administrative decision rendered against plaintiff, Sharon Sylvester (“Ms. Sylvester”), by the City of New Orleans Code Enforcement and Hearing Bureau (“City”), Ms. Sylvester appeals the trial court’s November 14, 2016 judgment, denying her petition for judicial review and affirming the City’s administrative decision. For the reasons set forth below, we affirm,

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On January 28, 2015, the City inspected property located at 1212-14 South Rampart Street in New- Orleans. Nine code violations were documented, as follows: 1) Sanitation; 2) Weeds; 3) Fences and Walls and Plant Growth; 4) Paint or Protective Treatment; 5) Exterior Surfaces; 6) Studs; 7) Weatherboards; 8) Roofs; and 9) Decorative Features.

Notice of the code violations and the hearing set for July 21, 2015 was sent to Ms. Sylvester, the. owner of record. A second inspection on July 13, 2015 noted that the nine code violations persisted. Notice was posted at the property.

I the July 21, 2015 hearing, Attorney Ernest Jones (“Mr. Jones”) appeared and informed the hearing officer that he represented Ms. Sylvester in the succession of her laté husband, Anthony Sylvester (“Mr. Sylvester”). He indicated that the ownership of 1212-14 South Rampart Street was an issue on appeal in Mr. Sylvester’s succession. The administrative hearing was continued to August 17, 2015.'

■ A third inspection was performed on August 7, 2015. The same nine code violations were documented, and notice was posted at the property.

After another continuance requested.by Mr. Jones, the matter was continued to November 2, 2015. The property was inspected for a fourth time on October 22, 2015Í The-same nine code violations were identified, and notice was posted.

Ms, Sylvester appeared at-the November 2, 2015 hearing with her son, Carl Gabriel. Mr. Jones was not present. Ms. Sylvester acknowledged that she owned the property. She also acknowledged that photographs taken in- connection with the inspections accurately represented the condition of the property. Mr. Gabriel, spoke on behalf of his mother. He asserted that due to questions surrounding Ms. Sylvester’s ownership of the property, which were still on appeal, and because Mr. Sylvester’s first wife, Mrs. Joyce Sylvester (“Joyce”), was the executrix of the succession, that Ms. Sylvester was not responsible for making the repairs. Ms. Sylvester maintained that the repairs, were Joyce’s responsibility. ■

The hearing officer rejected Ms. Sylvester’s argument that she was not the person responsible for maintaining the property. Fines and fees in the amount of |a$1625.00 were assessed against Ms. Sylvester. From this ruling, Ms. Sylvester filed a petition for judicial review in the Civil District Court for the Parish of Orleans.

Oral arguments were presented to the district court on October 21, 2015, and the matter was taken under advisement. Judgment was rendered in favor of the City on November 14, 2016, finding that Ms. Sylvester was both the owner of 1212-14 Sóuth Rampart Street and the person responsible for its maintenance. Ms. Sylvester’s pro se appeal followed.

LAW AND ANALYSIS

La. R.S. 13:2575 provides7 municipalities with authority to enact ordinances relative to public health, housing, and environmental violations. Section H provides that “[a]ny property owner or mortgagee of record of property determined to be blighted or abandoned property, or any person determined by the hearing officer to be in violation' of a public health, housing, fire code, environmental, or historic district ordinance may appeal this determination to . the appropriate district court.” The statute, however, is silent on the applicable standard of review. Thus, as this Court stated in DMK Acquisitions & Properties, LLC v. City of New Orleans, 2013-0405, p. 8 (La. App. 4 Cir. 9/18/13), 124 So.3d 1157, 1163, the general provisions. of the Administrative Procedure Act (“APA”) apply.

. This Court recently summarized the standard of review under the APA in Clark v. Louisiana State Racing Comm’n, 2012-1049 (La. App. 4 Cir. 12/12/12), 104 So.3d 820, as follows:

A party aggrieved by a final agency decision in an adjudication proceeding is entitled to have that decision reviewed initially by the district court of the parish in which the agency is located. La. R.S. |449:964(A)(1) and (B). The district court acts in the capacity of an intermediate appellate court. A party aggrieved by the district court’s decision is entitled to appeal to the appropriate appellate court as in other' civil cases. La. R.S. 49:965. When an appellate court reviews the district court’s judgment, no deference is owed by the appellate Court to the district court’s fact findings or legal conclusions, “ ‘just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Thus, an appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency and not the decision of the district court.’ ” Bourgeois v. Louisiana State Racing Comm’n, 10-0573, p. 7 (La. App. 4 Cir. 11/12/10), 51 So.3d 851, 856 (quoting Smith v. State, Dep’t of Health and Hospitals, 39,368, pp. 4-5 (La. App. 2d Cir. 3/2/05), 895 So.2d 735, 739).
The standard of appellate review of an administrative agency’s decision is distinct from and narrower than that which applies to ordinary civil and criminal appeals. Reaux v. Louisiana Bd. of Med. Examiners, 02-0906, p. 3 (La. App. 4 Cir. 5/21/03), 850 So.2d 723, 726. The exclusive’grounds upon which an administrative agency’s decision may be reversed or modified on appeal are enumerated in La. R.S. 49:964(G) of the Administrative Procedure Act (“APA”). Armstrong v. Louisiana State Bd. of Medical Examiners, 03-1241, pp. 9-11 (La. App. 4 Cir. 2/18/04), 868 So.2d 830, 837-38.

Clark, 2012-1049, pp. 9-11, 104 So.3d at 826-27.

Defining the scope and standards for judicial review of agency decisions, La. R.S. 49:964(G) provides:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the 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. In the application of this rule, the 15court shall make its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has 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.

