text:
    INSULATION SALES & SERVICES, LLC v. MID-SOUTH MECHANICAL CONTRACTORS, INC., et al.
    NO. 2017-CC-0905
    Supreme Court of Louisiana.
    September 29, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 642454; to the Court of. Appeal, First Circuit, No. 2017 CW 0243;

| denied.


source: Caselaw Access Project

license: Public Domain

text:
    Melissa O’DWYER, Laura Franks, Jiala Barclay, Rachel Carraway, Mark Bates, Tamika Thomas-Magee and Anavernyel Neyuland-Pryan v. OUR LADY OF THE LAKE NURSE ANESTHESIA PROGRAM Through Our Lady of the Lake College and Yvonne Bahlinger in her Official Capacity as Clinical Director Assistant Program Director
    NO. 2017-CC-0839
    Supreme Court of Louisiana.
    September 29, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. C604436; to the Court of Appeal, First Circuit, No. 2016 CW 1574

| TPenied.

HUGHES, J., would grant in part.


text:
    Emily CLEMENT v. STATE of Louisiana, THROUGH the DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    NO. 2017-CC-1507
    Supreme Court of Louisiana.
    September 29, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. B, No. 71,431; to the Court of Appeal, First' Circuit, No. 2017CW 0650

liDenied.

CLARK, J., would grant.

CRICHTON, J., would grant.


text:
    Lori FRANKS, Individually and as Tutrix of Her Minor Children, A.F. and C.F. v. The LOUISIANA PATIENT’S COMPENSATION FUND OVERSIGHT BOARD, Charlotte A. Hollman, M.D. and Deborah Ray Gahgan
    NO. 2017-C-0868
    Supreme Court of Louisiana.
    September 29, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 641,926; to the Court of Appeal, First Circuit, No. 2016 CA 0765

|, Denied.


text:
    TRANS PACIFIC INTERACTIVE, INC. v. U.S. TELEMETRY CORPORATION; U.S. Telemetry Network, Inc.; U.S. Telemetry-Bakers Field, LLC; Datex Spectrum, LLC; Thomas L. Siebert; K. Steven Roberts; Robert S. Miller; Don M. Clarke; James K. Gable; Charles M. Bruce; John J. Broussard; Henry (Hank) Mills; Clay M. Allen; and Stephen D. Gavin
    NO. 2017-C-0914
    Supreme Court of Louisiana.
    September 29, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 507,714; to the Court of Appeal, First Circuit, No. 2016 CA 1298; September 29, 2017

|! Denied.


text:
    Lori FRANKS, Individually and as Tutrix of Her Minor Children, A.F. and C.F. v. The LOUISIANA PATIENT’S COMPENSENTAION FUND OVERSIGHT BOARD, Charlotte A. Hollman, M.D. and Deborah Kay Gahgan
    NO. 2017-C-0877
    Supreme Court of Louisiana.
    September 29, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 641926; to the Court of Appeal, First Circuit, No. 2016 ca 0765;

11 Denied.


text:
    SUCCESSION OF John Patrick THERIOT, Jr., et al.,
    NO. 2017-C-1035
    Supreme Court of Louisiana.
    September 29, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. E, No. 15421; to the Court of Appeal, Third Circuit, No. 16-639 C/W16-961

| denied.


author: CONERY, Judge.

text:
    STATE of Louisiana v. Russell Ross RUBIN
    17-286
    Court of Appeal of Louisiana, Third Circuit.
    08/31/2017
    Alex D. Chapman, Jr., 801 West Linclon Road, Ville Platte, Louisiana 70586, 337-363-2229, COUNSEL FOR DEFENDANT/APPLICANT, RUSSELL ROSS RUBIN
    Court composed of Shannon J. Gremillion, John E. Conery, and Candyce G. Perret, Judges.
   CONERY, Judge.

_JjOn December 14, 1993, an Evangeline Parish Grand Jury charged Relator, Russell Ross Rubin, with one count of second degree murder in violation of La.R.S. 14:30.1. Relator was convicted of the offense on April 29, 1994, and on April 29, 1994, the sentencing court ordered Relator to serve life imprisonment at hard labor without benefit of probation, parole, and suspension of sentence. On appeal, this court reversed Relator’s conviction and sentence and remanded the matter for a new trial. State v. Rubin, 94-982 (La.App. 3 Cir. 2/8/95), 649 So.2d 1240, writ denied, 95-1135 (La. 10/13/95), 661 So.2d 494.

Following a second trial, a jury found Relator guilty as charged on January 25, 1996. On February 9, 1996, the district court again ordered Relator to serve a mandatory sentence of life imprisonment-at hard labor without benefit of probation, parole, and suspension of sentence. On appeal and subsequent review, both this court and the supreme court affirmed Relator’s conviction and sentence. State v. Rubin, 96-1294 (La.App. 3 Cir. 5/7/97), 696 So.2d 4, writ denied, 97-1537 (La. 11/14/97), 703 So.2d 1289.

On or about December 14, 2016, Relator filed a motion to correct illegal sentence with the trial court alleging Relator was fifteen years old at the time of the offense and seeking relief under State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606. The trial court conducted a hearing on Relator’s motion on February 23, 2017. Following argument by counsel, the trial court denied reconsideration of Relator’s sentence.

On March 23, 2017, Relator, through counsel, filed a writ application with this court seeking supervisory review of the trial court’s February 23, 2017 denial of Relator’s motion to correct illegal sentence.

Though Defendant provides this court with a notice of intent addressed to the trial court and date-stamped as received on March 20, 2017, the attached return | adate order is unsigned. Thus, Defendant’s writ application does not comply with Uniform Rules—Courts of Appeal, Rules 4-3 and 4-5(C)(ll), which both require the attachment of all return date orders issued by the district court. However, defense counsel filed his writ application with this court within thirty days of the subject ruling, and the Louisiana Supreme Court has explained the purpose of Uniform Rules—Courts of Appeal, Rule 4-3 was to keep pretrial and trial proceedings from unnecessary delay by creating finality of interlocutory rulings. State v. Goppelt, 08-0576, p. 2 (La. 10/31/08), 993 So.2d 1188, 1189. The supreme court has recently ruled Uniform Rules—Courts of Appeal, Rule 4-3 should be applied sparingly in cases where a defendant’s conviction and sentence are final. See State v. Landry, 14-513 (La. 10/3/14), 149 So.3d 276, 276-77; and see, State v. Scott, 12-2458, p. 1 (La. 8/30/13), 123 So.3d 160, 160-61.

For the following reasons, we grant the writ, make it peremptory, and remand the ease for re-sentencing in accordance with State v. Montgomery, La. Code Crim.P. art. 878.1, La.R.S. 15:574.4(E), and 2017 La. Acts No. 227 (effective August 1, 2017).

ASSIGNMENTS OF ERROR

In his writ application, Relator raises two assignments of error:

1. The district court erred when it failed to vacate Mr. Rubin’s unconstitutional mandatory sentence of life without parole, as required by Miller v. Alabama[ ] and Montgomery v. Louisiana.
2. The district court erred when it held that La.C.Cr.P. art. 878.1 did not apply to Mr. Rubin, despite the directive of the Louisiana Supreme Court in State v. Montgomery that La.C.Cr.P. art. 878.1 was applicable to all cases controlled by Montgomery v. Louisiana.

LAW AND DISCUSSION

Relator argues that resentencing is mandatory. Relator contends that, since he was a juvenile at the time of the offense for which he was convicted, the ^mandatory sentence of life imprisonment without benefit of parole should be vacated as being unconstitutional. Relator asserts he was fifteen years old at the time of the homicide. Relator argues • that, under Montgomery v. Louisiana, the trial court was required to vacate his sentence and impose a new sentence in compliance with the. parameters set forth by La.Code Crim.P. art. 878.1.

At the hearing on Relator’s motion to correct illegal sentence, the trial court noted it had previously held that the offense date was oh or about November 18, 1993. The victim had been hacked with a machete and shot at least three times. Since Relator’s birthdate is April 30, 1977, Relator was fifteen years old at the time of the offense, and he would have been eighteen at the time of his second trial, conviction, and sentence in January and February of 1996.

The trial court denied defendant’s motion and basically held that any grant of parole should be up to the parole board:

Therefore, in accordance with the reasons listed above[,] I’m gonna deny the combined consolidated Motion to Correct an Illegal Sentence and suggest we take this up with the Department of .. Corrections through the office of Probation and Parole....
And I believe that’s the appropriate place for it to be. This court has no jurisdiction over the ... Department of Corrections. I cannot order them to' do or not do something. I think that’s clear under law unless you know something different.
I don’t think there’s anything .,, that would prohibit the Parole ;Board from hearing it at all. As I said[,] they regularly hear claims for parole[,] and they regularly, grant parole even though I have imposed sentences that are without parole[,3 and they .grant it[,].... so the answer to your question is-1 do. believe this is the exact place that this case needs to be is the Department of Corrections. Again[,] I cannot possibly determine, what is rehabilitative potential is because that generally hasn’t happened. I don’t know where he is right now. I don’t know what he’s done. I don’t know how he is demonstrated ... his rehabilitative potential. That is what .the Parole Board does everyday, every .week, every month, every.year,
JU.-’-’-
I think that’s the appropriate (inaudible) at this time until there’s a statutory scheme, which would allow me to deviate from Revised Statute 14:30.1 because I am not gonna rewrite that statute. I am not allowed to do so. Thank y’all.

