author: McDonald, j.

text:
    Curtis SHEPHERD Sr., Debra Williams, Michael Shepherd, Linda Shepherd, Nathaniel Shepherd Jr., Stehpen Shepherd, Christopher Shepherd, and Rodney Shepherd, Individually and as the Heirs of Nadine Shepherd and on Behalf of the Estate of Nadine Shepherd v. BATON ROUGE CARDIOLOGY CENTER, Dr. Rodney Evens, Dr. Venkat Surakanti, Our Lady of the Lake Regional Medical Center, [and East] Baton Rouge Parish Emergency Medical Services
    2017 CA 0321
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 01, 2017

      Quincy M. Richard, Jr., Stácy L. Chris-tophe, Baton Rouge, Louisiana, Attorneys for Plaintiffs/Appellants, Curtis Shepherd, Sr., Debra, Williams, Michael Shepherd, Linda Shepherd, Nathaniel Shepherd, Jr., Stehpen Shepherd, Christopher Shepherd, and Rodney Shepherd, Individually And as the Heirs of Nadine Shepherd, And on behalf of the Estate of Nadine Shepherd
    Tara S. Bourgeois, Carey M. Nichols, Baton Rouge, Louisiana, Attorneys for De-feridants/Appellees, Baton Rouge Cardiology Center, Dr. Evens Rodney, And Dr. .Venkat Surakanti
    Cullen J. Dupuy, Jordan L. Faircloth, Druit G. Gremillion, Kelsey A. Clark, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Our Lady of the Lake Regional, Medical Center
    BEFORE: WHIPPLE, C.J., McDonald, and chutz, jj.
   McDonald, j.

lain this case the plaintiffs, Curtis Shepherd, Sr., Debra Williams, Michael Shepherd, Linda Shepherd, Nathaniel Shepherd, Jr., Stehpen Shepherd, Christopher Shepherd, and Rodney Shepherd, appeal a summary judgment rendered in favor of the defendants, Baton Rouge Cardiology Center, L.L.C. (Baton Rouge Cardiology Center), Dr. Evens Rodney, Dr. Venkat Surakanti, and Our Lady of the Lake Hospital d/b/a Our Lady of The Lake Regional Medical Center (OLOL), dismissing all claims asserted by the plaintiffs, with prejudice. After a de novo review, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 8, 2016, the plaintiffs filed this suit for damages, individually and as the heirs of Nadine Shepherd (their mother, hereafter Ms. Shepherd), and on behalf of the estate of Nadine Shepherd, naming as defendants Dr. Rodney, Dr. Surakanti, Baton Rouge Cardiology Center, and OLOL. The plaintiffs maintained that the defendants were liable to them for general and special damages following treatment of Ms. Shepherd by Dr. Rodney and Dr. Surakanti at the Baton Rouge Cardiology Center and an angioplasty procedure performed on Ms. Shepherd by Dr. Surakanti at OLOL on June 14, 2012. The plaintiffs alleged that Dr. Surakanti performed an unnecessary angioplasty on Ms. Shepherd, who was 74 years old, diabetic, morbidly obese, and unable to walk. The plaintiffs maintained that Ms. Shepherd suffered ongoing health issues “resulting from the failed procedure” but nonetheless was discharged from OLOL and passed away less than three weeks later.

14The plaintiffs alleged that Dr. Surakan-ti and Dr. Rodney were acting within the course and scope of their employment with Baton Rouge Cardiology Center, rendering Baton Rouge Cardiology Center liable under the theories of respondeat superior and/or strict liability. The plaintiffs maintained the defendants’ treatment of Ms. Shepherd was careless, negligent, and improper, and that she did not give informed consent to the cardiac surgical procedure. The plaintiffs asserted that the defendants’ treatment amounted to malpractice. They averred that the defendants caused Ms. Shepherd serious, severe, and permanent physical injuries and emotional distress, and caused her death. The plaintiffs asked for damages for Ms. Shepherd’s pain and suffering, loss of enjoyment of life, loss of chance of survival, and her wrongful death, including medical expenses, funeral and burial expenses, the loss of affection and companionship, and all general and special damages allowed by law.

The plaintiffs maintained that their claims were presented to a Medical Review Panel, which was extended from Sunday, April 4, 2015 to Monday, October 4, 2015. They maintained that a Medical Review Panel hearing was set for September 3, 2015 and then cancelled, and that the Sunday, October 4, 2015 deadline passed without a decision; thus, they asserted the panel had dissolved automatically. The plaintiffs asserted that on Monday, October 5, 2015, OLOL filed a motion to extend the life of the panel, but that it was too late as it had already dissolved. The plaintiffs asked for judgment in their favor and against the defendants for damages, court costs and expenses, interest, expert witness fees, and all other general equitable relief.

Dr. Rodney, Dr. Surakanti, and Baton Rouge Cardiology Center answered the suit, denying liability and asserting that the petition was only partially accurate and that it used the medical records in a way that was conclusory, selective, and misleading. Dr. Rodney, Dr.' Surakanti, and Baton Rouge Cardiology Center | ¡¡averred that they were -qualified health care providers under La. R.S. 40:1231.2, pled the fault of third parties for whom they were not legally responsible, pled the negligence and fault of Ms. Shepherd for her failure to follow medical advice and instruction and other omissions in mitigation or bar of recovery. Dr. Rodney, Dr. Surakanti, and Baton Rouge Cardiology Center asked for judgment in their favor, and against the plaintiffs, and that the case be dismissed with prejudice at the plaintiffs’ cost, and for all general, legal, declaratory, and equitable relief available.