In this appeal, Ms. Sylvester argues that the hearing officer and the district court erred when they failed to find that the succession representative (Joyce), who was in possession of the property at the time of the initial notice of violation on January 28, 2015, should be liable for the violations that occurred on that date. Ms. Sylvester points out that the administrative decision rendered against her by the City only references violations that existed on January 28, 2015. However, she maintains that on January 28, 2015, the ownership of the property was in dispute and the subject of a suspensive appeal. We find no merit in this argument.

On August 13, 2014, a Final Partition Judgment was rendered in Mr. Sylvester’s succession proceedings in the 24th Judicial District Court, specifically declaring Ms. Sylvester to be the owner of 1212-14 South Rampart Street. Contrary to Ms. Sylvester’s assertion, that judgment was not appealed. The record reflects that Ms. Sylvester’s petition for appeal only references the July 14, 2014 Amended Judgment, concerning the ownership of other pieces of succession property. Thus, ownership of 2012-14 South Rampart Street was not the subject of a suspensive appeal, nor was it in dispute on January 28, 2015, when Ms.' Sylvester was first cited for the code violations.

At the November 2, 2015 administrative hearing, Ms. Sylvester acknowledged that she was the sole owner of the property. That fact was 1,¡corroborated by the City’s title search. Furthermore, it is undisputed that the property remained in a deteriorated condition from the first inspection conducted on January 28, 2015, through the fourth inspection on October 22, 2015. It is also undisputed that Ms. Sylvester received proper notice of the violations. In sum, we find that the administrative decision and the district court’s judgment are supported by the evidence.

CONCLUSION

For the foregoing reasons, we find no error on the part of the administrative hearing officer in the assessment of fines and fees against Ms. Sylvester. Likewise, we find no error on the part of the district court in affirming that decision. Accordingly, we affirm.

AFFIRMED

      . Succession of Anthony Sylvester, No. 616-471, 24th J.D.C. for the Parish of Jefferson.

      . The City acknowledged that twp violations for overgrown weeds and fences had been abated.


author: JOHNSON, J.

text:
    STATE of Louisiana v. Kenneth WASHINGTON
    NO. 17-KA-16
    Court of Appeal of Louisiana, Fifth Circuit.
    September 26, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF - LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler
    COUNSEL FOR DEFENDANT/APPELLANT, KENNETH WASHINGTON, Stavros Panagou'lopoulos
    Panel composed of Judges Marc E.. Johnson, Robert A. Chaisson, and Jessie M, LeBlanc, Judge Pro Tempore
   JOHNSON, J.

h Defendant appeals his conviction and sentence for aggravated obstruction of a highway of commerce on the basis of insufficient evidence. For the reasons that follow, we affirm.

Defendant, Kenneth Washington, was charged on July 25, 2014 in a bill of information with one count of aggravated obstruction of a highway of commerce in violation of La. R.S. 14:96 (count one) and, one count of resisting a police officer .with the use or threats of violence in violation of La. R.S,. 14:108.2 .(count two). He pled not guilty and proceeded to trial on January 19,2016. After a two-day trial, a six-person jury found him guilty as charged on both counts.

On April 28, 2016, the trial court sentenced Defendant to one year and six months on each count to run concurrently with each, other. On the same date, the State filed a multiple offender bill of information on count one, alleging Defendant to be a third felony offender based on a 2004 conviction for possession of cocaine and a 2011 conviction for aggravated flight from an officer. After a hearing, the trial court adjudicated Defendant a third felony offender, vacated his original sentence on-count one, and resentenced Defendant as a multiple offender under La. R.S. 15:529,1 to .10 years imprisonment at hard labor without benefit of probation or. suspension of sentence. The trial court ordered the enhanced sentence to run concurrently with the previously imposed sentence on count two. Defendant now appeals.

FACTS ■

At approximately 2:30-2:45 p.m. on June 17, 2014, members of the Jefferson Parish Sheriffs Office’s Project STAR team were proactively patrolling lathe Betty Projects area of Marrero, Detective William Whittington was driving an unmarked black Chevrolet Impala, with Detective John Wiebelt in the front passenger seat and Detective Joseph Waguespack in the rear seat, when they observed a grey Acu-ra near the intersection of Second Zion and Lincoln. The "officers observed a black male subject approach the driver’s side of the Acura and reach into the driver’s side window where he remained for ten to twenty seconds. The officers testified that Defendant, who was the driver of the Acu-ra, and the male subject appeared to have exchanged something. Detective Wagues-pack specifically testified that the male subject came out of the car with something in his clenched hand, although he could not identify what it was.

Believing they had just witnessed a hand-to-hand drug transaction, the officers decided to conduct an investigatory stop of the Acura. Detective Whittington radioed Detective Sean Lee, another Project STAR member who was patrolling in the area, for assistance and then activated his lights and sirens to make the stop. As Detective Whittington pulled up behind the Acura, Detective Lee, who was also driving an unmarked black Chevrolet Impala, pulled in front of Defendant’s vehicle, partially blocking the car in an attempt to stop it. Detective Lee testified that he had his lights on but not his siren.

Instead of stopping, Defendant drove quickly around Detective Lee’s unit and drove away, at a speed in excess of 40 mph in a residential area with a posted speed limit of 20 mph. The officers pursued Defendant, who, according to Detective Wag-uespack, took them on a “pretty good little chase” across Ames, a major intersection, into another subdivision on the eastbound side of Ames. The officers continued to follow Defendant with their lights and sirens on trying to initiate a stop. According to the officers, Defendant disregarded several stop signs | ¡¡during the chase, reached speeds of 60-70 mph, swerved off the road and hit a mailbox and garbage can, and drove “with no regard for anybody on the street.” At one point, the officers backed off from Defendant because they noticed he was “getting really reckless” and they feared for the public and themselves. The officers continued to follow Defendant to the 6100 block of August Avenue where Defendant had stopped his vehicle in the middle of the street, blocking the westbound lane of traffic.