Contrary to the trial court’s holding and well before Éelator’s hearing on February 23, 2017, the.Louisiana Supreme Court has decreed how such cases are to be handled:

On remand from the United States Supreme Court, Montgomery v. Louisiana, 577 U.S. —, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), and in light of the Supreme Court’s holding that Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) announced a substantive rule of constitutional law that applies retroactively, we vacate relator’s sentence and remand to the 19th Judicial District Court for resentencing pursuant to La.C.Cr.P. art. 878,1. In re-sentencing, the District Court shall determine whether relator was “the rare juvenile offender whose crime reflects irreparable corruption”, Miller, 132 S.Ct. at 2469, or he will be eligible for parole under the conditions established in La.R.S. 15:674.4(E).
The Supreme Cqurt held in Miller that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. The - Supreme Court found that “[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Miller, 132 S.Ct. at 2469. The Supreme Court clarified in Montgomery, 136 S.Ct. at 734, “that Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption” and life without parole can only be a proportionate sentence for the latter. As noted above, the Supreme Court also determined in Montgomery that Miller announced a substantive rule of constitutional law that applies retroactively.
Henry Montgomery, who had recently turned 17 when he killed Deputy Sheriff Charles Hurt in 1963, was found guilty without capital punishment of murder in 1969 and the sentencing scheme at the time required mandatory life imprisonment without regard to Montgomery’s youth. See La.R.S. 15:409 (1951). The Supreme Court in Montgomery did not venture an opinion as to whether a sentence of life imprisonment without parole eligibility is a disproportionate sentence for the crime Henry Montgomery committed at age 17. Instead, the court determined that Henry Montgomery, and others like him, “must be given the opportunity to show [the] crime did not reflect irreparable corruption”, Montgomery, |fi136 S.Ct. at ‘736, and, if the crime did not reflect irreparable corruption, then he must be afforded “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” as required by Miller, 132 S.Ct. at 2469 (quoting Graham v. Florida, 560 U.S. 48, 74, 130 S.Ct. 2011, 2030, 176 L.Ed.2d 825 (2010)). Therefore, we remand to the District Court to give Henry Montgomery the opportunity to make that showing and to ■ allow the District Court to make that determination.
To implement Miller’s “meaningful opportunity to obtain release” for those juveniles who commit murder but are not found to be irreparably corrupt, the Legislature in 2013 La. Acts 239 enacted La.C.Cr.P. art. 878.1 and La.R.S. 15:574.4(E). Article 878.1 requires the District Court to conduct a hearing “[i]n any case where an offender is to be sentenced to life imprisonment for a conviction 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 ... to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).” La.R.S. 15:574.4(E) then provides the conditions under which any person serving a sentence of life imprisonment for first or second degree murder committed .under the age of 18 can become parole eligible, provided a judicial determination has been made, the person is entitled to parole eligibility pursuant to Article 878.1. This court found in State v. Tate, 12-2763, pp. 19-20 (La.11/5/13), 130 So.3d 829, 843, that Article 878.1 applies prospectively to those offenders who are to be sentenced.
During the 2016 legislative session, legislation was proposed to address those' cases in which persons that committed murder as juveniles and were sentenced to life imprisonment without parole eligibility before Miller was decided, who the Supreme Court determined in Montgomery must be resen-tenced in accordance with the principles enunciated in Miller; However, the Legislature ultimately failed to take further action in the last few moments of the legislative session regarding sentences of life without parole for juvenile homicide offenders. See HB 264 of the 2016 Regular Session. Therefore, in the absence of further legislative action, the previously enacted provisions should be used for the resentencing hearings that must now be conducted on remand from the United States Supreme Court to determine whether Henry Montgomery, and other prisoners like him, will be granted or denied parole eligibility.
Certainly, the legislature is free within constitutional contours to enact further laws governing these resentencing hearings but in the absence of such legislation, this court must provide guidance to the lower courts on the pending cases. See Gillam v. Cain, No. 14-2129 (E.D.La.5/31/16) (slip op.), 2016 WL 3060254 (“the state trial court is ordered to resentence Petitioner in conformity with Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), within ninety (90) days or, in the alternative, to release him from confinement”); Palmer v. Cain, No. 03-2983 (E.D.La.5/5/16) (slip op.), 2016 WL 2594753 (“the state trial court is ordered to resentence him in conformity with Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), within one-hundred twenty (120) days from entry of judgment or release him from confinement.”); Tate v. Cain, No. 14-2145 (E.D.La.4/21/16) (slip op.), 2016 WL 3005748 (“The petitioner shall be released if no such hearing is held within 90 days of this Order.”); Trevathan v. Cain, No. 15-1009 (E.D.La.4/11/16) (slip op.), 2016 WL 1446150 (“the state court is ORDERED to resentence him in conformity with Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), within ninety (90) days or, in the alternative, to release him from confinement”). In providing this guidance, we note that existing legislative enactments are applicable, either directly or by analogy.
In La.C.Cr.P. art. 878.1(B), the Legislature addressed the factors to be considered to determine whether the sentence should be imposed with or without parole eligibility:
At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender’s level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.
This provision does not purport to provide an exhaustive list of considerations but instead authorizes the District Court to consider other factors the court may deem relevant to its determination. Previously, and by way of example, in State v. Williams, 01-1650 (La.11/1/02), 881 So.2d 835, this Court noted that the United States Supreme Court left to the states the task of developing appropriate ways to enforce the constitutional restriction against execution of the intellectually disabled and further noted that Louisiana had not yet directly legislatively implemented Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Absent a legislative implementation of Atkins, the Williams court drew upon other enactments to establish a procedure until the legislature could act. Similarly, although the Legislature was unable to enact legislation during the 2016 Regular Session, it has provided general sentencing guidelines in La.C.Cr.P. art. 894.1, which the District Court may deem relevant in accordance with La.C.Cr.P. art. 878.1(B). Other states have also legislatively implemented Miller. For example, Florida has enumerated the following factors to be considered in sentencing a juvenile to life imprisonment:
|7(a) The nature and circumstances of the offense committed by the defendant.
(b) The effect of the crime on the victim’s family and on the community.
(c) The defendant’s age, maturity, intellectual capacity, and mental and emotional health at the time of the offense.
(d) The defendant’s background, including his or her family, home, and community environment.
(e) The effect, if any, of immaturity, impetuosity, or failure to appreciate risks and consequences on the defendant’s participation in the offense.
(f) The extent of the defendant’s participation in the offense.
(g) The effect, if any, of familial pressure or peer pressure on the defendant’s actions.
(h) The nature and extent of the defendant’s prior criminal history.
(i) The effect, if any, of characteristics attributable to the defendant’s youth on the defendant’s judgment.
(j) The possibility of rehabilitating the defendant.
Fla. Stat. § 921.1401(2) (2014). The District Court here may deem considerations such as these to be relevant as well under the authority - of Article 878.1(B). Finally, the District Court must also be mindful of the Supreme Court’s directive in Miller, 132 S.Ct. at 2469, “to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” In making its ultimate determination regarding parole eligibility, the District Court is further directed to issue reasons indicating the factors it considered to aid in appellate review of the sentence imposed after resentencing. This matter is remanded to the District Court for resentencing consistent with the views expressed here.

Montgomery, 194 So.3d at 606-09.

Moreover, also contrary to the trial court’s ruling, the Louisiana Legislature has codified the parameters for deviating from the La.R,S. 14:30.1 penalty in cases where the offender was a juvenile at the time of the offense:

Is A. In any case where an offender is to be sentenced to life imprisonment for a conviction 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, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender’s level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.

La.Code Crim.P. art. 878.1.

In 2017, the Louisiana legislature enacted an amendment to La.Code CrimJP. art. 878.1 and La; R.S, 15:574.1. Criminal. Procedure art. 878.1 now provides in pertinent part:

A. If an offender is indicted on or after 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, the district attorney may file a notice of intent to seek a sentence of life imprisonment without possibility of parole within one hundred eighty days after the indictment. If the district attorney timely files the notice of intent, a hearing shall be conducted after conviction and prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility. If the court determines that the sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to the provisions of R.S. 15:574.4(E). If the district attorney fails to timely file the notice of intent, the sentence shall be imposed with parole eligibility and the offender shall be eligible for parole pursuant to the provisions of R.S. 15:574.4(E) without the need of a judicial determination pursuant to the provisions of this Article. If the court determines that the sentence shall be imposed without parole eligibility, the offender shall not be eligible for parole.
B. (1) 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 not held pursuant to this Article prior to August 1, 2017, to. determine whether the offender’s sentence should be |flimposed with or without parole eligibility, the district attorney may file a notice of intent to seek a sentence of life imprisonment without the possibility of parole within ninety days of August 1, 2017. If the district attorney timely files the notice of intent, a hearing shall be conducted to determine whether the sentence shall be. imposed with or without parole eligibility. If the court determines that the. sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G). If the district attorney fails to timely file the notice of intent, the offender shall be eligible for parole pursuant to R.S. 15:574.4(E) without the need of a judicial determination pursuant to the provisions of this Article. If the court determines that the sentence shall be imposed without parole eligibility, the offender shall not be eligible for parole.
(2) If an offender was indicted pri- or 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).
(b) If the court determined at the hearing that was held prior to August 1, 2017, that the offender’s sentence shall be imposed without parole eligibility, the offender shall not be eligible for parole.
C. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender’s level of family support, social history, and such other factors as the court may deem relevant. The admissibility of expert witness testimony in these matters shall be governed by Chapter 7 of the Code of Evidence.
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.

2017 La. Acts No. 227, § 2.

hnAll emphasis added.

