author: AMY, Judge.

text:
    STATE of Louisiana v. Perry Wayne WILLIAMS a/k/a Perry Williams
    16-966
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2017

      Joseph L. Waitz, Jr., District Attorney, Thirty-Second Judicial District, Ellen Dai-gle Doskey, Assistant District Attorney, Thirty-Second Judicial District, James Christopher Erny, Assistant District Attorney, Thirty-Second Judicial District, 7856 Main Street, Courthouse Annex, Suite 220, Houma, LA 70360, (985) 873-6500, COUNSEL FOR APPELLEE: State of Louisiana
    Peggy J. Sullivan, Louisiana Appellate Project, Post Office Box 2806, Monroe, LA 71207-2806, (318) 855-6038, COUNSEL FOR DEFENDANT/APPELLANT: Perry Wayne Williams
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Marc T. Amy, Judges.
   AMY, Judge.

[,The State charged the defendant with possession with intent to distribute a Schedule II controlled dangerous substance. In pre-trial proceedings, the trial court rejected the defendant’s contention that his arrest was not supported by probable cause, denying the defendant’s motion to suppress in this regard. Following a multi-day trial, a jury convicted the defendant of attempted possession of cocaine with intent to distribute. The trial court imposed a four-year sentence to be served at hard labor and imposed payment of costs of a pre-sentence report as a condition of parole. The defendant appeals. For the following reasons, we affirm the defendant’s conviction, amend the defendant’s sentence to remove the condition of parole, and affirm that sentence as amended. We further remand this matter, with instructions to the trial court to correct the minutes to reflect that amendment.

Factual and Procedural Background

Deputy John Cowan, then an officer with the Ferriday Police Department, explained that, in February 2011, he “received information from a Vidalia officer that there was a subject that wanted to turn over his dealer in Ferriday.” He testified that, “[a] couple of days after this phone call [he] met up with the guy that wanted to turn over his dealers; his name was [Ricky] Davenport.” Deputy Cowan confirmed that this was the first time he had met Mr. Davenport.

Deputy Cowan testified that, he thereafter met with Mr. Davenport, who telephoned the defendant, Perry Williams, among others, and that he “[ultimately arranged to—to buy or purchase a hundred dollars worth of crack-cocaine.” Deputy Cowan explained that he listened to the telephone call with the defendant |2as it was broadcast on the “speaker phone[.]” Thereafter, Deputy Cowan accompanied Mr. Davenport as a passenger in Mr. Davenport’s vehicle as the two drove to the location identified on the call. The record indicates that the defendant was walking alongside the roadway at the time and that Deputy Cowan exited the vehicle after he identified the defendant.

Deputy Cowan explained that, upon leaving the vehicle, he drew a “Stinger” and ordered the defendant to the ground. He testified that the defendant then “fumbled with his pockets” and then threw a plastic bag to the ground. Deputy Cowan explained that he recovered the bag, suspecting that the substance contained therein was “crack cocaineM:i in the very early stages of production[]” He stated that he then placed the defendant “on the ground; place[d] him in handcuffs and he was Mirandized and taken to jail.”

The State initially charged the defendant with possession of a Schedule II controlled dangerous substance. However, by an amended bill of information in October 2015, the State charged the defendant with possession with intent to distribute a Schedule II controlled dangerous substance, a violation of La.R.S. 40:967(A)(1). Subsequently, the trial court considered the defendant’s motion to suppress wherein he alleged that the evidence relied upon by the State resulted Lfrom an illegal search. The trial court denied the motion. Following trial, a jury convicted the defendant of attempted possession of cocaine with intent to distribute. The trial court subsequently denied the defendant’s motion for new trial and motion for acquittal. The trial court thereafter imposed a sentence of four years at hard labor, with credit for time served.

The defendant appeals assigning the following as error:

I. The evidence seized in this case was the result of an unlawful arrest. Thus, any evidence seized as a result of that arrest should have been suppressed. The Trial Court erred in denying the Motion to Suppress.

Discussion

Error'Patent

Having reviewed this matter for errors patent on the face of the record in accordance with La.Code Crim.P. art. 920, we ..find one such error. In imposing sentence, the trial court explained that: “A special condition of parole will, be that you pay a hundred and fifty .dollars ($150.00) for cost of the pre-sentence investigation and report payable to the Louisiana Department of Probation and Parole.” However, a trial court lacks authority to impose such a condition on parole. See State v. R.K., 10-982 (La.App. 3 Cir. 5/11/11), 64 So.3d 426. Accordingly, we amend the defendant’s sentence to strike the condition of parole and instruct the trial court to note the amendment to the sentence in the court’s minutes. See id.

Probable Cause

In support of his appeal, the defendant continues to argue that his arrest was without probable'cause as it stemmed from information received by an' unproven, confidential informant with whom Deputy Co-wan was not previously acquainted. ROther than the’ information obtained from Mr. Davenport, the defendant argues, the police conducted no independent investigation, surveillance, or otherwise verified that he was the individual on the call with Mr. Davenport.

Unreasonable searches and seizures are prohibited by both U.S. Const, amend. IV and La.Const. art. 1, § 5. “If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion bf the evidence from trial.” State v. Coleman, 14-0402, p. 17 (La. 2/26/16), 188 So.3d 174, 192, cert. denied — U.S. -, 137 S.Ct. 153, 196 L.Ed.2d 116 (2016). A trial court’s ruling on a motion to suppress addressing the reasonableness of the search and seizure is entitled to great weight and will not be overturned absent an abuse of discretion. Id. Although the question of probable cause was placed before the trial court within the context of a pre-trial motion to suppress, an appellate court considers the correctness of a trial court’s' ruling on a pre-trial motion to suppress by taking into account “the totality of the evidence presented at the motion to suppress hearing and the trial.” State v. Burkhalter, 428 So.2d 449, 455 (La.1983).

Having reviewed the trial court’s denial of the motion to suppress under that standard, we find no abuse of discretion in its ruling. As noted above, the defendant suggests that Mr. Davenport’s information to Deputy Cowan was unreliable. In this regard, the record offered conflicting evidence as to Mr. Davenport’s introduction to Deputy Cowan. The latter explained that he was contacted by Officer Jamie Lipscomb with the Vidalia Police Department, who suggested that Mr. Davenport wanted to assist in turning over his drug dealers, that Officer Lipscomb had worked with Mr. Davenport before, and that he “was good to go.” Deputy Cowan testified that a meeting was thereafter arranged between he and Mr. Davenport.

|BYet, at trial, Mr. Davenport explained that he had not worked as an informant, but that he had known Officer Lipscomb from having worked with him in the flooring business. Mr, Davenport also recalled that he was introduced to Deputy Cowan by another officer.

Obviously, the two differed in their account of their initial introduction. And, in the least, Deputy Cowan and Mr. Davenport did not have an established history of working together. However, Deputy Co-wan did not proceed based on Mr. Davenport’s history alone. Rather, both Deputy Cowan and Mr. Davenport testified that they were together while Mr. Davenport made telephone calls to his various contacts in order to arrange a drug transaction. Mr. Davenport testified that the defendant’s telephone number was saved in his telephone as he had previously purchased drugs from him, albeit only one or two times.