Detective Wiebelt testified that by the time they caught up to Defendant, he had exited his car. Detective Wiebelt explained that Defendant started screaming and running at an angle towards the officers with balled up fists. He described Defendant’s actions as aggressive, “like he was going to put. up a fight.” Detective Waguespack made first contact with Defendant and used his body to knock Defendant off balance to get him on the ground, during which time Detective Waguespack also fell to the ground. A struggle ensued in the street with both Defendant and Detective Waguespack rolling around on the street as Detective Waguespack tried to handcuff Defendant as he continued punching and kicking. Several officers arrived on the scene to assist, and pepper spray was .deployed twice in an attempt to subdue Defendant. Defendant was ultimately handcuffed, despite his continued resistance.

When asked why he ran and fought, Defendant responded that he hated the police and would run from them every time he saw them. Although no drugs were found in Defendant’s car, Defendant had $1,800 on his person in denominations that Detective Waguespack stated were consistent with narcotic dealing.

After his arrest, Defendant was transported to the Jefferson Parish, Correctional Center, where he made several phone calls. Portions of the phone calls were played for the jury. In the phone calls, Defendant admitted he was involved in a pursuit with vehicles he identified as law enforcement, admitted his |4 tires started sliding and that he struck a mailbox, and admitted that' he will' run every time he sees the police because he does not like the police.

At trial, Defendant presented testimony from Troy Robertson,, who had known Defendant for 10-15 years. Mr. Robertson testified that he was cutting grass on‘ the day of the incident when Defendant passed by in a grey Acura and spoke tó him. He stated that a black sedan came behind Defendant and was following him. Mr. Robertson noted that Defendant was driving at a slow rate of speed while the sedan was driving at a high rate of speed without its lights or sirens.

ISSUE

In his sole assignment of error, Defendant argues the-evidence was insufficient to support..his conviction for aggravated obstruction of a highway of commerce -because there was no proof he was speeding and no proof he engaged in any action that put any human life in danger.

DISCUSSION

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-674 (La. 6/29/01); 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In the instant case, Defendant was convicted of aggravated obstruction of a highway of commerce in violation of La. R.S. 14:96. La. R.S. 14:96(A) defines aggravated obstruction of a highway of commerce as “the intentional or criminally | .^negligent placing of anything or performance of any act on any ... road, highway, [or] thoroughfare ... wherein it is foreseeable that human life might be endangered.” Several cases have discussed the sufficiency of evidence in relation to La. R.S. 14:96.

In State v. Cox, 08-492 (La. 1/21/09); 5 So.3d 869, the defendant argued that the evidence was insufficient to support his conviction of aggravated obstruction of a highway of commerce. The evidence showed that the defendant was engaged in a high-speed.. chase with authorities through residential neighborhoods at speeds approaching 100 mph. While negotiating a curve, .the defendant’s vehicle crossed the center line at a speed of 85 mph and struck another vehicle traveling in the opposite direction at a speed of 40 mph, causing the death of the driver of the other vehicle. The evidence indicated that the defendant intentionally turned his vehicle toward the victims into the oncoming lane of travel. Additionally, the defendant’s son testified that the defendant proclaimed that “he would not be taken alive, and nobody was going to get in his way.” Id. at 872.' Finding sufficient evidence to support the conviction, the supreme court noted that the defendant’s conduct represented “any other act” which created.a foreseeable risk to human life.

Also, in State v. Smith, 07-1443 (La. App. 3 Cir. 1/21/09); 2 So.3d 1187, writ denied, 09-407 (La. 11/6/09); 21 So.3d 300, the Third Circuit found that the evidence was sufficient to support the defendant’s conviction of aggravated obstruction of a highway. The court relied on the evidence that the defendant drove his truck at excessive speeds greater, than 100 mph on roadways, forced at least one vehicle partially off the road and onto the shoulder, wove in and out of |fitraffic at excessive speeds, and ran two red lights, all of which could have foreseeably caused life-threatening accidents.

Upon review of the record in the instant case, we find the evidence was sufficient to support Defendant’s conviction for aggravated obstruction of a highway of commerce. The evidence presented by the State showed that Defendant led the police on a high speed chase through two residential neighborhoods where children were outside and people were walking around, ran several stop signs, drove recklessly, lost control of his vehicle, swerved off the roadway, struck a garbage can and a mailbox completely removing it from the ground, and ultimately exited his vehicle after leaving it in the middle of the roadway. The police even “backed off’ of the chase at one point because of Defendant’s recklessness and they feared for the safety of the public and themselves. Additionally, there was testimony that Defendant drove by a construction crew in one of the neighborhoods traveling at a speed of 60-70 mph.

Further, the State presented several of Defendant’s jail phone calls wherein he stated to the person on the other end that he was involved in a pursuit, that he knew the black vehicles were law enforcement, that his tires started sliding, that he struck a mailbox, that he exited his vehicle because he was “tired” of the pursuit, and that whenever he saw the police he was going to run as he did not like them.

We find this evidence sufficiently proves intentional or criminally negligent actions wherein it was foreseeable that human life might be endangered. Although Defendant presented a witness who testified that Defendant was driving slowly and that there was no construction work on the street on the day in question, the jury clearly rejected this version of events. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La. App. 5 Cir. 4/29/97); 694 So.2d 1052, 1056.

ERRORS PATENT

We have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920, and find no errors that require corrective action.

DECREE

Finding sufficient evidence to support his conviction, we affirm Defendant’s conviction and sentence for aggravated obstruction of a'highway of commerce.

AFFIRMED

      . Project STAR is a proactive unit designed to patrol higher crime neighborhoods looking for any kind of street crime, including narcotics, guns, stolen cars and gang activity.