OLOL answered 'the suit, denying liability, and maintained that the medical record information presented in the petition was incomplete. OLOL pled the entirety of Ms. Shepherd’s medical records in response to the allegations and asserted that the care it provided to Ms. Shepherd was within the standard of care. OLOL asserted that Judge Timothy Kelley signed an order in Nineteenth Judicial District Court case number 631,952 on October 19, 2015, extending the life of the Medical Review Panel until October 4, 2015, and that the plaintiffs allegations in paragraphs 38 through 41 contained an improper collateral attack upon Judge Kelley’s ruling.

OLOL asserted that it was a qualified health care provider under La. R.S. 40:1231.1, et seq., that the Medical Review Panel had found no deviation from the standard of care by OLOL, and that the care rendered by the staff at OLOL was within the standard of care. OLOL pled the failure of Ms. Shepherd to follow the instructions of doctors, nurses, or other healthcare providers, and her failure to provide correct information to healthcare providers, as a bar or reduction to the plaintiffs’ recovery. OLOL also pled the fault of third parties for whom it was not |¡¡responsible as a bar or-reduction of recovery. OLOL prayed for judgment in its favor and, against the plaintiffs, and for dismissal of the plaintiffs’ claims against it with prejudice. In the alternative, and only in the event of a judgment rendered against it, OLOL pled the limitation of liability in accordance with La. R.S. 40:1231.1, et seq., and the reduction in recovery by an amount commensurate with the fault of Ms. Shepherd and by an amount commensurate with the fault of third parties for whom it was not responsible. ,

Thereafter, OLOL filed a motion to strike paragraphs 38 through 41 of the plaintiffs’ petition as an improper collateral attack on Judge Kelley’s ruling in case number 631,952 that extended the life of the Medical Review Panel. After a hearing on April 11, 2016, the motion to strike was granted as to. all parties, by judgment dated April 26, 2016.

On May 20, 2016, Dr. Rodney, Dr. Sura-kanti, and Baton Rouge Cardiology Center filed a motion for summary judgment, 'maintaining that a Medical Review Panel had. determined that they did not breach the standard of care in their treatment of Ms. Shepherd, that the plaintiffs had not identified, an expert witness to testify that they had breached the standard of care, that expert, testimony was required to prove Mrs. Shepherd’s lack of consent, and that therefore, there was no genuine issue of material fact and summary judgment in their favor was appropriate. They prayed for summary judgment in their favor, dismissing the plaintiffs’ claims with prejudice, at the plaintiffs’ cost.

On May 25, 2016, OLOL filed a motion for summary judgment, asserting that there were no genuine issues of material fact, that the Medical Review Panel had determined that there was no deviation from the standard of care by OLOL, that the plaintiffs had no expert witness to give an opinion as to the standard of care OLOL owed to Ms. Shepherd, to offer an opinion that OLOL had breached the standard of care owed to Ms. Shepherd, or to formulate an opinion that OLOL’s factions were a cause of or contributed to Ms. Shepherd’s death. Thus, OLOL asserted that the plaintiffs had identified no experts to establish the essential elements óf their claim. The plaintiffs did not file an opposition to the motion for summary judgment.

At the hearing on both motions for summary judgment on August 8, 2016, the plaintiffs did not make an appearance. The district court found no genuine issue as to any material fact' regarding the claims made by the plaintiffs against Dr. Rodney, Dr. Surakanti, Baton Rouge Cardiology Center, and OLOL, and dismissed with prejudice all of the plaintiffs’ claims against them. The judgment was signed on September 12, 2016.

On appeal, the plaintiffs ’ make five assignments of error. Assignments of error numbers one and two address rulings made in case number" 631,952. In their assignments of error, the plaintiffs assert that 1) "the district court erred in granting the City of Baton Rouge/Parish of East Baton Rouge Department of Medical Services’ (EMS’s) exception of no right of action; 2) the district court lacked the authority to extend the life of the medical review panel once it had expired; 3) OLOL’s motion for security for costs of the Medical Review Panel should have been denied;. 4) the defendants’ request that paragraphs 38 through 41 of the plaintiffs’ petition for damages be stricken as an improper collateral attack on Judge Kelley’s ruling should- have been denied; and 5) the defendants’ motion for summary judgment was not supported by sufficient evidence.

Assignment of error number one addresses Judge Kelley’s judgment granting EMS’s exception of no right of action in case number 631,952, In that proceeding, EMS raised an exception of no right of action, "which was granted. After the Medical Review Panel made its ruling, this suit for damages was filed in Lease number 644,828, and the motions for summary judgment were filed, were unopposed, and were granted. This assignment of error is a collateral attack on a ruling made in case number 631,952 and that ruling is not before us in the appeal of an unopposed summary judgment rendered in case num-. ber 644,828. Thus, we need not address assignment of errpr number one.

Assignment of error number two addresses Judge Kelley’s ruling granting a motion to extend the life of the Medical Review Panel in case number 631,952. That ruling is not before us in the appeal of an unopposed summary judgment rendered in case number 644,828; thus, we need not address this assignment of error.