Louisiana Revised Statutes 15:574.4, as amended effective August 1, 2017 by Act 277 sets forth the following in pertinent part:

E. (1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment for a conviction of first degree- murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) who was under the age of eighteen years at the time of the commission of the offense shall be eligible for parole consideration pursuant to the provisions of this Subsection if a judicial determination has been made that the person is entitled to parole eligibility pursuant to Code of Criminal Procedure Article 878.1 and all of the following conditions have been met:
(a) The offender has served thirty-five years of the sentence imposed.
(b) The offender has not committed any major disciplinary offenses hi the twelve consecutive months prior to the parole hearing date. A -major disciplinary offense is an offense identified as a Schedule B offense by the Department of Public Safety and Corrections in the Disciplinary Rules and Procedures for Adult Offenders.
(c) The offender has completed the mandatory minimum of one hundred hours of prerelease programming in accordance with R.S. 15:827.1.
(d) The offender has completed substance abuse treatment as applicable.
(e) The offender has obtained a GED certification, unless the offender has previously obtained a high school diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability. If the offender is deemed incapable of obtaining a GED certification, the offender shall complete at least one of the following:
(1) A literacy program.
(ii) An adult basic education program.
(iii) A job skills training program.
(f) The offender has obtained a low-risk level designation determined by a validated risk assessment instrument approved by the secretary of the Department of Public Safety and Corrections.
In(g) The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections.
(2) For each offender eligible for parole consideration pursuant to the provisions of this Subsection, the board shall meet in a three-member panel, and each member of the panel shall be provided with and shall consider a written evaluation of the offender by a person who has expertise in adolescent brain development and behavior and any other relevant evidence pertaining to the offender.
(3) The panel shall render specific findings of fact in support of its decision.

La.R.S. 15:574.4(E) (emphasis added).

CONCLUSION

WRIT GRANTED AND MADE PEREMPTORY: Relator filed a writ application with this court seeking supervisory review of the trial court’s February 23, 2017 denial of Relator’s motion to correct illegal sentence seeking relief under State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606. The February 23, 2017 hearing and ruling do not comply with Montgomery, with La.Code Crim.P. art. 878.1 or with La.R.S. 15:574.4(E).

Accordingly, the trial court’s February 23, 2017 ruling denying Relator’s motion to correct an illegal sentence is vacated. The matter is remanded for proceedings consistent with this opinion and in compliance with the requirements of Montgomery, La. Code Crim.P. art 878.1, La.R.S. 15:574.4, and 2017 La. Acts No. 227 (effective August 1, 2017).


text:
    STATE of Louisiana v. $29,940.00 IN U.S. CURRENCY
    17-648
    Court of Appeal of Louisiana, Third Circuit.
    08/31/2017

      John F. DeRosier, District Attorney, Fourteenth Judicial District, Robert S. Kleinschmidt, Jr., Assistant District Attorney, 901 Lakeshore Drive, Suite 600, Lake Charles, Louisiana 70601, (337) 437-3400, COUNSEL FOR PLAINTIFF/RELATOR: State of Louisiana
    Leo Caillier, III, 711 Second Street, Gretna, Louisiana 70053, (504)717-5402, COUNSEL FOR DEFENDANT/RESPONDENT: Lenard Leo
    Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery, Judges.
   CONERY, Judge.

^PETITION FOR SUPERVISORY WRITS

Plaintiff-Relator, the State of Louisiana, seeks supervisory writs from the judgment of the Fourteenth Judicial District. Court, Parish of Calcasieu, the Honorable G. Michael Canaday.presiding, which denied the State’s peremptory exception of no standing and/or motion to strike in this cash forfeiture proceeding. For the following reasons, we reverse the trial court’s ruling and grant the writ and make it peremptory. We hereby grant the State’s perempto: ry exception of no standing and for motion to'strike and dismiss defendant/respondent Lenard Leo’s claim to the $29,940.00 in U.S. currency with prejudice at respondent’s cost.

STATEMENT OF THE CASE

This forfeiture proceeding involves the seizure of $29,940 in cash from the glove box of a Mercedes Benz on or about March 13, 2016. On that date, an officer with the Combined Anti-Drug Task Force executed a traffic stop of the vehicle and identified Lenard Leo (Leo) as the driver. During the stop, the officer observed that Leo’s hands were shaking- and that he started sweating while being questioned. Leo also gave conflicting stories about his travel plans, but indicated that he was not in possession of anything illegal or any large amounts of U.S. currency. Based on his suspicions, the officer deployed his K-9 to examine the vehicle. After the K-9 gave a positive indication of the presence of narcotic odor on the vehicle, the officer executed a search,- which revealed an aftermarket compartment under the passenger seat and a locked glove box, the key for which Leo claimed not to have. The vehicle was then transported to the Combined Anti-Drug Team Office, and a further search revealed that, while the aftermarket compartment was empty, the glove box contained eight large bundles of U.S, currency totaling $29,940.

12That same day, Leo was served with a notice of pending forfeiture for $27,940. A subsequent notice for the remaining $2,000 was later mailed to him. Thereafter, Leo filed two “Claim[s] of Seized Property” pursuant to La.R.S. 40:2610: one for the $27,940 and the other'for the $2,000. On' June 20, 2016, the State filed a peremptory exception of no standing and/or motion to strike based on Leo’s failure to adhere to the provisions of La.R.S. 40:2610. After hearing and taking the matter under advisement, the trial court denied the State’s exception and/or motion finding: “Defendant’s Notice of Filing Claim and Claim of Seized Property meet the minimum requirements set out in [La.R.S.] 40:2610.” The State now seeks review, of the trial court’s judgment. , ,

SUPERVISORY RELIEF

A court of appeal has plenary power to exercise supervisory jurisdiction over trial, courts and. may do so at any time, according to the discretion of the court. When the trial court’s ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that, the merits of .the-application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam). .

ON THE MERITS

To have 'standing, a plaintiff must assert an adequate interest in himself, which the law recognizes, against a defendant having a substantial adverse in-, terest. Howard v. Adm’rs of Tulane Educ. Fund, 07-2224 (La. 7/1/08), 986 So.2d 47. An action can only be brought by a person having a real and actual interest, which he asserts. La.Oode Civ.P. art. 681. A motion to strike is provided for in La.Code |sCiv.P. art. 964, which states, “[t]he court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or . any redundant, immaterial, impertinent, or scandalous matter.” “A court must deny a motion to strike if there is any question of fact or law.” Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 01-345 (La.App. 3 Cir. 6/20/01), 790 So.2d 93, 98, writ denied, 01-2116 (La. 7/26/01), 794 So.2d 834.

In a forfeiture proceeding, an owner or interest holder, such as Mr. Leo, who wishes to file a claim on the property seized must submit an affidavit setting forth all of the following:

(1) The caption of the proceedings as set forth on the Notice of Pending Forfeiture or petition and the name of the claimant.
(2) The address where the claimant will accept mail.
. (3) The nature and extent of the claimant’s interest in the property.
(4) The date, identity of the transfer- or, and. the circumstances of the claimant’s acquisition of the interest in the property.
(6) The specific provision of this Chapter relied on in asserting that the property is not subject to forfeiture.
(6) All essential - facts supporting each assertion.
(7) The specific relief sought.

La.R.S. 40:2610(B); see also State v. $144,-320.00, 12-466 (La. 12/4/12), 106 So.3d 694 (Beers). “The failure to fulfill any of these requirements ... precludes the owner or interest holder from further participation in the forfeiture proceedings.” State v. 2003 Infiniti G35 VIN No. JNKCV51E93M024167, 09-1193, p. 14 (La. 1/20/10), 27 So.3d 824, 834. Moreover, this court has found that, while the answers to some of the questions may be self-incriminating, the statute does not violate any constitutional guarantees, reasoning:

If one does not wish to incriminate himself or subject himself to prosecution for perjury or false swearing, he simply does not file a claim under La.R.S. 40:2610, as the filing of such a claim is not | required. However, if a claim is filed under the statute, it must conform to the statute’s requirements.

State v. $80,000.00 U.S. Currency, 02-224, p. 7 (La.App. 3 Cir. 10/2/02), 827 So.2d 634, 639.

The State herein argues that the trial court erred in denying its exception/motion because Leo, in his affidavit, failed to provide, (1) the nature and extent of his interest in the property, citing La. R.S. 4Q;2610(B)(3); (2) the date, identity of the transferor, and the circumstances of his acquisition of the interest in the property, citing La.R.S. 40:2610(B)(4); and (3) the essential facts supporting each assertion that the property is not subject to forfeiture, citing La.R.S. 40:2610(B)(6). In support, the State cites this court’s decision in State v. $3,356,183,00 U.S. Currency, 04-357 (La.App. 3 Cir. 12/8/04), 894 So.2d 339 (on rehearing), writ denied, 05-1785 (La. 1/13/06), 920 So.2d 242, in which the court affirmed the trial court’s finding that a claim was deficient in that it similarly failed to provide information with regard to subsections (B)(3), (4), and (6). The State also cites the supreme court’s holding in Beers in which the court found two claims likewise failed to comply with subsections (B)(4) and (6) because the affidavits did not provide any details regarding how the claimants acquired the currency or | ¡¡specify all essential facts supporting each assertion, even though one of the claimants attached her tax returns and tax receipts.

Here, the State claims that, rather than indicating the nature and extent of his interest in the currency, Leo simply stated “$27,940.00 on one affidavit and $2,000.00 on the other affidavit.” See Application, p. 5. And though he did state that “[acquisition of the $27,940.00 (and $2,000.00) dollars in US currency was through lawful means, in particular, funds were acquired from the lawful business transactions associated with claimant’s business,” the State argues that this does not specify or provide the details on how Leo acquired the currency through his alleged business transactions. Id. Moreover, Leo did not provide any documentation as to the dates, identity of the transferor, or the circumstances of his acquisition of the property. The State further claims Leo failed to provide any essential facts or even address the requirements of La.R.S. 40:2610(B)(6). Because the claims are clearly deficient, the State argues that its exception must be maintained and that this court must reverse the ruling of the trial court.

|fiIn its exception/motion, the State herein seeks to challenge Leo’s right/standing to pursue his claim in light of his failure to comply with the requirements set forth in La.R.S. 40:2610(B)(8), (4), and (6). As the State recited, the case law from both this court and the supreme court requires a higher degree of specification and detail than that contained in Leo’s claims, which were accepted by the court below. Applying that case law to the affidavits herein, we find that the trial court erred in denying the State’s exception/motion. Because the resolution of this issue will dispose of this matter, we hereby grant the writ, make it peremptory and reverse the trial court’s ruling.