      . ' This area was identified as a residential area between Ames and Westwood (east and west boundaries) and Lapalcó and the West-bank Expressway (north and south boundaries).

      . Although Defendant was also convicted of resisting a police officer with force or violence, he does not challenge that conviction in this appeal.

      . It is noted that the supreme court remanded the case for consideration of issues not addressed in the appellate court’s original opinion. On remand, the Third Circuit vacated the defendant's conviction for aggravated obstruction of a highway of commerce based on double jeopardy. State v. Cox, 07-774 (La. App. 3 Cir. 3/4/09); 4 So.3d 998, 1000, writ denied, 08-602 (La. 9/4/09); 17 So.3d 948.


author: LILJEBERG, J.

text:
    WOOD MATERIALS, LLC and Wood Resources, LLC v. CITY OF HARAHAN
    NO. 17-CA-142
    Court of Appeal of Louisiana, Fifth Circuit.
    October 2, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, WOOD MATERIALS, LLC AND WOOD RESOURCES, LLC L. Etienne Balart, Michael- C. Drew, Remy J, Donnelly, Lauren C. Mastio
    COUNSEL FOR DEFENDANT/APPELLANT, CITY OF HARAHAN, Gilbert R. Buras, Jr.
    Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   LILJEBERG, J.

11Appellant, • City of Harahan, seeks review of the trial court’s denial of its motion for preliminary injunction. For reasons stated below, we find the trial court’s judgment must be vacated and this matter remanded for further proceedings,

This case arises from the trial court’s denial of a motion for preliminary injunction filed by appellant, City of Harahan, against appellees, Wood Materials, L.L.C., and Wood Resources, L.L.C, (the “Wood Companies”). The Wood Companies operate a composting facility on the batture of the Mississippi River within the City’s corporate limits. The Wood Companies instituted this lawsuit on June 9, 2016, and sought, inter'alia, a-judgment declaring that their composting operations constituted a nonconforming use in accordance with La. R.S. 9:5625, On July 21, 2016, the City filed a reconventional demand seeking a judgment declaring the operation of a composting facility in-a “NU Non-Urban Bat-ture” -District to be in violation of its Comprehensive Zoning Ordinance, The City amended its reconventional demand on October 11, 2016.

On that same day, the City filed a Motion for Entry of Preliminary Injunction seeking' to enjoin the Wood Companies from operating the composting facility. The trial court held a hearing on -the motion on- December 7, 2016. During the hearing, the parties referred to and relied on exhibits attached to the memoranda they filed in support of and in opposition to the motion for preliminary injunction. However, based on our review of the transcript and minute entry from the hearing, neither party moved to enter the exhibits discussed during the hearing, into the record as evidence. At the end of the hearing, the trial court denied the City’s request for a preliminary injunction, and on December, 13, 2016, the trial court signed a written order denying the same.

20n December 22, 2016, the City filed a request for written reasons for judgment. On December 28, 2016, the City fiied a timely motion to appeal the judgment denying its motion for preliminary injunction. On January 9, 2017, the trial court provided reasons for judgment indicating that after considering the evidence submitted by the parties, it determined the City failed to make a prima facie showing that it would prevail on the merits.

We do not address the assignments of error raised by the City because after thorough review of the record, we find no • evidence was properly and officially offered and admitted into evidence in support of or against the motion for preliminary injunction. The trial court indicated in its reasons that it relied on evidence presented by the parties in rendering its decision. Because the exhibits attached to the memoranda were not offered and entered into the record as evidence, we find the trial court erred in rendering its decision based on evidence not properly before the court.

Although the failure to admit evidence was not assigned as an error in. this dase,, the Supreme Court and this Court have routinely held that appellate courts may . not consider evidence not properly admitted into evidence, whether the lack of admission.into evidence was assigned as error or not. Quinn v. La. Citizens Prop. Ins. Corp., 12-152 (La. 11/2/12), 118 So.3d 1011; Barnes v. Jacob, 13-596 (La. App. 5 Cir. 12/12/13), 131 So.3d 363, 364.

Exhibits .not properly and officially offered and admitted into evidence cannot be considered, even if they are physically, filed into the trial court record. Denoux v. Vessel Mgmt. Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88; Scheuermann v. Cadillac of Metairie, Inc., 11-1149 (La. App. 5 Cir. 5/31/12), 97 So.3d 423, 426. Except as otherwise provided by law, documents attached to mem-oranda do not constitute evidence and cannot be considered as such on appeal. Denoux, 983 So.2d at 88. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Id; La. C.C.P. art. 2164.

During argument at the hearing on the preliminary injunction, counsel for the parties referred to exhibits, but at no time did they move to enter the exhibits into evidence, and the trial court did not admit these exhibits into evidence. Accordingly, we find the trial court erred in considering the exhibits attached to the parties’ memo-randa in deciding the City’s motion for preliminary injunction. The judgment is vacated and the matter is remanded to the trial court for further proceedings.

VACATED AND REMANDED

      . La. C.C.P. art. 3609 provides that a “court may hear an application for a preliminary injunction ... upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases. If the application is to be , heard upon affidavits, the court shall so order in writing, and a copy of the order shall be served upon the defendant at the time the notice of hearing is served.” Based on our review of the record, the parties did not file verified pleadings and the trial court did not enter a written order indicating it would hear the motion for preliminary injunction on affidavits. Therefore,' it appears the trial coúrt intended to accept evidence as in ordinary cases. As noted above, the parties neglected tp offer any of their exhibits into evidence,

      . An exception exists with respect to summary judgment motions, La. C.C.P. art. 966(D)(2) permits a court to "consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made.”


author: JOHNSON, J.,

text:
    IN RE: L. D. B., Applying for Intra Family Adoption of E. B.
    NO. 17-CA-373
    Court of Appeal of Louisiana, Fifth Circuit.
    October 04, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, L. D. B., Joaquin Shepherd
    COUNSEL FOR DEFENDANT/APPELLANT, K. L., Nisha Sandhu
    COUNSEL FOR MINOR/APPELLEE, E. J. B., Melissa W. Berniard, New Orleans. ■
    Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   JOHNSON, J.,

| iln this intrafamily adoption case, the biological mother appeals the judgment of the juvenile court finding that her consent was not required for the adoption. For the following reasons, we dismiss the appeal.