Assignment of error number three addresses an interlocutory ruling granting OLOL’s motion for the plaintiffs to post security for costs of the Medical Review Panel. Louisiana Revised Statute 40:1231.8(I)(2)(c) provides:

In a medical malpractice suit filed by the claimant in which a unanimous opinion was rendered in favor of the defendant health care provider as provided in the expert opinion stated in Paragraph (G)(2) of this Section, the claimant who proceeds to file such a suit shall be required to post a cash or surety bond, approved by the court, in the amount of all costs of the medical review panel. Upon the conclusion of the medical malpractice suit, the court shall order that the cash or surety bond be forfeited to the defendant health care provider for reimbursement of the costs of the medical review panel, unless a final judgment is rendered finding the defendant liable to the claimant for any damages. If a final judgment is rendered finding the defendant liable to the claimant for any damages, the court shall order that the defendant health care provider reimburse the claimant an amount equal to, thé cost of obtaining the cash or surety bond posted by the | flclaimant.

Louisiana Revised Statute 40:1231.8(G)(2) provides:

G. The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following.expert opinions, which shall be in writing and signed by the panelists, together with written reasons for their conclusions:
* * sfc ⅜ ⅜
(2) . The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.

The Medical Review Panel determined unanimously that there was no deviation from the appropriate standard of care and that all- phases of care were appropriate, in accordance with La. R.S. 40:1231.8(G)(2). Thus, we find no abuse of discretion by the district court in granting OLOL’s motion for the plaintiffs to post security for costs for the Medical Review Panel in accordance with La. R.S. 40:1231.8(I)(2)(c). This assignment of error has no merit.

Assignment of error number four addresses an interlocutory ruling granting OLOL’s motion to strike paragraphs 38 through 41 of the plaintiffs’ petition, which contain a collateral attack on a ruling by Judge Kelley in case number 631,952 that extended the life of the Medical Review Panel. We find no abuse of discretion by the district court in granting the motion to strike the paragraphs which contained a collateral attack on a ruling in the previous case. This assignment of error has no merit.

Assignment of error number five asserts that the defendants’ motion for summary judgment was not supported by sufficient evidence.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used when there is [ 1flno genuine issue of material fact for all or part of the relief prayed for by a litigant. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880, 882-883.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966D(1). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law applicable to the case. Pumphrey v. Harris, 2012-0405 (La. App. 1 Cir. 11/2/12), 111 So.3d 86, 89.

Louisiana Revised Statute 9:2794(A) provides that in a medical malpractice action, the plaintiff has the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians .:. within the involved medical specialty,

In a medical malpractice action against a physician, the plaintiff must establish by a preponderance of the evidence the applicable standard of care, a | n violation of that standard of care, and a causal connection between the alleged negligence and the plaintiffs injuries. Likewise, in a medical malpractice action against a hospital, the plaintiff must prove that the hospital caused the injury when it breached its duty. Expert testimony is generally required to establish the applicable standard of care and whether that standard of care was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Penn v. CarePoint Partners of Louisiana, L.L.C., 2014-1621 (La. App. 1 Cir. 7/30/15), 181 So.3d 26, 30.

After a thorough review of the record, we conclude that the circumstances of this case do not fall within the category of exceptions to the general rule requiring expert medical testimony to establish the particular medical standard of care and breach of that standard of care. Thus, the plaintiffs were required to come forward with expert medical testimony sufficient to satisfy their evidentiary burden of proof at trial. They failed in this burden. Specifically, there is no testimony or evidence in the record that sets forth the standard of care applicable to Dr. Rodney, Dr. Surakanti, Baton Rouge Cardiology Center, or OLOL in the care and treatment of Ms. Shepherd, or that establishes any negligent action or omission on the defendants’ part caused or contributed to Ms. Shepherd’s decline and demise. To the contrary, the unrebutted opinion of the Medical Review Panel was that there was no evidence that Dr. Rodney, Dr. Surakanti, Baton Rouge Cardiology Center, or OLOL failed to meet the applicable standard of care. See Vanner v. Lakewood Quarters Ret. Cmty., 2012-1828 (La. App. 1 Cir. 6/7/13), 120 So.3d 752, 756.

The Medical Review Panel found that “there was no deviation from the appropriate standard of medical care by Baton Rouge Cardiology Center, [Dr. Rodney], [Dr. Surakanti], and [OLOL], and that “[u]nfortunately the patient had a recognized, while uncommon, complication from this indicated procedure.” The Medical Review Panel further found:

112There was proper documentation of the risks and benefits of the procedure as well as the post-operative care. Dr. Rodney appropriately performed stress testing which led to an appropriate angi-ogram[.] The patient was also treated with appropriate anti-anginal medical therapy as tolerated by her blood pressure and continued to have restanginal interfering with dialysis and her quality of life. This led to the surgical rejection and refusal for an open, bypass surgery. Dr. Surakanti attempted angioplasty which was appropriate. All phases of care were appropriate. The care rendered by the staff of [OLOL] was within the standard of care.

The defendants’ having established their burden of proof on the motion, it was incumbent upon the plaintiffs to produce factual support in the form of expert testimony sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial on these issues. The plaintiffs failed to do so, and summary judgment was therefore appropriate. See Vanner, 120 So.3d at 757.