CONCLUSION

WRIT GRANTED AND MADE PEREMPTORY. We find that the trial court erred in denying the Peremptory Exception of No Standing and/or Motion to Strike filed by the State of Louisiana. We find that the Claim of Seized Property filed by the Respondent, Lenard Leo, failed to comply with La.R.S. 40:2610(B)(3), (4), and (6). See State v. $3,356,183.00 U.S. Currency, 04-357 (La. App. 3 Cir. 12/8/04), 894 So.2d 339 (on rehearing), writ denied, 05-1785 (La. 1/13/06), 920 So.2d 242. Therefore, we hereby reverse the trial court’s ruling and enter judgment granting the State’s exception and dismiss Respondent’s claim with prejudice at Respondent’s cost.

      . This court explained:
      Mr. Bodendieck’s purported claim is noticeably deficient with regard to Subsections B(3),(4) and (6), insofar as he states -that he asserts an ownership interest, but fails to identify this interest with specificity. In the "Claim/Affidavit/' Mr. Bodendieck states only that:
      For Purposes of compliance with La.R.S, 40:2610, AFFIANT, DEAN BODENDICK [sic], asserts that he has an ownership and/or possessory interest in approximately $3,351,000.00 in U.S, Currency [the property] that was seized by the Louisiana State Police on or about October 8, 2003. Affiant has learned that a Notice of Pending Forfeiture has been issued asserting that the State of Louisiana intends to pursue forfeiture proceedings against the property pursuant to the Louisiana Seizure and Controlled Dangerous Substances Property Forfeiture Act [La.R.S. 40:2600 et seq.],

        Id. at 347 (alterations in original).

      . The Beers court reasoned:
      As did the district court, we find both affidavits fail to comply with the requirements of La. R.S. 40:2610. Particularly, we agree the affidavits do not satisfy La. R.S. 40:2610(B)(4), which requires a claimant to specify ‘‘[t]he date, identity of the transfer- or, and the circumstances of the claimant’s acquisition of the interest in the property.” Both affidavits claim the money was accumulated savings, earned in part from the sale of automobiles, as evidenced by attached documentation. However, the affidavits do not provide any details regarding how the claimants acquired the alleged savings.
      Brittany did not attach any documentation to her affidavit, despite the reference to documentation made in her affidavit. Tina attached a 2007 W2 form showing earnings of $4,314.50 for the previous year. She also attached tax receipts for six automobiles having a total assessed value of $18,530. We find even if Tina alleged sufficient facts to show the tax receipts were based upon automobile sales yielding 100% profit and her earnings from those sales and other occupation went directly to savings, her explanation for the money would amount to roughly $23,000, despite her claiming 100% ownership of the $144,320 seized from her vehicle. Thus, we find the claims fail to satisfy La. R.S. 40:2610(B)(4). We also find the affidavits do not specify “all essential facts supporting each assertion” that the money was exempt from forfeiture as required by La. R.S. 40:2610(B)(6).

        Beers, 105 So.3d at 702-03.


author: CRAIN, J. HOLDRIDGE, J.,

text:
    Jocelyn BEASLEY v. NEZI, LLC d/b/a Subway
    2016 CA 1080
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 8, 2017

      Christopher L. Whittington, Baton Rouge, Louisiana and Drew Eastman Nordgren, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant Joycelyn Beasley
    John E. Unsworth III, Metairie, Louisiana, Attorney for Defendant/Appellee Nezi, LLC d/b/a Subway
    BEFORE: McDONALD, McClendon, welch, crain, and HOLDRIDGE, JJ.
   CRAIN, J.

12The plaintiff, Joycelyn Beasley, appeals a judgment sustaining an exception of subject matter jurisdiction and dismissing a tort suit she filed against her employer, Nezi, LLC d/b/a Subway. We affirm. ‘

FACTS AND PROCEDURAL BACKGROUND

Beasley allegedly sustained injuries in a slip and fall that occurred at her place of employment, a Subway restaurant owned by Nezi in Baker, Louisiana. Beasley was employed as a manager and primarily assigned to the Baker location. According to her petition, Beasley was on her “day off’ when an employee at the Baker restaurant telephoned to advise her the ice machine was not operating, so no ice would be available for the upcoming lunch crowd. Beasley called the supervisor, who was in Greensburg and said it would be difficult for her to get ice to the Baker location in time for lunch. Beasley decided to obtain the ice herself and deliver it to the restaurant. After arriving with the ice, Beasley walked toward the ice machine to see if she could fix it; however, while walking towards the machine, she slipped and fell in a puddle of water.

Beasley sued Nezi in tort, alleging her co-employees allowed water from a leaking water heater to accumulate on the floor, which created an unreasonable risk of harm..In an apparent effort to avoid the exclusive remedy of Louisiana’s Workers’ Compensation Act (the Act), Beasley alleged she was not within the course and scope of her employment at any time on the day of the accident. Rather, according to the petition, she delivered the ice and checked on the machine. “[a]s a favor and purely gratuitously,” without compensation and without being subject to anyone’s direction or control.

Nezi answered the. suit and filed an exception of lack of subject matter jurisdiction, asserting Beasley’s exclusive remedy was under the Act. After a I shearing on the exception, the district court found the accident occurred during the course of Beasley’s employment, stating in oral reasons that Beasley’s.actions were.for the “benefit of the company” and “the necessities of the business require[d] that she be there and do that at the time [the accident] occurred.” The district court sustained the exception and signed a judgment dismissing all claims. Beasley appeals.

DISCUSSION

Jurisdiction is the legal power and authority of a court to hear and determine an action of the parties and to grant the relief to which they are entitled. La. Code Civ. Pro. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. See La. Code Civ. Pro. art. 2.

Subject to certain exceptions not relevant to this case, original jurisdiction over all claims arising under the Act is vested exclusively with workers’ compensation judges. See La. Const. Art. V, § 16(A); La. R.S. 23.1310.3F; Bracken v. Payne & Keller Co., Inc., 15-1760 (La. App. 1 Cir. 8/10/16), 199 So.3d 1164, 1168, writ denied, 16-1791 (La. 11/29/16), 211 So.3d 389. The Act applies to actions by an employee against her employer for injuries sustained in an accident “arising out of’ and “in the course of’ her employment. See La. R.S. 23:1031A and 1032A(l)(a). These dual requirements are distinct but cannot be considered in isolation from each other; a strong showing in one may compensate for a relatively weak showing in the other. See Guillory v. Interstate Gas Station, 94-1767 (La. 3/30/95), 653 So.2d 1152, 1154.

The principal criteria for determining “course of employment” are time, place, and employmént activity. Mundy v. Department of Health and Human Resources, 593 So.2d 346, 349 (La. 1992). An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of her duties during work hours, either on the employer’s premises or at other places where employment activities take the employee. McLin v. Industrial Specialty Contractors, Inc., 02-1539 (La. 7/2/03), 851 So.2d 1135, 1140. The requirement that an employee’s injury “arise out of’ her employment relates to the character or origin of the injury suffered by the employee and whether the injury was incidental to the employment. McLin, 851 So.2d at 1140. An accident arises out of employment if the employee was engaged about her employer’s business and the conditions or obligations of the employment cause the employee in the course of employment to be at the place of the accident at the time the accident occurred. McLin, 851 So.2d at 1142.

The Act’s potential application to the present claims was presented for adjudication through a declinatory exception of subject matter jurisdiction. See La. Code Civ. Pro. art. 925A(6). Where the lack of subject matter jurisdiction is not apparent on the face of the petition, the burden is on the defendant to offer evidence in support of the exception. See La. Code Civ. Pro. art. 930; Barringer v. Robertson, 15-0698 (La. App. 1 Cir. 12/2/15), 216 Sp.3d 919, 924, writ denied, 16-0010 (La. 2/26/16), 187 So.3d 1004. If, as in the present case, no evidence is introduced, the court must accept the allegations of the petition as true for the purpose of ruling on the exception. See State v. Illinois Central Railroad Company, 04-1789 (La. App. 1 Cir. 12/22/05), 928 So.2d 60, 68; Banks v. Carl Ott Poles & Piling, Inc., 440 So.2d 803, 805 (La. App. 1 Cir. 1983), writ denied, 444 So.2d 1244 (La. 1984). However, this rule applies only to properly-pled material allegations of fact; the court is not required to accept conclusory allegations or allegations of law as true for purposes of the exception. See Kirby v. Field, 04-1898 (La. App. 1 Cir. 9/23/05), 923 So.2d 131, 135, writ denied, 05-2467 (La. 3/24/06), 925 So.2d 1230. The determination of whether a district court has subject matter jurisdiction over a case is subject to de novo review. In re D.C.M., 13-0085 (La. App. 1 Cir. 6/11/13), 170 So.3d 165, 169, writ denied, 13-1669 (La. 7/17/13), 118 So.3d 1102.

Citing the allegations of her petition and Nezi’s failure to introduce any evidence, Beasley maintains her injury did not arise out of or occur in the course of her employment because (1) the accident occurred when she was not scheduled to work, (2) she was not obligated by her employment to take any of the actions she took, and (3) she was not being paid at the time of the accident. However, these factors alone are not necessarily determinative.