FACTS & PROCEDURAL HISTORY

Appellant, K.L., and C.B., who were never married, had a child, E.B., together on July 1, 2005. The parties parted ways in 2009, when E.B. was four years old. From 2009 until 2014, the parties shared, joint custody of E.B., with K.L. as the domiciliary parent and C.B. having visitation every other weekend and holidays. In 2014, after an apparent contentious custody battle, C.B. became the domiciliary parent and K.L. had visitation.

After separating from K.L., C.B. married L.B. in September 2009. On February 24, 2017, L.B. and C.B. filed a petition for intrafamily adoption in Juvenile Court for the Parish of Jefferson, wherein L.B. sought to adopt E.B. The parties alleged that E.B.’s biological mother, K.L., who had not consented to the adoption and whose parental rights had not been terminated, had failed to visit or attempt to communicate with E.B. for a period of ten months and had failed to pay court ordered child support for more- than one year. As such, the parties asserted that K.L.’s consent was not required for the adoption. The parties further averred it was in E.B.’s best interest that she.be adopted by L.B.

K.L. filed an opposition to the petition for intrafamily adoption, claiming that C.B. and L.B. had denied her contact with E.B. despite her repeated attempts since August 2015. K.L. admitted that she had been in arrears for her child support obligation, but asserted that she had made payments and continues■ to make' efforts lato reduce her arrearages and meet her obligation. K.L. alleged the petition for-adoption was an abuse of process in the ongoing custody disputé in the 24th Judicial District Court (“24th JDC”).

The juvenile court conducted a heating on the opposition to the adoption on May 8, 2017. At the hearing, C.B. and L.B. testified in support of their petition and introduced evidence consisting of various emails between C.B. and K.L.; a visitation calendar kept by C.B.; documentation regarding K.L.’s' child support obligation and arrears; a police report showing a child custody disturbance on February 10, 2017 at which time K.L. .was arrested on an outstanding attachment; a Valentine’s Day card and Mother’s Day card given to L.B. by E.B.; and a letter from E.B,’s court appointed attorney indicating that K.L. was not agreeable to meet to discuss school holiday visitation. Additionally, the court examined E.B. in chambers in the presence of counsel..

To oppose the petition, K.L. offered her own testimony along with the testimony of her mother, a friend, LJB.’s brothér and sister-in-law, and L.B.’s ex-husband. K.L. also introduced into evidence more emails between herself and C.B., photographs showing her house and EJB.’s room at her house, as well as photographs of E.B. with K.L. and family, and a letter from Kerry Nesbit with Behavioral Health Solutions of Louisiana indicating • that K.L. had been diagnosed with post-traumatic stress disorder, major depressive disorder and borderline personality disorder and had been treating at the clinic since August 6, 2016.

The juvenile court rendered judgment at the conclusion of the hearing, which was reduced to writing the same day, denying KL.’s opposition to the petition for intra-family adoption, specifically finding that C.B. and L.B. proved by clear and convincing evidence that K.L. had failed to support and visit her child for a period in excess of six months and that her consent was not required for the adoption to proceed. In explaining its ruling, the court stated that it had reviewed lathe 24th JDC child custody record, noting that it was “two large volumes and a third not-so-large volume.” The court extensively referred to an evaluation that was conducted in September 2013 in the child custody case in which E.B.’s therapist reported certain concerns. In ruling from the bench, the' court explicitly stated that it was in E.B.’s best interest for the adoption to go forward; however, the court did not render a final decree granting or denying the petition for adoption. Instead, the court explained:

It is my policy to wait the time limit to see if this decision will be appealed before I actually go forward with the final degree [sic]' of adoption, and I am going to do that in this case. I will set a tentative date for the adoption hearings in approximately 30 days.

Thereafter, K.L. filed a motion for a suspensive appeal from thfe May 8, 2017 judgment “decreeing the. adoption of E.J.B. in favor of [L.B.j,” which the juvenile court granted.

ISSUES

On appeal; K.L. argues the trial court erred in granting the adoption of E.B. to L.B. and in severing her parental rights. Additionally, she asserts the trial court erred in finding K.L. was without just cause for not visiting and communicating ■with E.B.

JURISDICTION

Before considering the merits of any appeal, appellate courts have the duty to determine sua sponte whether subject matter jurisdiction exists, even when the parties do not raise the issue. Lynch-Ballard v. Lammico Ins. Agency Inc., 13-475 (La. App. 5 Cir. 11/19/13); 131 So.3d 908, 910. This Court’s appellate jurisdiction extends only to final judgments. Alvarez v. LeBlanc, 08-247 (La. App. 5 Cir. 9/30/08); 996 So.2d 517, 520, citing La. C.C.P. art. 2083. A final judgment is one that determines the merits in whole or in part, while an interlocutory judgment is one that does not determine the merits, but only preliminary matters in the course l4of the action. La. C.C.P.' art. 1841. While a final judgment is appealable, an interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. art. 2083.

A judgment that only partially determines the merits of the action is a partial final judgment, and therefore only appeal-able if authorized by La. C.C.P. art. 1915. Article 1915 provides six situations, none of which exist in this case, where a judgment that does not grant the successful party all of the requested relief or adjudicate all of the issues may still constitute a final judgment. Even so, a partial final judgment is only appealable if “it is designated as a final judgment by the court after an express determination that there is no just reason for delay.” La. C.C.P. art 1915(B)(1).