Both Mr. Davenport and Deputy Cowan explained that, when the defendant returned Mr. Davenport’s call, Deputy Co-wan listened to the conversation by the speaker. They consistently reported the substance of the conversation with the defendant. Mr. Davenport explained that: “I was going to get a hundred dollars worth of crack-cocaine.” When asked what the defendant said, Mr. Davenport testified that: “He’d be walking down the street. Call when I got close or something like that.” Mr. Davenport explained that, when he turned down the street, he almost passed the defendant because it was dark, but that he ultimately recognized him, as explained above. Deputy Cowan then got out of the truck and approached the defendant.

|fiDeputy Cowan also explained that he was with Mr. Davenport while he was speaking with the defendant. He confirmed that he heard the conversation. In reporting the substance of the call, Deputy Co-wan explained that “we had arranged to get a hundred dollars worth of crack-cocaine and were supposed to call him back when we were close to his house; to his area,” Deputy Cowan also reported the series of telephone calls, and attempted telephone calls that occurred between Mr. Davenport and the defendant, as well as his brother afterwards. He explained that one such call was to the defendant, who said “to meet him on the roadway past the house.” Upon locating a man walking along the roadway, both Mr. Davenport and Deputy Cowan identified him as the defendant. Again, as reported above, Deputy Cowan exited the vehicle with the Stinger drawn and ordered the defendant to the ground. Thereafter, the defendant removed the plastic bag with the alleged crack cocaine from his pocket and threw it onto the ground.

Thus, in.the present case, Deputy Co-wan’s stop and ultimate detention of the defendant resulted, not only from initial information provided by Mr. Davenport, but by his own observations in listening to the proposed drug transaction and in confirming the defendant’s location at the arranged meeting location.

In State v. Holmes, 08-719, p. 7 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 279, writ denied, 09-0816 (La. 1/8/10), 24 So.3d 857, the fifth circuit discussed the sufficiency of a confidential informant’s tip within the context of an officer’s subsequent actions as follows:

Tips provided to police by confidential informants can supply sufficient reasonable suspicion to conduct an investigative stop under certain circumstances. The tip must accurately predict the offender’s conduct in sufficient detail to support a finding that the informant had reliable information regarding the illegal activity. See, e.g., [State v. Melancon, 03-514 (La.App. 5 Cir. 10/28/03), 860 So.2d 225, writ denied, 03-3503 (La. 4/23/04), 870 So.2d 297], The tip must also be corroborated by the police. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). If an informer’s tip accurately predicts the offender’s future behavior it gains an additional modicum of reliability. Id. Predictive ability is not always necessary; a non-predictive tip coupled with police corroboration or independent police observation of suspicious activity can provide the police with the requisite reasonable suspicion to detain a suspect. See, e.g., State v. Francois, 04-1147, p. 7 (La.App. 5 Cir. 3/29/05), 900 So.2d 1005, 1010. An informant’s past record for accuracy and reliability is another factor taken into account when determining the reliability of the tip in question. State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, 879, writ denied, 05-0830 (La. 11/28/05), 916 So.2d 143.

In the present case, Mr. Davenport provided initial information to Deputy Cowan by virtue of contacting the defendant as a person from whom he had purchased crack cocaine. From that point, Deputy Cowan independently heard the plans for the transaction, located the defendant in the arranged location, and identified the defendant. Accordingly, in the least, Deputy Co-wan had reasonable suspicion to stop the defendant. As a result, the defendant, himself, removed the bag from his pocket, throwing it to the ground. Deputy Cowan explained that he believed the substance in the bag to be crack cocaine. In light of that series of events, which commenced with a stop for which there was reasonable suspicion, we find no abuse of discretion in the trial court’s determination in finding probable cause for the ultimate arrest.

For these reasons, the defendant’s assignment lacks merit.

DECREE

The conviction of the defendant, Perry Williams, is affirmed. The defendant’s sentence is amended to delete the condition of parole. The defendant’s 18sentence is affirmed as amended. The trial court is instructed to note the amendment in the court’s minutes.

CONVICTION AFFIRMED. SENTENCE AFFIRMED AS AMENDED. REMANDED WITH INSTRUCTIONS.

      . At trial, Deputy Cowan stated that he is now employed by the Concordia Parish Sheriffs Department as a "Sergeant with Investigations.”

      . Deputy Cowan testified that he "identified him” and that he felt that Mr. Davenport "said that that’s him there or either he asked if that was him. But he said; That's him there. I want to say that’s what he said, but I know for a fact that was him.” Mr. Davenport also explained that, although he didn't initially recognize the defendant as he had his back to them, he recognized him as they drew near.

      .At trial, Deputy Cowan testified at trial that he exited the vehicle "with the—not a taser, it’s a stinger. It’s basically the same thing.”

      . While lab testing introduced into evidence revealed the substance to be "COCAINE, SCHEDULE II[,]” the report did not include the weight of the substance tested. Instéad, Derrick Collins, the State’s expert in the field of "identification, the use, the packaging and distribution and investigations of illegal narcotics!,]" estimated the substance to be "a gram or a little bit more[,]” an amount he opined "is about a hundred dollars worth.”

      . The underlying arrest in this case occurred in 2011, whereas both the hearing on the motion to suppress and the trial occurred in October 2015. .


source: Caselaw Access Project

author: JOHNSON, J.

license: Public Domain

text:
    Freddie POPULIS v. The STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Lester C. Ledet, III and Allstate Insurance Company Sandra Bovie, Byron Thomas, Mary Lou Boudoin, and Mary Mitchell v. State of Louisiana, Through the Department of Highways Pamela Lewis v. State of Louisiana, Through the Department of Highways, Unknown Captain and Unknown Deckhand(s) Robin Wilson and Jahmal A. Wilson v. The State of Louisiana, Through the Louisiana Department of Transportation and Development, Fara Insurance Services, and Lester C. Ledet, III
    NO. 16-CA-655
    16-CA-656
    16-CA-657
    16-CA-658
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, FREDDIE POPULIS, T. Daniel Pick
    COUNSEL FOR PLAINTIFF/APPEL-LEE, SANDRA BOVIE, BYRON THOMAS, MARY LOU BOUDOIN, AND MARY MITCHELL, Gary N. Boutwell, II, J. Thomas Anderson, Ashley Anderson Tray-lor
    COUNSEL FOR DEFENDANT/APPELLANT, STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Jeffrey M. Landry, William S. Culver, Jr.
    Panel composed of Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson
   JOHNSON, J.

11 Defendants/Appellants, the State of Louisiana through the Department of Transportation and Development (hereinafter referred to as “DOTD”) and Lester C. Ledet, III, appeal the determination of liability from the 40th Judicial District Court, Division “B,” concerning an allision between a ferryboat and a moored barge whereby Plaintiffs/Appellees, Freddie Po-pulis, Sandra Thomas Bovie, Byron Thomas, Mary Lou Boudoin, and Mary Mitchell, were passengers of the ferryboat. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The pertinent facts of this appeal are as follows.