The allegations of the petition establish that Beasley is employed as a manager for the defendant, went to her place of employment to assist with an employment-related issue (a broken ice machine), and, while there, was injured when she slipped and fell walking to the ice machine. The origin of her injury is employment rooted, regardless of whether she was being directly compensated at the time for her efforts. The allegedly “gratuitous” nature of her efforts does not change the fact that the reason she was called to respond to the ice machine problem was because she was a manager at the restaurant. Her responsive acts of calling the supervisor, obtaining and delivering ice to the restaurant, agreeing to look at the ice machine, and traversing the area where her accident occurred, are inextricably linked to her employment as a Subway manager. Beasley’s accident was directly related, by time and place, to her employment.

| (¡For these reasons, we find the accident arose out of and occurred in the course of Beasley’s employment with Nezi. Her claims against her employer are thus governed by the Act. See Mitchell v. Industrial Fill Materials, Inc., 02-2021 (La. App. 1 Cir. 7/2/03), 859 So.2d 36, 39 (although evidence suggested accident occurred while an employee was voluntarily inspecting or attempting to fix his employer’s dump truck, Act applied to the claims against his employer where accident occurred on the employer’s premises and the employee drove the truck as part of his employment); Maurice v. Orleans Parish School Board, 295 So.2d 184, 186 (La. App. 4 Cir. 1974) (Act applied to claim by substitute teacher against school board arising out of an accident that occurred while the plaintiff was an uncompensated volunteer at a school sponsored activity). The district court correctly sustained Nezi’s exception of lack of subject matter jurisdiction and dismissed Beasley’s claims.

CONCLUSION

The judgment of the district court is affirmed. All costs of this appeal are assessed to the plaintiff, Joycelyn Beasley.

AFFIRMED.

Welch, J. dissents for reasons assigned by Judge Holdridge.

Holdridge J. dissents for reason assigned.

HOLDRIDGE, J.,

dissents.

|J respectfully dissent in this matter and would reverse the judgment of the district court sustaining the exception of lack of subject matter jurisdiction and remand this for further proceedings.

“Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La. C.C.P. art. 2. The subject matter jurisdiction of district courts is set forth by La. Const, art. V, § 16(A)(1) as follows:

Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a dis-triet court shall have original jurisdiction of all civil and criminal matters,

(emphasis added.)

Thus, while district courts generally have original jurisdiction over all civil matters, an exception exists in the case of worker’s compensation matters when the law so provides. Taylor v. Hanson North America, 2008-2282 (La. App. 1 Cir. 8/4/09), 21 So.3d 963, 967. The jurisdiction granted by law to OWC judges is set forth in La. R.S. 23:1310.3(E).

The Louisiana Supreme Court has made it clear that the grant of jurisdiction in La. R.S. 23:1310.3(E) is quite specific and provides for Office .of Workers’ Compensation jurisdiction only for “claims or disputes arising out of’ the Workers’ Compensation Act. Broussard Physical Therapy v. Family Dollar Stores, Inc., 2008-1013 (La. 12/2/08), 5 So.3d 812, 817. Moreover, exceptions to the | ¡.general rule that district courts are vested with original jurisdiction in civil matters must be narrowly construed. TIG Insurance Company v. Louisiana Workers’ Compensation Corp., 04-2608 (La. App. 1 Cir. 6/10/05), 917 So.2d 26, writ denied, 2005-1821 (La. 1/27/06), 922 So.2d 553.

As the majority correctly notes, under the Workers’ Compensation Act, employers are responsible for compensation benefits to. employees only when the injury results from an accident “arising out of and in the course of his employment.” La. R.S. 23:1031; McLin v. Industrial Specialty Contractors, Inc., 2002-1539 (La. 7/2/03), 851 So.2d 1135, 1139. Since Nezi had the burden of proof on the exception of lack of subject matter jurisdiction, it had the burden of proving that the. injury to the plaintiff arose out of and was in the course of her employment. Otherwise, the district court has subject matter jurisdiction.

The burden of proof is on Nezi to prove the. exception of lack of subject matter jurisdiction, not on the plaintiff to prove that the worker’s compensation court does not have jurisdiction. When a district court decides a jurisdictional issue without a contradictory hearing, the burden on the non-moving party is relatively slight and the allegations of the petition and all reasonable inferences from the record are to be drawn in favor of the non-moving party. See, e.g., de Reyes v. Marine Management and Consulting Ltd., 586 So.2d 103, 109 (La. 1991); Ruppert v. George Kellett & Sons, Inc., 08-182 (La. App. 5 Cir. 9/30/08), 996 So.2d 501, 507. If the well-founded allegations of the petition are subject to more than one interpretation or do not clearly show the mover is entitled to a judgment, all reasonable inferences must bé made in favor of the plaintiff and the' exception must be denied. Any defenses, raised by exception or motion, other than the exception of no cause of action and motion for summary judgment, must be proven by evidence introduced at a hearing, unless the allegations of the petition | soverwhelmingly prove the moving party is entitled to a judgment in its favor. Otherwisé, the moving party must introduce appropriate evidence, whether testimonial or documentary, át a hearing where the’ trial court performs its function of weighing the evidence, making credibility detér-minations and'making factual findings. See Lexington Ins. Co. v. Tasch, Inc., 12-339 (La. App. 5 Cir. 11/27/12), 105 So.3d 950, 955.

After reviewing the allegations of the petition, Nezi, did not meet its burden of proving that Ms. Beasley’s accident arose out of and in the course of her employment. While. Ms. Beasley was at her place of employment when she fell, she, was not there during her working hours and she slipped and fell in a puddle “in the walking area that [led] to the ice machine.” Nezi did not prove that Ms. Beasley was required to be at Subway, and it also did not prove that the accident happened in an area only for employees. Therefore, it did not prove that Ms. Beasley was engaged in the performance of work duties during work- hours. Ms. Beasley alleged that her activity in bringing ice to Subway and trying to fix the ice machine was gratuitous; that she was not required to go to Subway to bring ice and try to repair the ice machine; that she was not paid for her time there; and that she was not subject to the control of her employer. Nezi introduced no evidence whatsoever to contradict these assertions. Therefore, all reasonable inferences must be made in favor of the plaintiff to maintain subject matter jurisdiction with the district court. Furthermore, Nezi also did not prove that Ms. Beasley’s accident arose out of her employment because it did not prove that “the conditions [or] obligations of the employment cause[d] the employee in the course of employment to be at the place of the accident at the time the accident occurred.” See McLin, 851 So.2d at 1142. Since the defendant failed to carry its evi-dentiary burden of | ¿proof at the hearing on the exception, the district court erred in sustaining the exception of lack of subject matter jurisdiction.

In granting the exception of lack of subject matter jurisdiction, the district court issued oral reasons to support its ruling with which it appears the majority has agreed. The district court in its reasons inferred that the water heater that produced the puddle was in the employee area and also inferred that Ms. Beasley as a shift manager was expected to address all issues with the business to make sure it kept going, such as attempting to repair an inoperable ice machine on her day off. However, because Nezi did not offer’ evidence to support its exception, the district court and this court are limited to considering the allegations of the petition, which must be accepted as true. See Morrison v. H.B. Mitchell Const. Co., 369 So.2d 1102, 1103 (La. App. 1 Cir. 1979); These inferences by the district court, while being part of the attorneys’ argument, were not supported by-allegations in the petition, and the district court and this court erred in relying on them to find that Ms. Beasley was in the course and scope of her employment at the time of her accident. See Clark v. City of Hammond, 2000-0673 (La. App. 1 Cir. 8/10/00), 767 So.2d 882, 883 n.1; Morrison, Id.

The two cases cited by the majority are totally irrelevant to the facts of our case. Mitchell v. Industrial Fill Materials, 02-2021 (La. App. 1 Cir. 7/2/03), 859 So.2d 36, 39; Maurice v. Orleans Parish School Board, 295 So.2d 184, 186 (La. App. 4 Cir. 1974). Both cases were decided after full trials on the merits, and in both cases, the plaintiffs were seeking worker’s compensation and the employer-defendants argued that worker’s compensation did not apply. In fact, in the Mitchell case, the worker’s compensation judge granted a directed verdict stating | sthe plaintiff was not in the course and scope of his employment. Yet Mitchell is being relied upon for the proposition that the district court does' not have subject matter jurisdiction based on the allegations in the plaintiffs petition, despite the fact that the worker’s compensation judge in Mitchell after hearing the evidence, found it was clear that the employee was not covered by worker’s compensation. Moreover, in Mitchell this court found that the plaintiff was in the course and scope of his employment partly because if the truck he was inspecting or repairing did not work the next day (when plaintiff was scheduled to work), he could not perform his duties as a dump truck driver and would not be paid; there are no allegations in the present case that Ms. Beasley needed to repair the ice machine to be able to work during her regularly scheduled work hours. Maurice involved a substitute teacher injured while performing unpaid extra work after school hours for a school club; the teacher regularly helped, after school and had obtained permission from the school principal to assist the club. Ms. Beasley’s action in bringing ice to the Subway restaurant and walking toward the ice machine to see if she could fix it was a one-time gratuitous act, according to the allegations in the petition. The majority fails to cite one case where a onetime gratuitous act by an employee entitles that employee to worker’s compensation coverage.