CONCLUSION

Thus, for the foregoing reasons, we affirm the district court’s September 12, 2016 judgment dismissing with prejudice the claims of Curtis Shepherd, Sr., Debra Williams, Michael Shepherd, Linda Shepherd, Nathanial Shepherd, Jr., Stehpen Shepherd, Christopher Shepherd, and Rodney Shepherd, individually and as the heirs of Nadine Shepherd, and on behalf of the estate of Nadine Shepherd, against Dr. Evens Rodney, Dr. Venkat Surakanti, Baton Rouge Cardiology Center, L.L.C., and Our Lady of the Lake Hospital d/b/a Our Lady of The Lake Regional Medical Center. Costs of this appeal are assessed against Curtis Shepherd, Sr., Debra Williams, Michael Shepherd, Linda Shepherd, Nathanial Shepherd, Jr., Stehpen Shepherd, Christopher Shepherd, and Rodney Shepherd.

AFFIRMED.

      . We note that Dr. Evens Rodney is at times erroneously referred to in the record as Dr. Rodney Evens or Dr. Rodney Evans.

      . Case number 631,952 was filed during the pendency of the Medical Review Panel to resolve discovery disputes and procedural • matters and was presided over by Judge Kelley. Excerpts from the record in case number 631,952 were attached as exhibits in the record in this case.

      . In addition to the discovery and procedural matters presided over by Judge Kelley in case number 631,952, he granted an exception of no right of action filed by EMS. We are not aware of any appeal from this ruling.

      . Under La. R.S. 13:4231, res judicata bars relitigation of a subject matter arising from the same transaction or occurrence as a previous suit. Mandalay Oil & Gas, L.L.C. v. Energy Dev. Corp., 2001-0993 (La, App. 1 Cir. 8/4/04), 880 So.2d 129, 135, writ denied, 2004-2426 (La. 1/28/05), 893 So.2d 72.

      .We note, however, that the Medical Review Panel had been extended to Sunday, October 4, 2015, which was a legal holiday. See La. R.S. 1:55A(1). Louisiana Code of Criminal Procedure art. 5059 provides that when computing time, the last day of the period is to be included, unless it is a legal holiday, in .which event the period runs until the end of the next day which is not a legal holiday. Thus, the motion to extend the life of the Medical Review Panel was filed Monday, October 5, 2015, the last day of the extended time period.


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    ACADIAN PROPERTIES NORTHSHORE, L.L.C. v. Louis FITZMORRIS, in his Capacity as St. Tammany Parish Assessor, Rodney J. Strain Jr., in his Capacity as Ex-Officio Tax Collector, and the Louisiana Tax Commission
    NO. 2017 CA 0424
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 1, 2017

      Robert S. Reich, Lawrence R. Plunkett Jr., Metairie, Louisiana, Attorneys - for Plaintiff/Appellant, Acadian Properties Northshore, L.L.C.
    Patrick J. B.errigan, Slidell, Louisiana, Attorney for Defendant/Appellee, Louis Fitzmorris, in his capacity as St. Tammany Parish Assessor '
    Charles M. Hughes Jr,, Mandevill'e, Louisiana, Attorney for Defendant/Appel-lee, Rodney J. Strain Jr,, in his capacity as Ex-Officio Tax Collector
    Robert D. Hoffman Jr., Covington, Louisiana Attorney for Defendant/Appellee; Louisiana Tax Commission
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN,- JJ.
   CRAIN, J.

bThis case involves a challenge to an ad valorem property tax assessment. The plaintiff appeals a summary judgment dismissing its petition with prejudice. Finding a procedural ■ error, we vacate the summary judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Acadian Properties Northshore, L.L.C., owns an eight-acre parcel of land in St. Tammany Parish. Beginning in 2008, the property was assessed as “bona fide- timberland,” which meant its assessed valuation was determined based on. the parcel’s use value instead of its -fair market value.. See La. Const. art. VII, § 18; La. R.S. 47:2301-09, In 2015, citing Acadian’s efforts, to develop the property for a shopping center, the St. Tammany. Parish Assessor’s Office notified.. Acadian the property did not meet the requirements for “timberland”; therefore, it was not -eligible for the use value assessment. As a consequence, the Assessor sought addi-, tional taxes and, penalties for several prir or years in question, including 2012 and 2014.

Acadian responded by suing Louis Fitz-morris, in his capacity as St. Tammany Parish Assessor; Rodney J. Strain, Jr., in his capacity as the St. Tammany Parish Tax Collector; and the Louisiana Tax Commission. Acadian’s petition focused on two claims: (1) for the 2012 assessment, the Assessor could not retroactively change the use value as qualified timberland and assess additional taxes for that tax year; and (2) for the 2014 assessment, the Assessor ignored the proper classification of the property as bona fide timberland. Acadian paid the 2014 taxes under protest and sought a refund of those taxes.

After the defendants answered, Acadian filed á motion for partial summary judgment challenging the validity of the “retroactive”- 2012 assessment. The [^motion was set for hearing on November 21, 2016. Twelve days before the hearing, the Assessor filed an opposition to Acadian’s motion and a “cross-motion for summary judgment,” seeking dismissal of all of Acadian’s claims. Relying on several alternative arguments, the Assessor maintained Acadian did not exhaust its administrative remedies, the property did not qualify for a use value assessment, and Acadian was statutorily barred from challenging the assessed value of the property due to its failure to timely contest the assessments.