This matter arises from an allision that occurred on March 20, 2013 at approximately 5:45 a.m. While departing from the west bank landing in Edgard, Louisiana, with passengers and cars on board and traveling eastbound across the Mississippi River to the landing in Reserve, Louisiana, the ferryboat M/V NEW ROADS abided with a moored barge attached to a fleet. The starboard stern of the ferry made contact with the starboard bow of the barge. The M/V NEW ROADS was owned by DOTD and operated by Captain Lester C. Ledet, III. Plaintiffs, Freddie Populis, Sandra Thomas Bovie, Byron Thomas, Mary Lou Boudoin, and Mary Mitchell, were among the passengers being transported on the ferry to the opposite bank and sustained injuries as a result of the allision. At the time of the incident, it was dark, cool and windy, and the river stage was at 10.3.

On November 25, 2013, Mr. Populis filed an action against DOTD, Captain Ledet and Allstate Insurance Company, alleging fault/negligence for failure to keep a proper lookout, failure to train and supervise employees, failure to properly 12identify the proper clearance of the M/V NEW ROADS ferry, failure to exercise reasonable vigilance, failure to maintain reasonable and proper control of the M/V NEW ROADS ferry, and any and all other acts of negligence and/or fault. In a separate action, Mrs. Bovie, Mr. Thomas, Ms. Boudoin and Ms. Mitchell filed suit on February 24, 2014, against the State of Louisiana, alleging fault/negligence for unseaworthiness due to the incompetence of the vessel’s crew to safely operate the vessel on its voyage; the vessel failed to have competent crew keeping lookout and properly stationed and attentive to them duties; the vessel lacked the navigational capacity to avoid the allision; the vessel failed to have competent crew available to render aid and assistance; and other such unseaworthiness to be revealed through discovery. The petition also alleged fault for negligent failure to alter the vessel’s course to navigate clear of moored barges, failure to keep crew properly stationed to keep proper lookout, and failure to return to shore after the allision and render aid and assistance to passengers. The actions were consolidated by the trial court on April 20, 2015, upon the motion of Defendants.

Plaintiffs filed a Motion for Partial Summary Judgment on October 29, 2015, alleging they were entitled to judgment as a matter of law that Defendants were 100% liable for the damages in the litigation. The trial court denied the motion regarding liability on December 7, 2015. Defendants subsequently filed their own Motion for Summary Judgment on January 15, 2016, seeking the dismissal of all of Plaintiffs’ claims. In their motion, Defendants argued that the actions of Captain Ledet on the day of the allision were discretionary, and they were protected from liability pursuant to La. R.S. 9:2798.1. Defendants’ motion was heard on February 26, 2016 and denied by the trial court on March 8, 2016.

The matter proceeded to trial on August 9, 2016. At the conclusion of |sPlaintiffs’ case-in-chief, Defendants orally moved for an involuntary dismissal of Plaintiffs’ claims on the basis that Plaintiffs failed to prove fault or negligence on the part of Captain Ledet or DOTD. Defendants also orally re-urged their Motion for Summary Judgment, contending they were entitled to discretionary immunity. Both of Defendants’ motions were denied, and the trial resumed with Defendants’ presentation of evidence. After the evidence from both sides was presented, the trial court took the matter under advisement.

On August 22, 2016, the trial court rendered its judgment that incorporated reasons. The trial court found that Captain Ledet was negligent and his negligence caused the allision between the ferry and the barge. The trial court awarded $23,748.57 to Mr. Populis; $18,525 to Mr. Thomas; $19,363 to Mrs. Bovie; $19,787.31 to Ms. Boudoin; and $18,869.33 to Ms. Mitchell in damages. The trial court also ordered DOTD to pay legal interest and all court costs. Defendants filed the instant appeal from that judgment.

ASSIGNMENTS OF ERROR

On appeal, Defendants allege: 1) the trial court erred in denying DOTD’s Motion for Summary Judgment on the issue of whether DOTD and Captain Ledet were protected from liability through operation of La. R.S. 9:2798.1; 2) the trial court abused its discretion in denying its Motion for Directed Verdict; and 3) the trial court abused its discretion in apportioning liability to them.

LAW AND ANALYSIS

Denial of Motion for Summary Judgment

Defendants allege the trial court erred in denying their Motion for Summary Judgment on the issue of whether they were protected from liability through discretionary immunity, pursuant to La. R.S. 9:2798.1. They state that Captain I «Ledet operated the M/V NEW ROADS ferryboat across the Mississippi River as a public endeavor of transportation on behalf of DOTD. Defendants argue there was uncontroverted testimony that Captain Le-det was not bound to conform to specific methods of operating the M/V NEW ROADS for public service to the general public; rather, Captain Ledet was required to use his discretion in interpreting and reacting to weather and sea conditions as he encountered them in the manner he deemed appropriate. As an employee of DOTD, Defendants contend that Captain Ledet is entitled to the immunity from liability provided in La, R.S. 9:2798.1 because he used his sole discretion at all times to navigate the ferryboat and complete his assignment.

Plaintiffs argue the trial court correctly held that Defendants were not entitled to summary judgment on the issue of statutory immunity. Plaintiffs contend the statute at issue does not protect against legal fault or negligent conduct at the operational level but only confers immunity for policy decisions, and Captain Ledet made operational decisions that lead to acts of negligence on the morning of the allision. Plaintiffs maintain that La. R.S. 9:2798.1 was not drafted to shield Defendants from liability/negligent actions at the operational level; thus, Defendants were not entitled to summary judgment.

In Pouncy v. Winn-Dixie La., Inc., 15-189 (La.App. 5 Cir. 10/28/15); 178 So.3d 603, 605, this Court explained the review of the denial or grant of summary judgments by stating:

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action.
A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate .success, or determines the ^outcome of the lawsuit. An issue is genuine if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue.
Under La, C.C.P. art 966, the initial burden is on the mover to show that, no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The nonmoving party must then produce factual support to establish that he will be ' able to satisfy his evidentiary burden of proof at trial. If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted.
Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law.

(Internal citations omitted).

An interlocutory judgment, such as the denial of a summary judgment, may be considered upon review of the final judgment. Elliot v. Holmes, 15-296 (La.App. 5 Cir. 11/19/15); 179 So.3d 831, 834 n. 3.

In this matter, the trial' court reviewed whether Defendants were entitled to summary judgment and a finding that they could not be liable for the allision pursuant to La. R.S.9:2798.1. La. R.S.9:2798.1 provides, in pertinent part:

A. As used in this Section, “public entity” means and includes the state and' any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumen- . talities, officers, officials, and employees of such political subdivisions. ■
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the .legitimate governmental objective for which the policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant .misconduct.

In Banks v. Parish of Jefferson, 12-215 (La.App. 5 Cir. 1/30/13); 108 So.3d 1208, 1214, writ denied, 14-79 (La. 3/14/14); 135 So.3d 605, this Court, citing Johnson v. Orleans Parish Sch. Bd., 06-1223 (La.App. 4 Cir. 1/30/08); 975 So.2d 698, 709-10, stated, the following regarding the application of discretionary immunity:

The Louisiana Supreme .Court established a two-step test for courts to follow when determining whether the immunity applies. A court must first determine whether a statute, regulation, or policy requires the governmental agency to follow a particular course of action. If there is such a requirement, then there is no choice or discretion, and the immunity does not apply. If, however, the governmental entity has a choice about whether to undertake the activity, then the entity will be protected by the immunity only if the choice is-grounded in “social, economic, or political policy.” The application of this affirmative defense is “a question of fact to be determined through a trial.” Once a defendant establishes its conduct involves a matter of choice or diseretion[,] that is not the end of the inquiry. A court must also consider whether the conduct in question occurred at the “operational level”, or how the entity carried out its policy or decision. The immunity statute does not protect governmental entities against legal fault or, negligent conduct at the “operational level”, but only confers immunity for policy decisions, that is decisions based on social, economic, or political concerns. As such, once a discretionary decision is made, the government entity is not protected from liability for conduct in carrying out the discretionary decision.