The majority is now holding, based only upon the allegations in the petition, that all employees gratuitously deciding to help a co-employee on their days off are covered by worker’s compensation and that the district court lacks, subject matter jurisdiction to even hear evidence in such a case. The majority errs in finding non-determi: native of the worker’s compensation issue that the fact that Ms. Beasley’s accident occurred when she was not scheduled to work or being paid and that she was not required to take any of the actions she took. The majority is also improperly inferring, as did the district court, that as a manager, Ms. Beasley’s | reactions under these circumstances are employment-related. These inferences are improper on an exception of lack of subject matter jurisdiction and this matter would more properly be determined based upon evidence and testimony, as was true in the cases upon which the majority relies.

      . When evidence is introduced at the trial of the exception, relevant factual findings are governed by the manifest error standard of review. See Barringer, 216 So.3d at 924. Although Beasley attached an affidavit to her opposition memorandum, the affidavit was not introduced into evidence and is not a part of the reviewable record. See Dupre Logistics, LLC v. Bridges, 10-1071, 2010 WL 5479723 (La. App. 1 Cir. 12/22/10).

      . Beasley relies on Hebert v. Jeffrey, 94-1230 (La. App. 1 Cir. 4/7/95), 653 So.2d 842, and Lewis v. Bellow, 212 So.2d 540 (La. App. 3 Cir. 1968). Both cases are factually distinguishable. In Hebert, an employee was injured in an automobile accident while traveling to a job site prior to work. The employee was not paid for his travel time. Finding the Act inapplicable, the court found no reason to deviate from the general rule that an employee traveling to or from work is not in the course of his employment. Hebert, 653 So.2d at 844-45. In Lewis, the plaintiff was injured while gratuitously cutting a tree limb for the defendant. The court found no employer-employee relationship between the parties. Lewis, 212 So.2d at 543. Here, the employment relationship between Beasley and Nezi is set forth in her petition and is not disputed.

      . In no way does the denial of the exception of lack of subject matter jurisdiction prevent the defendant from filing an exception of no right of action or a motion for summary judgment wherein proof, either testimonial or documentary, may be introduced to prove that the plaintiff was in the course and scope of her employment.


author: WELCH, J., CRAIN, J.,

text:
    Melvin and Anjeanette ADOLPH v. LIGHTHOUSE PROPERTY INSURANCE CORPORATION
    2016 CA 1275
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: SEPTEMBER 08, 2017

      Bruce C. Betzer, Michelle V. Schmidt, Metairie, LA, Attorneys for Plaintiffs/Appellants Melvin and Anjeanette Adolph
    James W. Hailey, III, Evan J. Bergeron, New Orleans, LA, Attorneys for Defendant/Appellee Lighthouse Property Insurance Corporation
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   |2The plaintiffs, Melvin and Anjeanette Adolph, appeal a motion for summary judgment granted in favor of the defendant, Lighthouse Property Insurance Corporation, dismissing their claim with prejudice. The plaintiffs also appeal the trial court’s judgment granting Lighthouse’s motion to strike the affidavit and appendices of the plaintiffs’ expert from the record. For the following reasons, the judgment of the trial court is reversed in part, vacated in part, and remanded for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

In October or November of 2012, the plaintiffs noticed a leaking toilet in the hallway bathroom of their home. Mr. Adolph contacted' a plumber who repaired the toilet by replacing the flange and wax ring on the toilet. In February of 2013, Mr. Adolph noticed an odor in the bedroom across from the hallway bathroom and discovered that the odor was coming from the closet in the bedroom. Mr. Adolph contacted DOW Disaster Restoration, a business providing restoration services for water and mold related issues. On February 27, 2013, Scott Dowdy, owner and mitigation specialist with DOW, inspected the plaintiffs’ home and rendered a proposal for water mitigation.

On February 28, 2013, the plaintiffs made a claim to their insurance company, Lighthouse Property Insurance Corporation, for the damage allegedly sustained to their home as a result of the leaking'toilet. On March 8, 2013, Lighthouse sent an adjuster to'the plaintiffs’ home to assess the damage. Upon inspection, the adjuster found no evidence of a toilet léak in the plaintiffs’ home because all of the laminate flooring where the leak had allegedly occurred had been removed by Mr. Adolph. The adjuster conducted a moisture test and found that all of the remaining laminate flooring in the plaintiffs’ home had an elevated moisture |slevel between the floor and the foundation of the home. The adjuster concluded that the damage to , the plaintiffs’ home was caused by “the foundation [of the home] ... sweating excessively, thereby causing moisture to seep through the foundation and lodge beneath the floor.” ■

On April 4, 2013, Lighthouse hired an engineer to • inspect the plaintiffs’ home. The engineer found that the floors of the plaintiffs’ home were not level and concluded that a leaking toilet in the hallway bathroom could not have caused the excess moisture or water damage to the nearest bedroom because the bedroom where the plaintiffs reported the water damage was located upslope while the bathroom with the alleged toilet leak was located , at a downslope. Thereafter, Lighthouse denied the plaintiffs coverage.

On November 25, 2014, the plaintiffs filed a petition for damages against Lighthouse alleging that the leaking toilet in their home caused Severe mold and fungi growth rendering the floor in their home useless and necessitating replacement. Lighthouse filed an answer contending that the plaintiffs’ claim fell outside the scope of coverage and that they were not entitled to compensation.

On April 6, 2016, Lighthouse filed a motion for summary judgment alleging that the plaintiffs’ claim was not covered under their Lighthouse policy and that the alleged damages could not have been caused by a leaking toilet. On May 31, 2016, Mr. Dowdy re-inspected the plaintiffs’ home and performed an elevation survey.

Thereafter, on June 8, 2016, the plaintiffs filed a memorandum in opposition to Lighthouses’ motion for summary judgment arguing that Lighthouse did not | ¿make an appropriate effort to investigate the facts and circumstances surrounding the plaintiffs’ claim because its experts did not make a reasonable effort to ascertain a full investigation of the entire area of damage. The plaintiffs also submitted the affidavit, curriculum vitae, and report of Mr. Dowdy. The curriculum vitae of Mr. Dowdy stated in part that he completed over 300 water intrusion and mitigation projects. In his affidavit, Mr. Dowdy determined that while the floors were not level in the plaintiffs’, home, “a leaking toilet in the bathroom more likely than not caused excess moisture or water damage to the nearest bedroom and flooring of the [plaintiffs’] house.”

On June 20, 2016, Lighthouse fax-filed its reply memorandum in support of its motion for summary judgment, which incorporated a motion to strike the affidavit and report of the plaintiffs’ expert, Mr. Dowdy. (The original of that faxed filing was entered into the record on June 24, 2016.) The motion stated that Mr. Dowdy was not qualified to offer an opinion in the matter because he had no experience, training, or specialized knowledge in the fields of engineering, fluid | ^mechanics, hydrodynamics, water flow, topography, geo-matics, or any similar scientific field.

On June 23, 2016, the trial court held a hearing on Lighthouses’ motion for summary judgment and motion to strike. Following arguments from both parties, the trial court granted Lighthouses’ motion to strike, finding that Mr. Dowdy was not competent to testify as to the opinion in his report. The plaintiffs’ counsel'Objected to Lighthouse’s motion to strike. The trial court noted the objection for the record. The trial court then heard arguments from the parties on Lighthouses’ motion for summary judgment. The trial court granted Lighthouses’ motion for summary judgment, finding that there were no genuine issues of material fact and' that Lighthouse was entitled to summary judgment as a matter of law. On July 11, 2016, the trial court signed a judgment in accordance with its oral ruling, granting Lighthouses’ motion for summary judgment and striking the affidavit of the plaintiffs’ expert, Mr. Dowdy, and dismissing with prejudice the plaintiffs’ claim. The plaintiffs now appeal.

DISCUSSION

In their first assignment of error, the plaintiffs argue that the trial court abused its discretion in granting Lighthouses’ motion to strike the affidavit and report of the plaintiffs’ expert, Mr. Dowdy, because he was. unqualified. The plaintiffs further argue that the hearing on Lighthouses’ motion to strike was their first and only opportunity to argue that Mr. < Dowdy was qualified to render an opinion regarding the various elevation levels in the plaintiffs’ home.

Lighthouse counters that the trial court complied with La. C.C.P. arts. 966 and 967 when granting its motion' to strike because the trial court held a hearing and determined that Mr. Dowdy’s qualifications did not show that he was competent to testify as to the complex and technical opinion in his affidavit. ^Moreover, Lighthouse argues that the motion to strike was properly granted by the trial court because the plaintiffs failed to request a continuance or request the option to supplement, the record. See La. C.C.P. arts. 967(A) and 1601.

This case raises the issue as to whether the “Motion to Strike” contained in Lighthouses’ reply memorandum is the proper pleading to challenge the qualifications of the plaintiffs’ expert, Mr. Dowdy. Under La. C.C.P. art. 966(D)(2), “[a]ny objection to a document shall be raised in a timely filed opposition or reply memorandum.” Comment (k) of La. C.C.P. art. 966 states that “[966(D)(2)'] changes prior law by specifically removing the motion to strike as a means of raising an objection to a document offered by an adverse party in support of or in opposition to a motion for summary judgment and [this article] does not allow a party to file that motion.” (Emphasis added.) The intent of Article 966(D)(2) was to make it mandatory that any objection to a document filed in support of or in opposition to a motion for summary judgment must be objected to in a timely filed opposition or reply memorandum and not in a “motion to strike” or other pleadings.