The district court ordered Acadian to appear and show cause on December 20, 2016, why the Assessor’s motion for summary judgment should not be granted. The order, which was apparently filed with the Assessor’s motion, contained a type-written hearing date of November 21, 2016, but the signed order replaced that date with a hand-written date of December 20, 2016.

At the November 21, 2016 hearing on Acadian’s motion for partial summary judgment, Acadian’s attorney objected to the timeliness of the Assessor’s opposition and requested that the opposition be stricken and opposing counsel be prohibited from presenting oral argument. Acadi-an’s attorney noted, “[The Assessor] also filed something which is entitled a [cross] motion for summary judgment. It was not properly filed, it was not properly noticed, [and] it is not set for hearing today.”

The district court denied Acadian’s partial summary judgment motion and granted the Assessor’s cross-motion. When Acadian’s attorney objected that the Assessor’s motion was not before the court, the district court said it would “suspend the rule of the Court and allow them to file late.” A judgment was signed on December 14, 2016, denying summary judgment for Acadian, granting the Assessor’s motion, and dismissing Acadian’s petition with prejudice. Acadian Lappeals, arguing, in relevant part, the district court erred by granting summary judgment in favor of the Assessor.

DISCUSSION

Subject Matter Jurisdiction

The Assessor argues the district court lacked subject matter jurisdiction to hear this dispute. Consequently, before addressing the merits of Acadian’s appeal, we must determine whether the district court had subject matter jurisdiction. If it did not, then this court likewise lacks jurisdiction, except to vacate the district court’s judgment to correct the error in entertaining the suit. See Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 01-0185 (La. 10/16/01), 797 So.2d 656, 663; see also Motorola, Inc. v. Associated Indemnity Corporation, 02-0716 (La. App. 1 Cir. 4/30/03), 867 So.2d 715, 717 (en banc).

Generally, suits contesting ad va-lorem assessments fall into one of two categories: (1) a “correctness” challenge, which must first be submitted to a board of review, then to the Louisiana Tax Commission and, after exhaustion of those remedies, the district court has appellate jurisdiction; and (2) a “legality” challenge, which is within the original jurisdiction of the district court. See La. Const. art. VII, §§ 3(A) and 18(E); La. R.S. 47:1992B(1), 1998A(1)(a), and 2134C(1); . Giselair v. Louisiana Tax Commission, 09-0007 (La. 6/26/09), 16 So.3d 1132, 1135; Triangle Marine, Inc. v. Savoie, 95-2873 (La. 10/15/96), 681 So.2d 937, 939. Therefore, the nature of a challenge to an ad valorem assessment determines which tribunal has original jurisdiction over the proceeding. See Gisclair, 16 So.3d at 1135.

In the absence of evidence introduced at a hearing, the allegations in the petition, considered in light of the applicable jurisprudence, determines whether the claim is a correctness challenge or a legality challenge. See Gisclair, 16 So.3d Rat 1138. Where the appeal record contains no reviewable evidence relative to jurisdiction, the factual allegations of the petition must be accepted as true. See Beasley v. Nezi, LLC, 16-1080 (La. App. 1 Cir. 9/8/17), 227 So.3d 308, 315 (2017 WL 3947889); State v. Illinois Central Railroad Company, 04-1789 (La. App. 1 Cir. 12/22/05), 928 So.2d 60, 68. The jurisdiction question presented is whether the petition challenges the correctness of the assessment, or its legality. See Gisclair, 16 So.3d at 1138.

Acadian’s allegations regarding the 2012 and 2014 assessments rely on the characterization of the property as “timberland.” Specifically, the petition alleges:

The [pjroperty is and has at all pertinent times hereto been in full compliance with the bona fide timberland requirements of La. R.S. 47:2302. On or about November or December of 2012 trees on the property were' cut for timber. On or about January of 2014, trees were replanted on the property, within the three year period required under the statute, maintaining its true status as bona fide timberland.

Specific to the 2012 assessment, Acadian alleges the Assessor sent a tax bill in April 2015 for the tax year 2012 that “does not reflect an assessment of the property as timberland which use it previously had been assessed.” The petition further states:

V.
The tax assessor had no authority to retroactively change the Use Value of the property three years after the subject property was assessed as timberland. Such a retroactive change is in direct violation of La. R.S. 47:1966 and such retroactive taxation was and is illegal.
VI.
The property was assessed for use value as timberland in 2010, 2011, and 2012 and the tax bills were paid by Acadian.-The assessor of St. Tammany Parish amended these bills and a penalty was erroneously added together with the deletion of use value. This is in direct violation of La. R.S. 47:2301 et seq.

LFor the 2014 tax assessment, Acadian alleges:

In addition to the improper 2012 retroactive tax assessed against the [property, [the] tax assessor’s 2014 assessment of the property improperly denied the land use valuation that had been in place on the property for the previous seven years. The 2014 assessment ignores the. proper classification of the [plroperty as bona fide timber land pursuant to La. R.S. 47:2302 ... in violation of the statute.