(Internal citations omitted).

In their written Motion for Summary . Judgment, Defendants sought to have a judgment rendered that stated Captain Ledet and DOTD could not be held liable for the allision because they were protected by discretionary immunity. They argued that the barge was unlit; the captain of a vessel determines how to handle the vessel and where to go; there was no directive applicable to the performance of the duties of the master of the vessel; and, there was expert testimony affirming Captain Ledet was not negligent in his actions at-the time.of the incident. In essence, Defendants sought to have the trial court determine whether the application of discretionary immunity should apply to this matter through summary judgment. However, as cited above, the “application of this affirmative defense is ‘a question of fact to, be determined through a trial.’ ” See, Banks, supra.

| Jn their oral Motion for Summary Judgment raised at the end of Plaintiffs’ case-in-chief, Defendants again sought to have a judgment rendered stating Captain Ledet and DOTD could not be held liable for the allision under discretionary immunity. The trial court again , denied .the motion. A motion for summary judgment is a procedural device used to avoid a full-scale trial. Bouncy, supra. However, Defendants raised their oral motion in-the midst, of their full-scale trial, which contradicted the procedural purpose of the motion for summary judgment. Additionally, the application of their affirmative' defense was a question of fact that needed to be determined by a factfinder. See, Banks, supra.

Therefore, upon de novo review, we find that summary judgment was not appropriate in determining whether Captain Ledet and DOTD were entitled to discretionary immunity that would shield them from liability for the allision. There were remaining genuine issues of material fact on that issue. A trial on the merits was necessary to determine the applicability of the discretionary immunity defense toCaptain. Le-det’s actions at the time of the incident. Therefore, we find that the trial court did not err in denying Defendants’ Motions for Summary Judgment.

Denial of Motion for Involuntary Dismissal

Defendants allege the trial court erred in denying their Motion for Involuntary Dismissal because Plaintiffs failed to carry their burden of proving their case-in-chief on the issue of liability. Defendants claim that Plaintiffs provided no testimony or other evidentiary proof that Captain Ledet’s actions in piloting the ferryboat at the time of the incident were unreasonable or in any manner a violation of normal maritime standards for safety in operation of a vessel. As such, Defendants contend they were entitled to an involuntary dismissal of Plaintiffs’ claims at the conclusion of Plaintiffs’ presentation of evidence.

Plaintiffs argue the trial court properly denied Defendants’ Motion for ^Involuntary Dismissal because they proved Defendants’ negligence by a preponderance of the evidence during their case-in-chief. Plaintiffs maintain they proved Defendants had a duty to safely operate the M/V NEW ROADS; Defendants breached their duty by causing the allision; Plaintiffs suffered damages; and, their damages were a direct result of the allision.

In a motion for involuntary dismissal, the defendant may move for a dismissal of the action against him after the close of the plaintiffs case. Machado v. Baker Concrete Constr., 13-273 (La.App. 5 Cir. 10/30/13); 128 So.3d 477, 481, citing Brock v. Singleton, 10-550 (La.App. 5 Cir. 3/29/11); 65 So.2d 649, 600. The appropriate standard in determining whether an involuntary dismissal should be granted is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence. Id. An appellate court may not reverse a ruling on a motion for involuntary dismissal unless it is manifestly erroneous or clearly wrong. Id.

In this matter, the allision occurred in a navigable waterway (the Mississippi River) between a vessel (the M/V NEW ROADS) and a moored barge. Thus, we must evaluate whether Plaintiffs presented sufficient evidence by a preponderance of the evidence on their maritime law claims.

As a general rule, the state court applies the maritime or admiralty law to a case involving the injury of a passenger on a vessel, whether or not the petition designates it as such. Day v. Touchard, Inc., 97-1180 (La.App. 5 Cir. 5/27/98); 712 So.2d 1072, 1076, citing Green v. Industrial Helicopters, Inc., 593 So.2d 634, 637 (La. 1992). The elements of a maritime negligence cause of action are essentially the same as land-based negligence. Dunaway v. La. Wildlife & Fisheries Comm’n, 08-1494 (La.App. 1 Cir. 2/13/09); 6 So.3d 228, 233, citing Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005). Under the general maritime law, the plaintiff must demonstrate that there was a duty owed by the defendant, breach of that duty, injury sustained by the plaintiff, and a causal connection between the defendant’s conduct and the plaintiffs injury. Dean v. Ramos Corp., 00-1621 (La.App. 5 Cir. 2/28/01); 781 So.2d 796, 802, citing In re: Cooper/T. Smith, 929 F.2d 1073, 1077 (5th Cir. 1991), cert. den., 502 U.S. 865, 112 act 190, 116 L.Ed.2d 151 (1991). Furthermore, the resultant harm must be reasonably foreseeable. Id. “These standards are not remarkably different from state standards, except the state law would apply a ‘duty/risk’ analysis, rather than a ‘reasonably foreseeable’ analysis.” Id., citing Use v. Use, 94-972 (La. App. 1 Cir. 4/7/95); 654 So.2d 1355, 1359 n. 2.

Federal maritime Inland Navigational Rule 5 denotes that a vessel has a duty to “maintain proper look-out by sight and hearing, as well as by all available means in the prevailing circumstances so as to make a full appraisal of the situation and of the risk of collision.” Wynne v. Trotter, 10-90 (La. App. 4 Cir. 6/30/10); 46 So.3d 678, 682, citing 33 CFR 83.05. The pilot of a vessel has a duty to navigate the vessel with proper lookout at a safe speed. Id. In regards to causation, it has been held that when a moving vessel allides with a stationary object, the former is presumed at fault. Id., citing The Oregon, 158 U.S. 186, 197, 15 S.Ct. 804, 809, 39 L.Ed. 943 (1895); Dow Chemical Company v. Dixie Carriers, Inc., 463 F.2d 120, 122 n. 4 (5th Cir. 1972).

During the presentation of Plaintiffs’ evidence, each plaintiff testified to his or her recount of the allision and the injuries sustained from it. When recalling the allision, Mr. Thomas testified that it was dark that morning, and the weather was cool with a little wind. He stated that the ferry was drifting backwards before it hit the moored barge, and the ferry hit the barge two times, particularly hard the second time. He further testified that he was in his car, and the deckhands on duty | inwere not on the deck at the time of the incident. Mr. Thomas said the fleet of moored barges had been parked on that tier for years prior to the allision. He also stated that a ship passed on the right side of the ferry after the allision occurred.

Mrs. Bovie testified there was nothing unusual about the weather on the morning of the allision. She stated that she initially did not know what the ferry hit at the time of the incident because she did not get out of her car. She also stated that the impact of the ferry hitting the barge was hard. Mrs. Bovie further stated that the ferry proceeded to cross to the east bank of the Mississippi River after the incident.