Filing a “Motion to Strike” in a reply memorandum is not proper. See La. C.C.P. art. 966, comment (k). The filing of such a motion in a reply memorandum would necessarily allow a party an opportunity to have a contradictory hearing and introduce evidence even though La. C.C.P. art. 966(B)(3) specifically states that “[n]o additional documents may be filed with [a] reply memorandum.”

|7Any challenge to the qualifications or methodology of the plaintiffs’ expert should be filed in a pre-trial motion in accordance with La. C.C.P. art. 1425(F). Louisiana Code of Civil Procedure article 1425(F) sets out in detail the procedure which should be followed in order to challenge the qualifications of an expert or the methodology used by the expert in reaching his opinion. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Cheairs v. State ex rel. Department of Transportation & Development, 03-0680 (La. 12/3/03), 861 So.2d 536, 541. In the Louisiana Supreme Court case Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226, 235, the court held that expert opinion testimony can be considered on a motion for summary judgment, stating, “[a]l-though it is true that an expert is subject to cross examination at a deposition, affidavits are subject to challenge as well, by way of a Daubert hearing, a motion to strike, or counter affidavits,” However, the revision to Article 966 eliminated the motion to strike in summary judgment proceedings and further provided that no counter affidavits may be filed in connection with a reply memorandum. Therefore, the only proper procedure to challenge the qualifications of an expert who has prepared an affidavit in opposition to a motion for summary judgment is pursuant to La. C.C.P. art. 1425, which provides guidelines and a procedure for determining the admissibility of expert opinion.

| ^Although Lighthouse may not challenge the qualifications of the plaintiffs’ expert in its motion to strike, we will consider the objection raised in its reply memorandum as to whether Mr. Dowdy’s affidavit should be admitted or considered by the trial' court. From the plaintiffs’ expert’s affidavit and curriculum vitae, it appears that Mr. Dowdy has handled over three hundred water intrusion cases. From Mr. Dowdy’s work experience, it is reasonable to conclude that his affidavit complies with La. C.C.P. art. 967(A) in that he completed an elevation survey in the plaintiffs home, and that he was competent to testify as to the cause of the plaintiffs alleged water damage.

Since the plaintiffs’ experts’ affidavit meets the requirements of La. C.C.P. art. 967(A), and a motion to challenge the qualifications of the plaintiffs’ expert under La. ■ C.C.P. art. 1426(F) was not filed, this court must accept the affidavit of Mr. Dowdy. The law is well settled that the trial court cannot make credibility determinations, evaluate testimony, or weigh conflicting evidence in making its decision whether to grant or deny a motion for summary judgment. Pumphrey v. Harris, 12-0405 (La. App. 1 Cir. 11/2/12), 111 So.3d 86, 91. Simply claiming that an expert is not qualified without any facts or competing expert opinion is insufficient. Hayne v. Woodridge Condominiums, Inc., 06-923 (La. App. 5 Cir. 4/11/07), 967 So.2d 804, 809. In this matter, Lighthouse did not offer any evidence to support its position that Mr. Dowdy was not competent to testify other than the argument of its counsel at the hearing on the motion for summary judgment.

| ¡/Therefore, we find that it was an abuse of the trial court’s discretion to rule on the qualifications of the plaintiffs’ expert without the filing of a proper motion by Lighthouse, without setting a contradictory hearing, without any evidence from Lighthouse except the argument of its counsel at the motion for summary judgment hearing, and without giving the plaintiffs an opportunity for appellate review after the trial court’s ruling on Lighthouses’ motion. We also find that the trial court abused its discretion in not admitting the affidavit of Mr. Dowdy and granting summary judgment in favor of Lighthouse. Accordingly, we will reverse the judgment of the trial court granting Lighthouse’s motion to strike the affidavit of Mr. Dowdy and vacate the motion for summary judgment in favor of Lighthouse.

CONCLUSION

For the reasons set forth above, we will reverse the judgment of the trial' court granting Lighthouses Property Insurance Corporations’ motion to strike the affidavit of Mr. Dowdy. The portion of the trial court’s judgment granting summary judgment in favor of Lighthouse Property Insurance Corporation and dismissing the plaintiffs’ claims is vacated, and we remand this matter to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to Lighthouse Property Insurance Corporation.

REVERSED IN PART; VACATED IN PART; REMANDED.

Welch J. concurs with reasons

Crain, J. concurs and assign reasons.

WELCH, J.,

concurs.

hi respectfully agree with the result reached by the majority opinion—that the trial court abused its discretion in excluding the affidavit of the plaintiffs’ exp'ért and that the judgment granting the summary judgment should be vacated. However, I do not agree with other statements and conclusions reached by the majority.*

First and foremost, I believe that the defendant’s reply memorandum challenging the plaintiffs expert’s affidavit was untimely, and therefore, the defendant’s objection to that affidavit was not properly before the trial court. See La. C.C.P. art. 966(D)(2)(providing that the court' “shall consider any documents [filed in support of or in opposition to the motion for summary judgment] to which no objection is made” and that “[a]ny objection to a document shall be raised in a timely filed opposition or reply memorandum.” (Emphasis added)). Louisiana. Code of Civil Procedure article 966(B)(3) requires that the reply memorandum “shall be filed and served ... not less than five days prior to the hearing on the motion,” In computing the period of time allowed by law, if the period of time is less than seven days, then legal holidays are not to be included in the computation of time. See La. C.C.P. art 6059; see also La. C.C.P. art. 966, comments—2015, comment (e). In this case, the record reveals that the hearing in this matter was scheduled for June 23, 2016; hence, the reply memorandum was due not less than five days (not including legal holidays) from that date, which was June 16,2016. As such, the defendant’s fax filing of the reply memorandum on June 20, 2016-—12three days prior to the hearing— rendered it untimely. Therefore, the trial court should not have considered - the defendant’s objection to the plaintiffs expert affidavit and should have considered the plaintiffs expert’s affidavit in opposition to the motion for summary judgment. See La. C.C.P. art. 966(D)(2); As such, the trial court abused its .discretion in excluding the affidavit of the plaintiffs’ expert.

By addressing the merits of the objection to the plaintiffs expert’s affidavit; the majority has determined (implicitly) that the reply memorandum was timely, .presumably on the basis that five days prior to the hearing was June. 18, 2016, which was a Saturday (and a legal holiday), and therefore under La. C.C.P. art. 966(B)(4), the'reply memorandum was timely because it was filed the next day that was not a legal holiday—June. 20, 2016. However, as previously set forth, legal holidays are not included in the computation of the time period within which to file the reply memorandum and the majority’s inclusion of legal holidays in the calculation of the time period to file the reply memorandum ignores the express provisions of La. C.C.P. art. 5059. See also La. C.C.P, art. 966, comments—2015, comment (e). In addition, the majority’s determination suggests that La. C.C.P. ,art. 5059 is applicable to the computation of the applicable time period for filing the motion for summary judgment and the opposition, but not to the reply memorandum, However, such an interpretation would require us to read language into La. C.C.P. art. 966(B)(3) to the effect of “including legal holidays” when such language was not included or intended by our legislature. Furthermore, there is no language in La. C.C.P. art. 966(B)(4) to suggest that the provisions of La. C.C.P. art. 5059 is not applicable to the reply memorandum or that the calculation of the time period within which to file a reply memorandum should include legal holidays. Rather, La. C.C.P. art. 966(B)(4) simply provides a rule that if the deadline for filing and serving the motion, opposition, or reply falls on a legal holiday, then it is timely if it is filed and served no later than the next day that is |Rnot a legal holiday; such language neither abrogates La. C.C.P. art. 5059 nor expressly provides that the calculation of time for filing the reply memorandum should include legal holidays. As such, the majority has erred in its determination that the defendant’s reply memorandum was timely and that a review of the merits of the defendant’s objection to the plaintiffs expert’s affidavit was warranted.

Nevertheless, although, the defendant’s objection to the plaintiffs expert’s affidavit was untimely, I want to specifically point out that I disagree with the majority’s determination that the objection was not properly pled or raised. In my opinion, the objection was sufficiently pled regardless of what the defendant’s may have “captioned” that objection. As set forth in the majority opinion, the defendant’s filed, a reply memorandum and that memorandum contained1 a “Motion to Strike” the plaintiffs expert’s affidavit. Citing La. C.C.P. art. 966, comments—2015, comment (k), the majority has correctly noted that the motion to strike was specifically removed as a means to raise an objection to a document offered by an adverse party in support of or in opposition to a motion for summary judgment and that an objection to ■ a document must be set forth in a timely filed opposition or reply memorandum. See La. C.C.P. art.- 966(D)(2). However, a review of the defendant’s “Motion to Strike” reveals that it was not a motion to strike in accordance with La. C.C.P-. art. 964 or 971 and it did not comply with Louisiana District Court Rules—Rule 9.9; rather, the defendant’s “motion” was simply an objection to the affidavit of the plaintiffs expert in accordance with La. C.C.P, art. 966(D)(2). It is well-settled that a pleading’s nature is determined by its substance, not its caption. See La. C.C.P. art. 865; Revere v. Reed, 95-1913, p. 2 n. 1 (La. App. 1st Cir. 5/10/96), 675 So.2d 292, 297 n. 1; Fussell v. Reed, 95-0398, p. 2 n 1 (La. App. 1st Cir. 11/9/95), 664 So.2d 1214, 1215 n. 1. Therefore, regardless of the defendant’s decision to, caption the objection to the plaintiffs expert’s affidavit |4as a “Motion to Strike,” the substance of the objection was set forth in the reply memorandum; hence, the pbjection was sufficiently pled (albeit untimely).