Article VII, Section 18 of the Louisiana .Constitution mandates that property subject to ad valorem taxation be listed on the assessment rolls at its “assessed valuation.” In most instances, the assessed valuation is a stated percentage of the “fair market value” of the property. See La. Const. art. VII, § 18(A). However, Section 18 provides an exception for “bona fide ... timber lands,” which are assessed at “ten percent of use valúe rather than fair market value.” See La. Const. art. VII, § 18(C) (emphasis added). Section 18 more fully provides:

(C) Use Value. Bona fide agricultural, horticultural, marsh, and timber lands, as defined by general law, shall be assessed for tax purposes at ten percent of use value rather than fair ma/rket value. The legislature may provide by law similarly for buildings of historic architectural importance.
(D) Valuation. Each assessor shall determine the fair market value of all property subject to taxation within his respective parish or district except public service properties, which shall be valued at fair market value by the Louisiana Tax Commission or its successor. Each assessor shall determine the use value of property which is to be so assessed under the provisions of Paragraph (C). Fair market value and use value of property shall be determined- in accordance with criteria which shall be established by law and which shall apply uniformly throughout the state. [Italics added.]

Section 18 is supplemented by numerous statutes and regulations, including Louisiana -Revised Statute 47:2302D, which defines “[b]ona fide timberland” as

land stocked by forest trees of any size and specie, or formerly having such tree cover within the last three years and not currently developed or being used for nonforest purposes, and devoted to the production, in reasonable commercial quantities, of timber and timber products.

The “use value” of bona fide timberland means “the highest value of such land when used by a prudent i.. timber operator for the sole purpose of 17continuing the operation.” La. R.S 47:2301. The use value is determined through detailed formulas that, among other factors, consider the property’s projected net income and apply a capitalization rate based on tables developed by the Louisiana Tax Commission. See La. R.S. 47:2307C; see also La. Admin. Code Title 61, Part V, Chapter 27. Consistent with the constitutional mandate in Subsection 18(C) of Article VII, Louisiana Revised Statute 47:2301 provides:

Use value of such land shall be so established without reference to any other criteria of value particularly, but not as a limitation, without reference to fair market value or value to the public in general. [Emphasis added.]

Acadian alleged the subject property “is and has at all pertinent times hereto been in full compliance with the bona fide timberland requirements” of Section 47:2302. According to the petition, timber was cut and replanted on the property within the three year period required by the statute. Based on these allegations, which for purposes of our jurisdiction analysis must be accepted as true, the assessed valuation would be ten percent of the use value of the property, not fair market value. See La. Const. art. VII, § 18(C); La. R.S. 47:2307C. Acadian contends the Assessor disregarded the property’s qualified status as timberland and imposed an illegal assessment.

In PBGS, L.L.C. v. Duplechain, 13-278 (La. App. 3 Cir. 12/18/13), 130 So.3d 45, writ denied, 14-0114 (La. 4/4/14), 135 So.3d 641, the issue presented was whether an assessor properly classified property under Subsection 18(B) of Article VII. PBGS, L.L.C., 130 So.3d at 47. The assessor determined that salt caverns were “other property,” which under Subsection 18(B) would be assessed at 15% of fair market value, while the landowner alleged the caverns were “land,” which would be assessed at 10% of fair market value.

The property owners pursued relief before the Louisiana Tax Commission, but also filed suit in district court while the administrative proceeding was pending. PBGS, L.L.C., 130 So.3d at 47-48. The assessor filed a motion for summary judgment in the district court proceeding, asserting the salt caverns were properly classified as “other property.” The plaintiffs argued their claim was a “correctness' challenge,” and that the district court lacked jurisdiction. PBGS, L.L.C., 130 So.3d at 48. The district court recognized its jurisdiction and granted the assessor’s motion for summary judgment. Id.

The court of appeal agreed, concluding the plaintiffs’ allegations were a legality challenge, stating:

In successive paragraphs [of their petition], the plaintiffs make repeated claims of illegality in the imposition and enforcement of the 2011 assessment and the “misclassiffication]” of the salt caverns as “other property” contrary to La. Const, art. 7, § 18(B). The plaintiffs further assert that “controlling Louisiana tax law” and “the Louisiana Civil Code” dictate the classification of the salt caverns as “land” rather than “other property.”
In this light, it is difficult to see how the plaintiffs’ claim does not pose a legality challenge. Rather, the plaintiffs lodged a direct challenged the constitutionality and legality of the tax, as assessed. Further, the petition makes a separate and specific claim as to the “method of enforcement, .of these illegal taxes.”
[T]he essential claim of the plaintiffs’ petition is that La. Const, art. 7, § 18(B) ensures that the plaintiffs’ property is to be classified as “land” and subject to taxation at a rate of 10% of fair market value. The plaintiffs [assert] that, contrary to that constitutional provision, the Assessor classified their property as “other property” and subjected it to a taxation rate of 15% of fair market value. That classification, it must follow, was unconstitutional as applied to them.

PBGS, L.L.C., 130 So.3d at 52-53; see also Bass Partnership v. Gravolet, 12-0024 (La. App. 4 Cir. 11/21/12), 105 So.3d 224, 227, writ denied, 12-2741 (La. 3/1/13), 108 So.3d 1176 (a suit contesting an assessor’s determination that a piece of property was subject to a supplemental assessment, and seeking to invalidate the supplemental assessment, was a legality challenge).