Ms. Boudoin testified that the weather was clear on the morning of the incident, and nothing was out of the ordinary that day. She stated that she was in her car and did not see what happened, but she felt two hard hits with the second, hit being very hard.

Ms. Mitchell testified there was no current out of the norm on the morning of the incident. She stated that she was seated in her car and was able to see the ferry hit the barge because of the way her car was positioned on the ferry. She knew that the ferry did not use lights, but she could not see whether the barge had its lights on. She stated that as the captain backed up the ferry to cross the river, it hit the barge. She further stated that the captain picked up a little speed and hit the barge again. She described the second hit as a hard hit. Ms. Mitchell said the ferry crossed the river after the ship passed.

Mr. Populis testified that he was seated in his car at the time of the allision. He recalled that the ferry drifted downriver about 200 yards after leaving the dock. After a couple of minutes, he heard a booming sound, like steel hitting steel. He felt the ferry strike the barge two times. Mr. Populis stated that he was aware of where the moored barge was located because it was always in the same spot. He stated that he was surprised that the ferry crossed the river to the east bank because | uhe thought the ferry would go back to the west bank dock after the allision.

In addition to their live testimonies, Plaintiffs also presented the testimony of Captain Ledet. Captain Ledet testified that he was the only person in the wheelhouse at the time of the allision, and he accepted responsibility for the allision because he was the person responsible for the vessel, the MTV NEW ROADS. He agreed with the notions that a captain must keep a constant lookout around his vessel at all times, and'it would be reckless for. a captain to not keep a proper lookout around that vessel.

Captain- Ledet recounted his version of the events occurring on the morning of the allision. He corroborated Plaintiffs’ testimonies that the morning was dark but clear on the day of the incident. He stated that there were strong winds that morning and the currents were higher than normal; however, those were not reasons to delay sailing -the ferry across the river. He further stated that his crew members, which consisted of two deckhands and two engineers, were performing their jobs at the time of the allision, but he did not recall whether any members were on the deck.

Captain Ledet testified that his first trip of that morning was from the east bank landing to the west bank landing, and there were no incidents during that trip. Prior to departing from the west bank landing back to the east bank landing, he stated that he performed his ritual of looking for lights and anything approaching the ferry, listening to the VHF radio for traffic, and checking his radar. While performing his ritual, Captain Ledet said that he noticed the lights of a bigger, oncoming vessel and contacted the pilot of that vessel via the VHF radio. The two made an agreement that the bigger vessel would pass ahead of the' ferry. Captain Ledet estimated that the other vessel was about 15 minutes away from the west bank landing. He stated that he signaled the deckhands to secure the ferry’s gates | 18and untie the ferry from the landing about 10 minutes after communicating with the other vessel’s pilot.

Because the east bank landing was a downriver, diagonal crossing from the west bank landing, Captain Ledet testified that he proceeded to put the ferry in reverse in order to back off of the ferry landing and place the ferry into a hole configured between the moored barges to start heading southeastward. He stated that the moored barges were approximately 300 yards from the west bank landing. He further stated that he always used that hole between the barges for his trips. As he was moving the ferry forward from the hole, Captain Le-det said that a strong wind hit the broadside of the ferry and pushed it toward barges that he could not see. He asserted that he did not see those barges because they were unlit and had been unlit prior to March 20, 2013. Although Captain Ledet stated that there had been moored barges in that area prior to the allision, he testified that the barges were never in the same configuration. He continued south/southeast after the ferry’s starboard aft bounced off of the bow of the barge. Captain Ledet maintained that he was always in control of the ferry; however, he believed that the cause of the allision was “mother nature with the- high winds and the current.”

Captain Ledet later agreed that, as a professional, he was skilled to handle the conditions that were present on the day of the allision. .When questioned why he chose not to use the ferry’s spotlight to illuminate the alleged unlit, moored barges he knew were in the area,. Captain Ledet replied there was no need to use the spotlight. He also admitted that he could have deployed crew members to help, but he chose not to use them.

Plaintiffs also presented the deposition testimony of Bill Harding, the gulf fleets manager for Cargo Carriers. Mr. Harding testified that the barges had been permanently fixed to that area for approximately 20 years. He stated that the 11sprocess with the company’s fleet is to light the barges prior to sunset and pick up the lights after sunrise and document those times on a vessel log. Mr. Harding confirmed the logs for March 19 and 20, 2013 reflected that the lower portion of the fleet in question was lit. However, he later admitted that he did not have personal knowledge of the lighting on that fleet.

After reviewing the above-mentioned evidence, we find that Plaintiffs presented sufficient evidence in their case-in-chief to establish their maritime claims by a preponderance of the evidence. Therefore, we find the trial court was not manifestly erroneous or clearly wrong in its denial of Defendants’ Motion for Involuntary Dismissal.

Finding of Liability

Defendants allege the trial court erred by casting them in any liability for the allision. Defendants argue the trial court’s judgment is flawed because none of the reasons asserted were supported by the evidence presented at trial. Defendants again contend that Plaintiffs failed to carry their burden of proving any fault or negligence on the part of Captain Ledet or DOTD, and testimony was presented that the barge in question was not lit at the time of the incident. Defendants also contend that Bill Warner, Plaintiffs’ only witness who testified that the barge was lit, had no direct knowledge whether the barge was actually lit prior to the incident. They further argue that Captain Ledet’s actions were reasonable and in compliance with the normal practices of the maritime industry at all times.

Conversely, Plaintiffs argue the trial court did not err in finding fault or negligence on the part of Defendants because they met their burden of proof. Plaintiffs aver that ample evidence of the reckless and unnecessary behavior of Captain Le-det was provided in live and deposition testimony. Plaintiffs contend the trial court correctly acknowledged that Captain Le-det was responsible for keeping a lookout for the MW NEW ROADS; yet, he did not see the barges in |14question and neglected to ask the crew to help him keep a proper lookout for those barges or use the floodlight. When weighing the credibility of the witnesses and other evidence presented, Plaintiffs further aver the trial court properly weighed the evidence and found Defendants were at fault for the allision.

As previously mentioned, under the general maritime law, the plaintiff must demonstrate that there was a duty owed by the defendant, breach of that duty, injury sustained by the plaintiff, and a causal connection between the defendant’s conduct and the plaintiffs injury. Dean, supra. Furthermore, the resultant harm must be reasonably foreseeable. Id. A vessel has a duty to “maintain proper lookout by sight and hearing, as well as by all available means in the prevailing circumstances so as to make a full appraisal of the situation and of the risk of collision.” Wynne, supra. The pilot of a vessel has a duty to navigate the vessel with proper lookout at a safe speed. Id. In regards to causation, it has been held that when a moving vessel al-fides with a stationary object, the former is presumed at fault. Id.

State courts are directed by the Louisiana Supreme Court to apply Louisiana’s manifest error standard of review in general maritime and Jones Act cases. Voiron v. Kostmayer Constr. Co., 03-607 (La.App. 5 Cir. 10/28/03); 860 So.2d 131, 133, citing Milstead v. Diamond, M Offshore, Inc., 96-2446 (La. 7/2/96); 676 So.2d 89. Under the manifest error standard of review, in order to reverse a factual determination, an appellate court must find 1) a reasonable factual basis does not exist in the record for the finding, and 2) the record establishes that the finding is clearly wrong or manifestly erroneous. Id.