,, The written judgment in this case expressly found that “as a matter of law,” under La. Ch.C. art. 1245, “K.L.’s consent to the adoption of E.J.B. by her stepmother is not required for the adoption to proceed.” It further stated:

IT IS ORDERED, ADJUDGED AND DECREED that the opposition to the adoption of E.J.B. is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Final Decree on the adoption of E.J.B. shall proceed-accordingly.

Despite K.L.’s representations on appeal, the judgment does not explicitly grant or deny the adoption and it does not terminate KL.’s parental rights; therefore, it does not' constitute a final judgment.

RThe issue of whether the consent of a natural parent is required for an intrafamily adoption is only the first part of the inquiry. The basic consideration for an intrafamily adoption is the best interest of the child. La. Ch.C. arts. 1193 and 1255. Even if consent of a biological parent is not necessary under La. Ch.C. art. 1245 because of the failure .to support or visit/communicate with the child, the court must still consider whether the adoption is in the best interest of the child. In re B.J.C., 51,110 (La. App. 2 Cir. 9/28/16); 206 So.3d 337, 347.

Although the juvenile court’s oral and written reasons for judgment indicate that it found adoption to be in the best interest of E.B., such a finding is not made in the written judgment. Neither the oral nor written reasons for judgment form a part of the judgment. Appellate courts review judgments and not the reasons for judgment. The written reasons for judgment are merely an explication of the trial court’s determinations. They do not alter, amend or affect the judgment being appealed. Wooley v. Lucksinger, 09-571 (La. 4/1/11); 61 So.3d 507, 572. Additionally, when a trial judge’s oral reasons conflict with his .written, signed judgment, the written judgment prevails. Kirby v. Poydras Center, LLC, 15-27 (La. App. 4 Cir. 9/23/15); 176 So.3d 601, 607. Thus, the juvenile court has not. completed the pertinent determination of the best interest of the child for purposes of the intrafamily adoption.

Accordingly, we find that the judgment at issue, which denies KL.’s opposition to the petition for intrafamily adoption by finding K.L.’s consent is not necessary for the adoption to proceed but does not grant or deny the adoption, is not a final appeal-able judgment. Accordingly, we find that we do not have appellate jurisdiction to consider the merits of the present appeal; therefore, we dismiss this appeal without prejudice.

Because the juvenile court has set an adoption hearing for a future date, we would be remiss if we did not strongly caution the juvenile court against two errors Ifithat we observed while reviewing the appellate record. First, the record reveals that the juvenile court took judicial notice of the 24th JDC child custody record and, in fact, relied extensively on documentation contained in that record. However, there is no .indication that the record was introduced by either party into evidence.

La. C.E. art. 202 provides for mandatory judicial notice of federal and state laws and of certain ordinances, as well as for notice of . various other legal matters, on request of a party and with proper documentation. Article 202 does not allow, nor has it ever been interpreted to allow, courts to take judicial notice of other courts’ proceedings. Rather, documentation of such proceedings must be offered into evidence in the usual manner. United General Title Ins. Co. v. Casey Title, Ltd., 01-600 (La. App. 5 Cir. 10/30/01); 800 So.2d 1061, 1064-65. Thus, while a court may take judicial notice of its own proceedings, which the court did in this case regarding the child support record, there is no provision in Louisiana law for a court to take judicial notice of suit records in other courts. As such, the juvenile court erred in considering the 24th JDC child custody record, absent its introduction into evidence by a party, in reaching its decision.

Second, the record indicates the trial court may have relied on the rebutta-ble presumption under La. Ch.C. art. 1255, which states “[w]hen a court has granted custody to either the child’s grandparents or his parent married to the stepparent petitioner, there shall be a rebuttable presumption that [the] adoption is in the best interest of the child.” The juvenile court is cautioned that this presumption only applies when sole custody has been awarded, not joint. In re C.B., 94-755 (La. 10/17/94); 643 So.2d 1251, 1256. And, as noted above, the child custody judgment from the 24th JDC was never introduced into evidence and it is unclear from the testimony whether C.B. was granted sole custody or simply became domiciliary parent in a joint custody situation in 2014.

^Accordingly, the juvenile court is advised to carefully proceed with the adoption hearing to ensure both parts of the inquiry, specifically the best interest of the child, are determined solely on properly admitted evidence.

DECREE

Based on the foregoing, we dismiss this appeal for lack of jurisdiction.

APPEAL DISMISSED

      . The child custody judgments rendered by the 24th Judicial District Court were never ' introduced into evidence and are not contained in the appellate record. According to C.B., K.L. "lost custody” of E.B. in 2014. . However, it is unclear from the record whether C.B. was awarded sole custody or whether he was simply designated as the domiciliary parent.

      . Appellate review of interlocutory judgments for which an appeal is not expressly authorized is through this Court’s supervisory authority set forth in La. C.C.P. art. 2201. Mace Scott Enterprises, Inc. v. Doug Cook Enterprises, LLC, 16-73 (La. App. 5 Cir. 5/19/16); 193 So.3d 415, 417, writ denied, 16-1686 (La. 11/29/16); 211 So.3d 387.