I gAcadian claims bona fide timberland is constitutionally and statutorily required to be assessed at use value rather than fair market value. According to Acadian’s petition, the Assessor failed to follow that mandate. Unlike Gisclair, the plaintiff does not question the method used to arrive at fair market or use value, which determinations may involve some degree of discretion and judgment by an assessor. Rather, Acadian alleges the . Assessor failed to assess the property as required by law — on its use value; If, as Acadian alleges, the' property is qualified timberland, the Assessor has no discretion, and the assessment must be on use value. See La. Const. art. VII, § 18(C); La. R.S. 47:2307C. Otherwise, the assessment violates the law. Therefore, we find Acadian’s claim is a legality challenge and within the district court’s original jurisdiction. See La. Const. art. VII, § 3(A); PBGS, L.L.C., 130 So.3d at 53.

Motion for Summary Judgment

Acadian argues the district court erred by granting the Assessor’s motion for summary judgment when the motion was not before the court. To uphold a summary judgment on appeal, the record must reflect the mover secured the judgment in accordance with the procedure mandated by Louisiana Code of Civil Procedure article 966. See Las sere v. State, Department of Health & Hospitals, 00-0306 (La. App. 1 Cir. 3/28/01), 808 So.2d 513, 516; Macaluso v. Macaluso, 99-0935 (La. App. 1 Cir. 5/12/00), 762 So.2d 180, 183. The relative strength or weakness of a party’s case on the merits does not limit or otherwise affect the procedural protections afforded him for opposing a motion for summary judgment. See Lassere, 808 So.2d at 518.

The required notice for a hearing on a motion for summary judgment is governed by Article 966C. In pertinent part, Article 966C mandates that the |inhearing “shall be set not less than thirty days after the filing” of the motion, and notice of the hearing “shall be served on all parties in accordance with Article 1313(C) or 1314 not less than thirty days prior to the hearing.” See La. Code Civ. Pro. art. 966C(l)(a) and (b). The thirty-day notice is mandatory and is designed to give fan- notice of the evidentiary and legal bases for the motion. See Lassere, 808 So.2d at 516 (applying former version of article providing for ten-day notice). The adverse party then has time to respond with evidentiary documentation of his own, either in the form of affidavits or discovery devices, and to prepare to meet the legal argument of the moving party. Id. Moreover, procedural due process requires an opportunity to be heard, in addition to notice of the pen-dency of an action, and in conjunction therewith, adequate notice of the hearing is fundamental. Id.

Under Article 966C, the Assessor’s motion for summary judgment was filed too late to be heard on November 21, 2016. In fact, the Assessor’s motion was set for hearing on December 20, 2016. Although the Assessor says Acadian agreed to waive any objection to the Assessor’s motion being heard at the November 21 hearing, the record does not reflect such an agreement. When the hearing started, Acadian’s attorney stated the Assessor’s motion was not before the court that day. Acadian’s attorney repeated this statement after the district court granted the Assessor’s motion, prompting the court to “suspend the rule” and allow the Assessor “to file late.” The district court cannot unilaterally dispense with the pre-hearing notice required by Article 966C. Absent a waiver, if the required notice is not provided, the district court is procedurally barred from acting on the motion for summary judgment. See La. Code Civ. Pro. art. 966C; Lassere, 808 So.2d at 518. Here, the summary judgment was rendered without the thirty-day notice required by Article 966C(1). For that reason, the judgment is vacated.

^CONCLUSION

The December 14, 2016 judgment is vacated to the extent it granted the Assessor’s motion for summary judgment and dismissed Acadian’s petition. The case is remanded for further proceedings. The assessment of costs in this matter shall await a final disposition.

JUDGMENT VACATED; CASE REMANDED.

      . Although exhibits were submitted in support of the Assessor’s motion for summary judgment, as explained later herein, the Assessor's motion was not properly before the district court for hearing. Therefore,- the exhibits submitted with that motion are not reviewable in connection with our resolution of the jurisdiction issue.

      . In finding jurisdiction, we express no opinion on the merits of Acadian’s allegations that the subject property is, in fact, qualified timberland.


text:
    Vicki BADEAUX v. STATE of Louisiana, THROUGH the LOUISIANA DEPARTMENT OF ECONOMIC DEVELOPMENT and John Does
    2017 CA 0599
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 01, 2017

      Brad R. Matthews, Baton Rouge, Louisiana, Attorney for Plaintiff/Appellee, Vicki Badeaux
    Jeff Landry, Attorney General, and Maynard K. Batiste, Sr., Assistant Attorney General, Attorneys for Defendant/Appellant, State of Louisiana through the Louisiana Department of Economic Development
    ■ BEFORE: WHIPPLE, C.J., McDonald, and chutz, jj.
   McDonald, j.

lain this appeal, a state entity appeals a judgment finding it.liable for damages to an actress the entity hired to film an informational video. The actress was injured when .the stand upon which she was instructed to hang her extra clothing toppled and struck her on the head. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 14, 2010, Vicki Badeaux was scheduled to perform as an actress in an informational video filmed by The Louisiana Department of Economic Development (LDED). As instructed, Mrs. Badeaux arrived at' the set with extra clothing from which her outfit for the video would be chosen. Mr. James Dupree, the LDED Fast Start Media Department Manager, instructed her to hang her extra outfits on a nearby C-stand so they could review her script before filming. The C-stand was a general purpose stand having an extendable arm and typically used for multiple purposes on a movie set. As Mrs. Badeaux hung her clothes -on the C-stand, it tipped over and struck her on the right side of the head. Mr. Dupree yelled a, warning and caught the C-stand before it fell completely over, but not before it struck Mrs. Badeaux and knocked her backward. Mr. Dupree sat Mrs. Badeaux in a nearby chair for about 15 to 30 minutes, noticed a red bump on her head, and asked if she needed medical treatment, which she declined. After Mrs. Badeaux said she could continue, Mr. Dupree chose her outfit, gave her a script, and her part in the video was filmed. .