In this matter, the trial court found Captain Ledet was negligent, and his negligence caused the allision between the ferry and the barge. The trial court further found:

Expert testimony aside, common sense dictates that darkness 11fiand familiarity with the unlit barge fleet required simple, reasonable precautions to be taken by the captain, upon whom the safety of the passengers was dependent. Considering these familiar conditions, as well as the weather and current, and the instruments and equipment available to him, it was foreseeable that an allision would occur. As captain of the ferry, Captain Ledet owed a duty to his passengers and he breached that duty. As a result of his breach of duty, the allision occurred and passengers were injured.

At trial, Plaintiffs presented evidence that the M/V NEW ROADS allided with moored barges. It was established through Captain Ledet’s testimony that a captain must keep a constant lookout around his vessel at all times, and it would be reckless for a captain to not keep a proper lookout around that vessel. Plaintiffs also presented evidence that Captain Ledet knew of the location of the barges, contended the barges were always unlit, and still chose not to take the precautions of using the ferry’s spotlight or his crew to aid in navigating the ferry,on that dark morning.

In their defense, Defendants presented the testimonies and depositions of crew members and a passenger, Jahmal Wilson, who all attested that the barges were not lit on the day of the allision. Defendants also presented the deposition testimony of Captain Larry Strouse, a marine appraiser, a marine surveyor, and a licensed captain with an unlimited master’s license. He stated that the configuration of the barges was probably different every day because barges are continuously shifted in and out of the configuration. He further stated that the barges were difficult to see during the dark hours because they were painted black. Captain Strouse also testified that ferryboats are not supposed to use spotlights for navigational purposes; but, he later stated that he did not know the use for the spotlight on the ferry. Captain Strouse opined there was no negligence or fault on the part of Captain Ledet because he could not see the barge. He also opined that the MTV NEW ROADS was never out of control but was influenced by the wind and current. Captain Strouse later agreed that a vessel captain should be more Incautious when proceeding in dark conditions near a fleet of permanently moored barges.

After review, we find there is a reasonable, factual basis in the record for the trial court’s determination that Captain Ledet was negligent in his actions. Evidence was presented that Captain Ledet had the duty to keep a proper lookout and make a full appraisal of the situation, and he breached that duty by opting not to use available precautions when navigating the ferry in the dark near known moored barges and alliding with one of the barges. Plaintiffs also testified regarding their injuries sustained from the allision and presented corroborating medical evidence. Additionally, evidence was presented that there was a causal connection between Captain Ledet’s breach of his duty, which caused the allision, and Plaintiffs’ injuries. Therefore, after review of the trial court’s determination under the manifest error standard, we cannot find that the trial court was erroneous in finding Captain Ledet liable for the allision.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Defendants, the State of Louisiana through the Department of Transportation and Development and Lester C. Ledet, III, are assessed the costs of this appeal.

AFFIRMED

      . Black’s Law Dictionary 75 (7th ed. 1999), defines allision as "[t]he sudden impact of a vessel with a stationary object, such as an anchored vessel or a pier.”

      . Robin Wilson, Jahmal A. Wilson and Pamela Lewis were also passengers on the M/V NEW ROADS; however, they are not parties to the instant action.

      . Allstate Insurance Company was later dismissed from the action with prejudice.

      . The designated record in this matter does not contain a written judgment on the motion for partial summary judgment or a transcript of the motion hearing. The minute entry states, "MOTION FOR SUMMARY JUDGMENT DENIED ON LIABILITY AND FINDS THAT THE CAPTAIN WAS 100 PERCENT AT FAULT.” The true intent of the trial court's ruling is indiscernible from the minute entry alone.

      . Although Defendants correctly moved for involuntary dismissal pursuant to La. C.C.P. art. 1672(B), which is applicable to cases tried in a bench trial, they incorrectly argue on appeal the law regarding directed verdicts (La. C.C.P. art. 1810), which is applicable to cases tried by a jury. Because this matter was tried in a bench trial, we will address the denial of the Motion for Involuntary Dismissal.

      . Proof by preponderance of the evidence has been defined to mean "evidence, taken as whole, shows that fact or cause shown to be proven is more probable than not." State v. One 1991 Pontiac Trans Sport Van, 98-64 (La. App. 5 Cir. 7/9/98); 716 So.2d 446, 449, citing Crowell v. City of Alexandria Through Snyder, 558 So.2d 216 (La. 1990).

      . Captain Ledet explained that a VHF radio is a marine radio used to broadcast between vessels in the area.

      . Cargo Carriers is the owner of the tier where the moored barges were located.


author: GRAVOIS, J.

text:
    Richard PERNICIARO and Robert Cleveland, Individually and on Behalf of ParaTech, L.L.C. v. Guy MCINNIS, Ray Lauga, Jr., Casey W. Hunnicutt, Richard Lewis, St. Bernard Parish Government, The Times Picayune, L.L.C., Benjamin Alexander-Bloch and RSUI Indemnity Company
    NO. 16-CA-740
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, RICHARD PERNICIARO AND ROBERT CLEVELAND INDIVIDUAL-LYAND ON BEHALF OF PARATECH, L.L.C., William J. Larzelere, III
    COUNSEL FOR DEFENDANT/AP-PELLEE, RSUI INDEMNITY COMPANY, ■ George P. Hebbler, Jr., Metairie, Frances I. McGinnis, New Orleans
    COUNSEL FOR DEFENDANT/AP-PELLEE, ST. BERNARD PARISH, GUY MCINNIS, RAY LAUGA, JR., CASEY W. HUNNICUTT, AND RICHARD LEWIS, David C. Jarrell, Chalmette
    Panel composed of Jude G. Gravois, Robert A, Chaisson, and Robert M. Murphy
   GRAVOIS, J.

11Plaintiffs .appeal the trial court’s July 27, -2016 judgment that granted defendants’ declinatory exceptions of improper venue and dismissed all claims against defendants without prejudice. On appeal, plaintiffs argue that, in the interest of justice, the claims should have been transferred to St. Bernard Parish instead of being dismissed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 27, 2015, ParaTech, LLC (“ParaTech”) and its members/owners, Richard Perniciaro and Robert Cleveland, filed a petition for damages in Jefferson Parish against the following defendants: the St. Bernard' Parish Government; RSUI Indemnity Company (“RSUI”); four St. Bernard Parish Councilmen: Guy Mclnnis, Ray Lauga, Casey W. Hunnicutt, and Richard Lewis (“the Councilmen”); The Times Picayune, LLC (“the Times Picayune”); and Benjamin Alexander-Bloch, a reporter for the Times Picayune.