Lastly, I agree with the majority that any challenge to the qualifications'or methodology of the plaintiffs expert should be filed in a pre-trial motion in accordance with La. C.C.P. art. 1425(F). I also agree with the majority’s ultimate determination that in the absence of a motion (and hearing) in accordance with La. C.C.P. art. 1425(F), when an objection to an affidavit in support of or in opposition to a motion for summary judgment is made in accordance with La. C.C.P. art. 966(D)(2), the only issue to be determined is whether that affidavit is in compliance with La. C.C.P. art. 967. While the majority determines, and I agree, that the record herein establishes that the plaintiffs expert’s affidavit is in compliance with La. C.C.P. art. 967, the majority also relies on the fact that the defendant failed to offer any evidence to support its position that the plaintiffs expert was -not competent to testify. I would expressly point out that such evidence would not have changed the outcome because in making the determination as to whether an affidavit is in compliance with La. C.C.P. art. 967, the trial court is bound by the same rules governing summary judgment, such as the inappropriateness of weighing opinion testimony or of evaluating the credibility of witnesses. See MSOF Corp. v. Exxon Corp., 2004-0988 (La. App. 1st Cir. 12/22/05), 934 So.2d 708, 716 n.9, writ denied, 2006-1669 (La. 10/6/06), 938 So,2d 78. In this case, there was no challenge to the plaintiffs expert in accordance with La. C.C.P. art. 1425(F); the plaintiffs expert’s affidavit on its face met the requirements of La. C.C.P. art. 967; therefore, the affidavit was admissible.

Thus, I respectfully concur with the majority opinion.

CRAIN, J.,

concurs.

|,I agree the trial court abused its discretion in excluding the affidavit of plaintiffs’ expert, and the judgment granting summary judgment in favor of the defendant should be vacated. However, I arrive at those conclusions for different reasons and do not subscribe to the majority’s analysis.

The summary judgment procedure specifically requires that expert affidavits “affirmatively show that the affiant is competent to testify to the matters stated therein.” La. Code Civ. Pro. art. 967A.“ The summary judgment procedure further specifies that “[t]he court may 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,” and provides that objections to any documents “shall be raised in a timely filed opposition or reply memorandum.” La. Code Civ. Pro. art. 966D(2). Nothing in either Independent Fire or the current version of Article 966 prohibits an objection to the admissibility of an affidavit based upon the competence of an alleged expert from being asserted in a reply memorandum. Rather, well-settled princi-pies of statutory construction and the reading of these provisions in pan mate-ria require the conclusion that a party’s objection to an affidavit on the basis that the affiant is not competent to testify to the matters stated therein must be raised in a timely filed opposition or reply memorandum.

| {.Incorporated in Lighthouse’s reply memorandum is the heading “Motion To Strike Plaintiff’s Exhibit A.” The memorandum concludes by asking that the affidavit, report, and CV of the alleged expert be “stricken” from the record and not considered by the court. The characterization of a pleading by the litigant is not controlling and the duty of the courts is to look through a pleading’s caption to ascertain its substance and do substantial justice to the parties. See Smith v. Cajun Insulation, Inc., 392 So.2d 398, 402 n.2 (La. 1980); Greene v. Succession of Alvarado, 15-1960 (La. App. 1 Cir. 12/27/16), 210 So.3d 321, 339. When the reply memorandum is considered in light of the applicable summary judgment procedure, it is clear that in substance, Lighthouse was objecting to the affidavit of Dowdy, arguing that the affidavit failed to establish Dowdy’s competence to testify to the matters stated therein. Proeedurally, this was a proper objection and was raised through the only means by which a party may object to the trial court’s consideration of an expert’s affidavit on a motion for summary judgment. See La. Code Civ. Pro. art. 966D(2).

Lighthouse did not request, and the summary judgment procedure does not require, a Daubert hearing pursuant to Louisiana Code of Civil Procedure article 1425 to determine the admissibility of the expert’s opinion contained in the affidavit filed in connection with the motion for summary judgment. Lighthouse’s objection merely required the plaintiff to persuade the trial court that the affidavit established Dowdy was competent to testify to the matters stated in his affidavit. Article 966D(2) required the trial court to consider the objection prior to rendering judgment. The objection so raised was properly argued by counsel and considered by the trial court at the hearing on the motion for summary judgment. The trial ^court’s duty was then limited to determining whether a prima facia showing of competency was made so as to allow consideration of the affidavit on the motion for summary judgment. The purpose of the procedure set forth in Article 1425 is to actually determine whether the alleged expert will be allowed to testify as an expert at trial. The objection to the expert affidavit in the context of the summary judgment neither required nor allowed the trial court to make that determination.

In addition to the objection being properly made, I find the reply memorandum was timely filed. Louisiana Code of Civil Procedure article 966(B)(3) requires a reply memorandum be filed “not less than five days prior to the hearing on the motion.” Louisiana Code of Civil Procedure article 966(B)(4) then provides, in relevant part, that when “the deadline for filing and serving a ... reply memorandum falls on a legal holiday, [it] is timely if it is filed and received no later than the next day that is not a legal holiday.” The hearing on the motion for summary judgment was set for June 23, 2016. “[F]ive days prior to the hearing” was Saturday, June 18, 2016, a legal holiday; therefore, the express language of Article 966(B)(4) required the reply memorandum be filed “no later than the next day that is not a legal holiday,” which was Monday, June 20, 2016. The defendant’s reply memorandum filed that day was timely.

Based upon my review, the expert’s affidavit sufficiently establishes his competency to render the opinions contained therein. The trial court therefore abused its discretion in excluding the affidavit. After de novo review of the evidence submitted, including the expert’s affidavit, I find that genuine issues of material fact exist and that the trial court erred in granting summary judgment.

      . The proposal for water mitigation is not contained in record.

      . Louisiana Code of Civil Procedure was amended by 2015 La. Acts, No. 422, § 1, effective January 1, 2016. Section 2 of the ■ 2015 La. Acts, No. 422, provides that: "[t]he provisions of this Act shall not apply to any motion for summary judgment pending ádjü-dication or appeal on the effective date of this Act,” Here, the filing of the motion for summary judgment was filed after the effective date of 2015 La. Acts, No. 422. Thus, the new version of La. C.C.P, art. 966 applies to the instant matter.

      . The hearing on Lighthouses' motion for summary judgment was scheduled for June 23, 2016, Louisiana Code of Civil Procedure article 966(B)(3) requires that a reply memorandum be served "not less than five days prior to the .hearing on the motion.” Five days prior to the hearing was June 18, 2016, which was a Saturday (a legal holiday). Therefore, under La. C.C.P. art. 966(B)(4), the reply memorandum would be timely because it was fax-filed the next day that was not a legal holiday-June 20, 2016. However, La. C.C.P. art. 5059 states that in computing time delays, if the period of time allowed by law is less than seven days, then legal holidays are not included. It appears that La. C.C.P. art. 5059 and La. C.C.P. art. 966(B) are in.conflict in computing the time delays for filing a reply memorandum in the instant matter. Because La, C.C.P. art. 966(B) is the most current expression of legislative intent .and the time requirements provided therein are specific rather than general, it appears that La. C.C.P. art. 5059 does not apply to the instant matter. However, because the parties did not raise this issue on appeal, we decline to address the issue.

      . We note that Lighthouse Complied with La. R.S. 13:850(B), which provides that within seven days, exclusive of legal holidays, after the clerk of court receives the facsimile filing, all of the following shall be delivered to the clerk of court:
      (1)The original document identical to the facsimile filing in number of pages and in content of each page including any attachments, exhibits, and orders. A document not identical .to the facsimile filing or which includes pages not included in the facsimile filing shall not be considered the original document.
      (2) The fees for the facsimile filing and filing of the'original document stated on the confirmation of receipt, if any.
      (3) A transmission fee of five dollars.

      . Prior to the revision of La. C.C.P. art. 966, a motion to strike in an opposition or reply memorandum was the proper method of challenging the admissibility of a document filed in connection with a motion for summary judgment. The motion to strike was removed in the recent amendment. See 2015 La. Acts, No, 422, effective January 1, 2016. A motion to strike under La. C.C.P. art. 964 requires a contradictory hearing where evidence may be introduced. See Citadel Builders L.L.C. v. Dirt Worx of Louisiana L.L.C., 14-2700 (La. 5/1/15), 165 So.3d 908, 910. Louisiana Uniform Rules of District Court 9.8(C) requires that a hearing on such a motion shall be scheduled at least fifteen calendar days after filing.

      . If a party filing a reply memorandum needs additional documents to be filed or additional motions to be heard by the trial court, that party may either request that its motion for summary judgment be dismissed so as to allow a new motion for summary judgment to be filed that would include all necessary documents, or they may request additional time to supplement their initial motion with the necessary documents, which may necessitate the continuance of the hearing on the motion for summary judgment and allow for all of the mandatory delays under La. C.C.P. art. 966(B) to be adhered to. Lighthouse made no such requests in the instant matter.

      .The qualifications and methodology of an expert who files an affidavit in support of a motion for summary judgment may be challenged by counter affidavits of experts filed in connection with a memorandum in opposition to a motion for summary judgment. However, no documents may be filed with a reply memorandum. See La. C.C.P. art. 966(B)(3) and footnote 2.

      . See La. C.C.P. art. 966(D)(2).

      . Mr. Dowdy’s affidavit complies with La. C.C.P. art. 967(A), which states that "opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

      . Even if the procedure used by Lighthouse to object to the expert's affidavit was considered a prohibited "motion to strike," that procedural objection was waived. See Shepherd v. Schedler, 15-1750 (La. 1/27/16), 209 So.3d 752, 777 (on rehearing). I do not believe the general objection lodged by plaintiff after the trial court ruled striking the affidavit constitutes a timely objection to the procedure.

      . By expressly addressing in Article 966(B)(4) the circumstance where the filing deadline "falls on a legal holiday,” the legislature necessarily excluded the application of the more general rule of Louisiana Code of Civil Procedure Article 5059, which requires that legal holidays not be counted if the delay provided for is less than seven days. Because legal holidays are not counted under Article 5059, its application to Article 966B would prohibit the filing deadline from ever falling on a legal holiday—the very scenario that Article 966B(4) expressly addresses.