      . We note that the minute entry from May 8, 2016 indicates that the trial court terminated K.L.’s parental rights. However, neither the transcript nor the written judgment signed by the juvenile court judge supports this statement. See State v. Nicholas T. Miller $20,919.00 in U.S. Currency, 13-715 (La. App. 1 Cir. 12/27/13); 137 So.3d 42, 45, writ denied, 14-193 (La. 4/4/14); 135 So.3d 645 ("It is well settled that when, there is a conflict between a minute entry and a written judgment, the latter governs; the trial court may, within its authority, render a judgment thát differs substantially from its prior oral statements, for such oral reasoning, forms no part of the judgment, as it is the formal, signed judgment that governs the controversy,”) The written judgment shows that the court simply denied K.L.’s opposition to the adoption and found her consent was not required for the adoption to go forward. At this point, K.L,’s parental rights are still, intact, Specifically, under La. Ch.C. art. 1256, where a parent’s rights have not been previously terminated by surrender or a judgment of termination, it is only upon a final decree of adoption that parental rights are terminated.


author: WALLER, CHIEF. JUSTICE, COLEMAN, JUSTICE,

text:
    Douglas Michael LONG, Jr. v. David J. VITKAUSKAS
    NO. 2015-CT-00527-SCT
    Supreme Court of Mississippi.
    10/05/2017

      ATTORNEYS FOR APPELLANT: MICHAEL J. MALOUF, JAMES MATTHEW LENDERMAN, ROBERT EUGENE JONES, II
    ATTORNEYS FOR APPELLEE: A.E. (RUSTY) HARLOW, JR., KATHI C. WILSON
   WALLER, CHIEF. JUSTICE,

FOR THE COURT:

¶ 1. On March 17, 2014, Douglas Michael Long Jr. filed suit against Pennsylvania resident David J. Vitkauskas for alienation of affections. Vitkauskas entered a special appearance and then filed a motion to dismiss for, inter alia, insufficient service of process under Mississippi Rule of Civil Procedure 4(c)(5). The trial court granted Vitkauskas’s motion to dismiss on the ground of insufficient service of process, and the Court of Appeals affirmed. Finding service was sufficient, we reverse and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2. Long and his wife separated on May 16, 2011. On March 17, 2014, Long sued Vitkauskas in DeSoto County Circuit Court for alienation of affections. Long attempted to serve process on Vitkauskas, a resident of Pennsylvania, via certified mail marked “restricted delivery” pursuant to Mississippi Rule of Civil Procedure 4(c)(5), The' mailing was addressed to Vit-kauskas at his place of employment. While delivery was restricted to Vitkauskas, the return receipt was signed by someone named “Mary” with the last name illegible.

if 3. On May 14, 2014, Vitkauskas’s attorney entered a special appearance to contest jurisdiction and filed a motion to dismiss on the basis of insufficient service of process, stating “service of process was insufficient in that the summons was mailed to the Defendant[’]s employer[,] not to the Defendant.” In his response, Long claimed he complied with the requirements of Rule 4, attaching the return receipt as an exhibit. On October 9, 2014, the trial court granted Vitkauskas’s motion, finding that service was insufficient because the signature, “Mary Bre appeared on the return receipt instead of Vitkauskas’s signature. Long filed a motion for reconsideration, stating process was adequate under the rules or, alternatively, for additional time to serve Vitkauskas, because the time within which to serve Vikauskas had expired. After a hearing, the trial court denied Long's motion for reconsideration.

¶ 4. Before the Court of Appeals, Long argued service of process was sufficient and the trial court had erred by failing to consider his request for additional time to serve Vitkauskas. The Court , of Appeals affirmed the .trial court’s dismissal of the case, finding no abuse pf discretion. Long v. Vitkauskas, 228 So.3d 383, 385-86, 2016 WL 5793348, at *2 (Miss. Ct. App. Oct. 4, 2016), cert. granted by 214 So.3d 1060 (Miss. 2017). We granted Long’s petition for writ of certiorari, which raised the following two issues: (1) whether the trial court and the Court of Appeals erred by finding that service of process was insufficient, and (2) whether the trial court erred by refusing to consider Long’s request for additional time to serve Vitkauskas. We hold service of process was sufficient; therefore, Long’s second concern is moot.

STANDARD OF REVIEW

¶ 5. The standard of review for a trial court’s grant or denial of a motion to dismiss is de novo. Johnson v. Rao, 952 So.2d 151, 154 (¶ 9) (Miss. 2007). With regard to service of process, this Court applies an abuse-of-discretion standard of review to the trial court’s findings of fact. Nelson v. Baptist Mem’l Hosp.-N. Miss., Inc., 70 So.3d 190, 195 (¶ 17) (Miss. 2011).

DISCUSSION

¶ 6. Mississippi Rule of Civil Procedure 4(c)(5) requires a mailing of process to an out-of-state, natural defendant be marked “restricted delivery.”

[A] summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested. Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked “restricted delivery.” Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked “Refused.”

Miss. R. Civ. P. 4(c)(5).

¶ 7. First, a line-by-line review of Rule 4(c)(5) shows Long complied with every requirement under the rule. Vitkauskas is a resident of Pennsylvania; thus, he is a “person outside this state” for purposes of Rule 4. Miss. R. Civ. P. 4. Therefore, service may be had on Vitakuskas “by sending a copy of the summons and of the complaint to [him] by certified mail, return receipt requested.” Id. The summons was sent to Vitkauskas’s place of employment, addressed as follows:

David J. Vitkauskas

Berwick Offray, LLC

2015 West Front Street

Berwick, PA 18603.

Id. Process was effected by “CERTIFIED MAIL SERVICE. By mailing to an address outside Mississippi (by first class mail, postage prepaid, marked restricted delivery, and requiring a return receipt) copies to the person served.” Id. As Vit-kauskas is a natural person, the envelope must have been marked “restricted delivery.” Id. Both the proof of service and the return receipt evidence that it was so marked. Finally, the rule provides that “[s]ervice by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked ‘Refused.’” Id. (emphasis added). Long presented the return receipt to the trial court. Accordingly, Long complied with all the requirements set out within the Rule.