Plaintiffs’ claims against defendants arose out of an IT professional services contract between ParaTech and the, St. Bernard Parish Government that was terminated by an ordinance passed by the St, Bernard Parish Council. The suit alleged specific causes of action against each defendant regarding events surrounding the contract and . its eventual termination. First,, plaintiffs alleged that the Councilmen were liable for various acts of defamation and conspiracy perpetrated against plaintiffs by the Councilmen as members of the St. Bernard Parish Government and in their own personal and individual capacities. These actions included providing defamatory statements to the press about plaintiffs; conspiring with other parish officials to sign an “illegal contract” with another IT company, Todd’s Technology; stating false and misleading “facts” about Mr. Perniciaro to Mr. Cleveland and attempting to persuade Mr. Cleveland to leave ParaTech; and for initiating and/or voting for four “illegal” ordinances terminating |2ParaTech’s contract with St. Bernard Parish, preventing plaintiffs from entering any parish building, and refusing to pay money owed to plaintiffs. As to the St. Bernard Parish Government, plaintiffs alleged that, through its parish councilmem-bers, employees, directors, officers, and contractors, it defamed and injured plaintiffs though defamatory public statements to the press, as well as through the above-listed actions of the Councilmen. The petition also alleged that RSUI was liable because it provided a policy of liability insurance to the St. Bernard Parish Government.

Additionally, plaintiffs alleged that the Times Picayune and its editorial board published articles on July 15, 2015 and August 7, 2015 which contained false defamatory statements about plaintiffs. The petition further alleged that the Times Picayune reporter, Mr. Alexander-Bloch, also defamed plaintiffs by printing false defamatory statements made by members of the St. Bernard Parish Government without making any attempt to verify the statements and by refusing to publish and/or correct the defamatory statements after being provided facts that proved the statements were false.

In response to the petition, on February 1, 2016, the Councilmen filed a declinatory exception of improper venue, along with their answer and a cross-claim against RSUI. In support of their exception, the Councilmen relied on La. R.S. 13:5104(B), which provides:

All suits filed against a political subdivision of the state or against an officer or employee of a political subdivision for conduct arising out of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises.

|sThe Councilmen argued that the Louisiana Supreme Court in Underwood v. Lane Mem’l Hosp., 97-1997 (La. 7/8/98), 714 So.2d 715, 717-18, found that because the statute uses the term “shall,” the legislature intended that a political subdivision of the state can only be sued in a venue specified by this statute, and thus no other venue exceptions would be applicable. The Councilmen argued that the St. Bernard Parish Government is located in St. Bernard Parish and the events that gave rise to the allegations in plaintiffs’ petition occurred in St. Bernard Parish. Thus, venue was only proper in St. Bernard Parish.

Subsequently, on February 1, 2016, RSUI filed a declinatory exception of improper venue as to plaintiffs’ claims against it, arguing that the action brought against it by plaintiffs was brought pursuant to La. R.S. 22:1269, the Direct Action Statute, which required that RSUI be sued jointly with its insured, the St. Bernard Parish Government. RSUI argued that pursuant to La. R.S. 22:1269(B), an injured party may bring an action in the parish where the accident or injury occurred or in the parish in which an action could only be brought against either the insured or the insurer under the general rules of venue prescribed by La. C.C.P. art. 42. RSUI argued that La. C.C.P. art. 42 has no provision for venue in actions against a political subdivision of the state, and thus it must rely upon the mandatory venue provision set out in La. R.S. 13:5104(B). Relying on La. R.S. 13:5104(B), RSUI argued, as did the Councilmen, that the St. Bernard Parish Government is located in St. Bernard Parish and the cause of action arose in St. Bernard Parish. Thus, venue was only proper in St. Bernard Parish. For these same reasons, RSUI also pled decli-natory exceptions of improper venue as to the Councilmen’s and the St. Bernard Parish Government’s cross-claims against RSUI.

Following a hearing on April 12, 2016, the trial court issued a written judgment on July 27, 2016: granting RSUI’s exception of improper venue and dismissing plaintiffs’ claims without prejudice; granting RSUI’s exception of | improper venue as to the cross-claim filed by the St. Bernard Parish Government and dismissing the cross-claim without prejudice; granting RSUI’s exception of improper venue as to the cross-claim filed by the Councilmen and dismissing the cross-claim without prejudice; and granting the exception of improper venue filed by the St. Bernard Parish Government and the Councilmen and dismissing plaintiffs’ claims without prejudice.

In its written reasons for judgment, the trial court relied on La. R.S. 13:5104(B) to find that venue was improper in Jefferson Parish as to plaintiffs’ demand against the St. Bernard Parish Government and the Councilmen. It found that the St. Bernard Parish Government is a political subdivision of the state, and the Councilmen were councilmen of the St. Bernard Parish Council at the time of the occurrences that gave rise to the causes of action asserted. The trial court found that the Government and its Councilmen are located in St. Bernard Parish, and the causes of action asserted arose in St. Bernard Parish. As to RSUI, the trial court found that under the provisions of the Direct Action Statute, RSUI may only be sued jointly with its insured, and since the mandatory venue for the St. Bernard Parish Government is in St. Bernard Parish, plaintiffs’ suit against RSUI is improper in Jefferson Parish. For these same reasons, the trial court also found venue improper as to the Councilmen’s and the St. Bernard Parish Government’s cross-claims against RSUI. Additionally, the trial court found venue improper under La. C.C.P. arts. 42(7) and 76. According to the trial court, RSUI issued directors and officers liability policies to the St. Bernard Parish Government. Pursuant to La. C.C.P. art. 76, an action on this type of insurance policy may be brought in the parish where the loss occurred or the insured is domiciled. The trial Lcourt found that St. Bernard Parish Government and its Councilmen are domiciled in St. Bernard Parish and any loss that they might sustain would occur there.

This timely appeal followed.

ASSIGNMENT OF ERROR

In their only assignment of error, plaintiffs argue that “[i]n the interest of justice and judicial economy, the trial court should have transferred the claims to the parish of St. Bernard, pursuant to L[a]. C.C.P. [a]rt. 121, instead of dismissing the claims.” According to plaintiffs, transferring the entire matter would “eliminate any potential prescription issues” and “allow for all of the claims to be efficiently handled in one venue.” Plaintiffs note that the present situation leaves the claims against the Times Picayune and Mr. Alexander-Bloch pending in Jefferson Parish, and these pending claims will require the involvement and participation of the dismissed parties. In the interest of justice, plaintiffs request that the judgment be modified to transfer the entire matter to St. Bernard Parish.

When an action is brought in a court of improper venue, the court may dismiss the action, or in the interest of justice, transfer it to a court of proper venue. La. C.C.P. art. 121; See also Chehardy, Sherman, Ellis, Breslin & Murray v. Amerasia Co., 96-384 (La.App. 5 Cir. 11/14/96), 694 So.2d 355, 357. A jurisprudential rule has evolved that when a plaintiff does not knowingly file suit in the wrong venue, transfer to the correct venue is proper. Said another way, when a plaintiff does not have sufficient knowledge to ascertain the correct venue or acts | nupon incorrect knowledge and erroneously files suit in the wrong venue, the case should be transferred to a court of proper venue pursuant to La. C.C.P. art. 121. However, when a plaintiff knowingly files suit in the wrong venue, dismissal is proper. Marler v. Petty, 94-1851 (La. 4/10/95), 653 So.2d 1167, 1171.

In brief, defendants argue that plaintiffs had knowledge of the appropriate venue because they had previously filed a petition for damages in St. Bernard Parish in which they alleged many of the same actions by St. Bernard Parish Government and its Councilmen. Further, courts have uniformly recognized that the venue provision for suits against political subdivisions set out in La. R.S. 13:5104(B) is mandatory and no other venue provisions or exceptions are applicable. See, e.g., Colvin v. La. Patient’s Comp. Fund Oversight Bd., 06-1104 (La. 1/17/07), 947 So.2d 15. It is thus clear that under this statute, venue is only proper in St. Bernard Parish, where the political subdivision is located and where the cause of action arose as to the dismissed defendants.