¶ 8. The central concern, though, is that the name “Mary” appeared on the return receipt, instead of the defendant’s name. We do not know who “Mary” is. Nevertheless, “we have held that a return of process is presumed to be correct .... ” McCain v. Dauzat, 791 So.2d 839, 842 (¶ 8) (Miss. 2001); see also Collins v. Westbrook, 184 So.3d 922, 929 (¶ 18) (Miss. 2016); Wesley Health Sys., LLC v. Estate of Love, 200 So.3d 440, 445 (¶ 21) (Miss. 2016). Because “restricted delivery” limits the delivery of mail “to the addressee or to the person authorized in writing as the addressee’s agent,” a rebuttable presumption arises that the return receipt was signed by the defendant or his' authorized agent.

¶ 9. The presumption is rebutta-ble through the use of extrinsic evidence, “including the testimony of the party who is contesting service.” Collins, 184 So.3d at 929 (¶ 18). Indeed, “testimony [by the contesting party], if believed, [is] sufficient to overcome the presumption and to support [a] finding ... that she was not served.” Lampton-Reid Co. v. Allen, 177 Miss. 698, 714, 171 So. 780, 783 (1937). However, “in the absence of an objection and offer of proof by [a party, a] due-process argument is without substantive merit.” Wilburn v. Wilburn, 991 So.2d 1185, 1192 (¶ 16) (Miss. 2008). Vitkauskas never argued that “Mary” was not his authorized agent, nor did he state that he failed to receive process. Additionally, the record contains no offer of proof by Vitkauskas to contest either point. Had he done so, the burden then would have shifted to Long to prove “Mary” was'an authorized agent of Vit-kauskas. However, without an appropriate objection and offer of proof, Vitkauskas’s “due-process argument [was] without substantive merit.” Id.

CONCLUSION

¶ 10. The trial court and Court of Appeals erred in ruling that Long’s service of process on Vitkauskas was insufficient. Under Rule 4(c)(5), a rebuttable presumption arises that a signed return receipt is valid when delivery is restricted. The presumption can be rebutted, but only if the defendant objects thereto and submits an offer of proof to the contrary. Accordingly, we reverse the judgments of the Court of Appeals and the trial court, and we re.mand this case to the circuit court for further proceedings consistent with this opinión.

¶ 11. REVERSED AND REMANDED.

RANDOLPH AND KITCHENS, P.JJ., KING AND BEAM, JJ„ CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MAXWELL, J. CHAMBERLIN AND ISHEE, JJ.,.NOT PARTICIPATING.

COLEMAN, JUSTICE,

DISSENTING:

¶ 12. Because the majority misapplies the presumption of correctness that applies to a return of process I, with respect, dissent.

¶ 13. In McCain v. Dauzat, 791 So.2d 839 (Miss. 2001), upon which the majority chiefly relies for its crucial premise that summons is presumed to have been served on Vitkauskas in the case sub judice, the process server provided a sworn affidavit and a sworn return of process that identified the defendant as the individual upon whom process had been served. Id. at 841 (¶ 2) (“[T]he proof of service indicates that a summons and copy of the complaint were personally served on McCain. ... ”) The presumption is not that a defendánt claiming not to have been served is presumed to have been served, but that the return of service of process accurately reflects the identity of the person served. Id. at 842 (¶ 8) (“[A] return of prócess is presumed to be correct. ... ”) If anything, in the instant case the presumption operates in favor of Vitkauskas’s claim not to have been served, as the return receipt identifies the person served as the mysterious Mary.

¶ 14, In any event, from the misapplication of the presumption, the majority concludes that a rebuttable presumption exists that the return receipt was signed by the defendant or his authorized agent. The majority cites no additional authority for its conclusion other than a postal service manual. Cértainly, the majority canfiot mean that, as a matter of law, a defendant himself is presumed to have signed a return receipt when all agree that someone else’s signature appears upon it. Moreover, presuming that a postal service regulation was properly observed by an unidentified postal service employee differs in a fundamental manner from presuming that summons was properly served based on a sworn return of process or affidavit identifying by name both the server and the defendant ás the person served. Finally, the majority skips a necessary step, in that the majority does not establish that authorizing another as an agent for the purpose of accepting certified mail pursuant to the postafi manual equates to authorizing another to accept service of process in a manner satisfying the requirements- of due process.

¶ 15,'For the foregoing reasons, I cannot agree with the majority’s creation of a new presumption that, when summons is certified via certified mail, a return of service signed by any unidentified person creates a presumption that the plaintiff properly served the defendant. Because the trial court and Court of Appeals were correct, I would affirm.

MAXWELL, J., JOINS THIS OPINION.

      . While other grounds were alleged, the trial court limited its ruling to insufficient service of process,

      . Long’s window to serve process was 120 days. Also, the statute of limitations on Long's claim originally was set to run on May 15, 2014. However, Long filed his complaint on March 17, 2014, which tolled the limitations date until September 11, 2014, Vitkauskas filed his motion to dismiss on May 14, 2014, and the hearing on the motion was set for August 15, 2014. Thej'circuit court did not issue its order of dismissal until October 9, 2014, which was twenty-eight days after the statute of limitations hád run on Long’s claim and 129 days after the motion to dismiss had been filed.

      . United States Postal Service, Domestic Mail Manual (DMM), § 508, Ex. 1.1.8, https://pe. usps.eom/text/dmm300/508.htm#epl044900 (last visited Oct. 3, 2017) (emphasis added). See also Postal Regulatory Commission, Mail Classification Schedule (MCS), § 1505.5.1, https://www.prc.gov/mail-cIassification-schedule (last visited Oct. 3, 2017) (providing classifications of postal products pursuant to the Postal Accountability and Enhancement Act (PAEA), Pub. L. 109-435, 120 Stat. 3198, Oct. 3, 2006) ("Restricted Delivery ... directs delivery only to the addressee or addressee’s agent.’’) (emphasis added).