Upon review, we find that plaintiffs have not shown that they lacked sufficient knowledge to determine that the proper venue for their actions against the St. Bernard Parish Government, the Councilmen, and RSUI was in St. Bernard Parish. Rather, after reviewing the petition and its allegations, it is obvious that plaintiffs indeed had sufficient knowledge to ascertain that the political subdivision is located in St. Bernard Parish, and that the asserted causes of action as to the dismissed defendants arose in St. Bernard Parish. Accordingly, we find that the trial court did not abuse its discretion in dismissing defendants’ claims without prejudice, rather than transferring them to St. Bernard Parish. As such, plaintiffs’ assignment of error is without merit.

CONCLUSION

For the forgoing reasons, the trial court’s judgment dismissing without prejudice, rather than transferring, plaintiffs’ claims against the St. Bernard Parish | government, the Councilmen, and RSUI, and the cross-claims against RSUI, is affirmed.

AFFIRMED

      . St. Bernard Parish Government also filed an exception, answer, and a cross-claim against RSUI, However, it did not assert a declinatory exception of improper venue.

      . As previously noted, the record does not reflect that the St. Bernard Parish Government filed a declinatory exception of improper venue.

      . In its appellee brief, RSUI first argues that the appeal should be dismissed because the proper procedural device for review of a dec-linatory exception of improper venue is an application for a supervisory writ. Relying on the Louisiana Supreme Court’s decision in Land v. Vidrine, 10-1342 (La. 3/15/11), 62 So.3d 36, RSUI argues that a ruling on venue is an interlocutory judgment, and thus plaintiffs were required to seek review thereof via a supervisory writ, rather than by appeal. Although we recognize the decision in Land, supra, we also recognize that the court therein was considering a different procedural situation than in the present case. In the present case, when the trial court granted defendants’ exceptions of improper venue, it dismissed plaintiffs’ actions against certain defendants without prejudice, unlike in Land, where the action was transferred to another jurisdiction. Thus, in the present case, the asserted causes of action are no longer pending in any court. Accordingly, we will review this matter under our appellate jurisdiction.

      . Plaintiffs do not assign as error the trial court's grant of the exceptions of improper venue as to any of the parties; rather, plaintiffs only assert on appeal that the trial court abused its discretion in dismissing the claims without prejudice, instead of transferring them to St. Bernard Parish, Accordingly, the trial court’s grant of the exceptions of improper venue as to any of the parties is not before us on appeal.


author: CRAIN, J.

text:
    STATE of Louisiana v. HUY THE DAO
    NO. 2016 KA 1076
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: June 2, 2017

      Hillar C. Moore, III, District Attorney, Allison Miller Rutzen, Assistant District Attorney, Baton Rouge, Louisiana, Attorneys for Appellee, State of Louisiana
    Greg Gouner, Baton Rouge, Louisiana, Attorney for Appellant, Huy The Dao
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

|2The defendant, Huy The Dao, was convicted of indecent behavior with a juvenile, a responsive verdict to molestation of a juvenile, and sentenced to two years imprisonment at hard labor, which was suspended, with two years active, supervised probation. See La. R.S. 14:81; La. R.S. 14:81.2. The defendant now, appeals arguing that the state failed to timely bring the case to trial and that his constitutional right to a speedy trial was violated. We affirm the conviction and sentence.

DISCUSSION

The defendant was convicted after a trial at which the victim testified that when he was sixteen years old, the defendant, who was his employer and godfather, touched his penis, performed' orál sex on him, and attempted to engage in anal sex with him. The defendant does not challenge the sufficiency of the evidence supporting his conviction. Rather, he complains about the timeliness of his trial, contending that the trial court erred in denying his motion to quash or dismiss his case for lack of speedy trial and failure to prosecute.

Generally, no trial shall be commenced in a non-capital felony case after two years from the date of the institution of prosecution, meaning the filing of an indictment, or the filing of an information, or affidavit, which is designed to serve as the basis of a trial. See La. Code Crim. Pro. arts. 578A(2) and 934(7). However, when a defendant files a motion to quash or other preliminary plea, that time period is suspended until the ruling of the court thereon; but, in no case shall the state have less than one yeah after the ruling to commence the trial. See La. Code Crim. Pro. art. 580A. A preliminary plea is any pleading or motion filed by the defense that has the effect of delaying trial, including properly filed motions to quash, motions to suppress, or motions for a continuance,' as well as applications for discovery and bills of particulars. State v. Allen, 03-2815 (La. 4/23/04), 871 So.2d 1097, 1102. A motion for preliminary examination has the effect of delaying trial and is therefore also considered a preliminary plea. See State v. Harris, 11-253 (La.App. 5 Cir. 12/28/11), 83 So.3d 269, 283, writ denied, 12-0401 (La. 8/22/12), 97 So.3d 376.

In the instant case, -the state filed a bill of information on August 7, 2013. On October 25, 2013, the defendant filed numerous pretrial motions, including a motion for preliminary examination. The two-year time period for commencement of trial was then suspended until April 22, 2014, the date the trial court held the preliminary examination hearing and found probable cause. See La. Code Crim. Pro. arts., 578A(2) and 580A. The state had the balance of the prescriptive period (as it was longer than the one-year minimum time period provided by Louisiana Code of Criminal Procedure article 580), approximately twenty-two months, to bring the case to trial. See State v. Fish, 05-1929 (La. 4/17/06), 926 So.2d 493, 494. Fourteen months later, on September 29, 2015, the defendant’s jury trial was timely commenced. The trial court correctly denied the defendant’s motion to quash.

The defendant next asserts that his conviction and sentence should 'be set aside because his constitutional right to a speedy trial was violated. A defendant’s right to a speedy trial is guaranteed by both the federal and state constitution. See U.S. Const. amends VI, XIV; La. Const, art. 1, § 16; see also Klopfer v. State of North Carolina, 386 U.S. 213, 222-23, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967); State v. Love, 00-3347 (La. 5/23/03), 847 So.2d 1198, 1209. Whether there has been a violation of a defendant’s, right to a speedy trial requires weighing the conduct of both the prosecutor and the defendant in light of the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Edüd 101 (1972): (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant. See Love, 847 So.2d at 1210; State v. Bodley, 394 So.2d 584, 594 (La. 1981). None of these four factors are “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Barker, 92 S.Ct. at 2193. Instead, they are related factors to be considered together “in a difficult and sensitive balancing process.” Id.

Until there is some delay that is presumptively prejudicial, it is not necessary to inquire into the remaining factors of the balancing test. See Barker, 92 S.Ct. at 2192; State v. Mathews, 13-0525 (La. 11/15/13), 129 So.3d 1217, 1218; Lave, 847 So.2d at 1210. In this case, the delay between the institution of prosecution and the trial date was slightly under twenty-six months. The complained of delay between the preliminary exam and trial date is even shorter, measuring just over seventeen months. -These delays are not presumptively prejudicial; therefore we are not required to consider the remaining factors.

The defendant’s arguments are without merit.

CONVICTION AND SENTENCE AFFIRMED.