About two weeks after the incident, Mrs. Badeaux began to have sharp, shooting pains in her right temple. Over the next seven months, she consulted her primary care physician, underwent brain imaging, and saw two neurologists. In May 2011, she was diagnosed with a mild concussive head injury and chronic post-traumatic headaches, attributable to the December 2010 incident. She took prescription medication for a while but experienced side effects and decided to discontinue the medication. At the time of trial, in December 2016, Mrs. Badeaux testified that she still had sharp shooting pains in her head.

lain December 2011, Mrs. Badeaux filed this personal injury suit against LDED, and the case ultimately proceeded to a bench trial. At the end of Mrs. Badeaux’s case, LDED moved for an involuntary dismissal, which the district court denied. LDED proceeded with its case, after which the district court took the case under advisement. On January 27, 2017, the district court signed a judgment: (1) finding LDED 75% at fault and Mrs. Badeaux 25% at fault for her damages; (2) finding Mrs. Badeaux sustained $8,345 in special damages and $41,655 in general damages; and (3) finding LDED liable to her for $37,500 (75% of her total damages), plus interest; and (4) ordering LDED to pay all court costs.

LDED appeals from the adverse judgment, asserting that the district court erred: (1) in denying its motion for involuntary dismissal, and (2) by finding Mrs. Badeaux sustained $41,655 in general damages when the evidence showed that not all of her medical expenses were attributable to the December 14,2010 accident.

INVOLUNTARY DISMISSAL

Although LDED characterized its motion as one for a directed verdict, it actually was a motion for involuntary dismissal, since this matter was- tried by a court rather than a jury. See LSA-C.C.P. arts. 1672 and 1810. Nevertheless, the error, is one of form rather than substance, as the ultimate , object of both motions is the same. Gillmer v. Parish Sterling Stuckey, 09-0901 (La. App. 1 Cir. 12/23/09), 30 So.3d 782, 785 n.2, Linder LSA-C.C.P. art. 1672B, after the plaintiff has presented his evidence, any party may move for dismissal of the action on the ground that, upon the facts and’ law, the plaintiff has shown no right to relief. The district court may then determine the facts and render judgment against the plaintiff -and in favor of the moving party or may decline to render any judgment until the close of all the evidence. The.district court’s purely discretionary decision to deny a motion for involuntary dismissal at the close of a plaintiffs case leaves nothing for this court to review on appeal. Pierrotti v. Johnson, 16-0204 (La. App. 1 Cir. 10/28/16), 2016 WL 6330423 at *12 (unpublished), writ denied, 17-0002 (La. 2/10/17), 216 So.3d 47; Townsend v. Delchamps, Inc., 94-1511 (La. App. 1 Cir. Í0/6/95), 671 So.2d 513, 514 n.1, writ denied, 95-2648 (La. 1/12/96), 667 So.2d 522.

Here, the district court, m its discretion, denied LDED’s motion to dismiss and heard all of the evidence presented before rendéring its decision on the merits. Thus, we have nothing to review on appeal with regard to that ruling. But, we note that LDED’s appeal was expressly taken from the district court’s January 27, 2017 final judgment, which was rendered after all evidence was. presented. And, after reading LDED’s appellate brief, it is clear that LDED’s first assignment of error is a challenge to the district court’s final judgment finding LDED liable to Mrs. Ba-deaux rather than just a challenge to the district court’s denial of the motion for involuntary dismissal. Under LSA-C.C.P. art. 2164, an appellate court shall render any judgment that is just, legal, and proper upon the record on appeal. Thus, under LSA-C.C.P. art. 2164, we will review the district’s court ultimate finding of LDED’s liability to Mrs. Badeaux. i

LIABILITY OF A PUBLIC ENTITY FOR A THING WITHIN ITS .CUSTODY

Tort claims against a public entity may be pursued as negligence under LSA-C.C. art. 2315, or as strict liability under LSA-R.S. 9:2800, LSA-C.C. arts. 2317, and 2317.1. Under either theory, the legal analysis is the same. Fontenot v. Patterson Ins., 09-0669 (La. 10/20/09), 23 So.3d 259, 267. The plaintiff must prove: (1) LDED had custody of the thing that caused plaintiffs damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the LDED had actual or constructive notice of the defect and failed to timely take corrective measures; and (4) the defect caused the plaintiffs injury. LSA-R.S. 9:2800C; LSA-C.C. arts. 2317 and 2317.1; Cotton v. State Farm Mut. Auto. Ins. Co., 10-1609 (La. App. 1 Cir. 5/6/11), 65 So.3d 213, 217, writ denied, 11-1084 (La. 9/2/11), 68 So.3d 522.

LDED does not dispute that it had custody of the C-stand or that the C-stand caused injury to Mrs. Badeaux. However, it argues Mrs. Badeaux failed to prove the C-stand created an unreasonable risk of harm or that LDED had notice that the C-| sstand created an unreasonable risk of harm. A trier of fact’s findings regarding defect (unreasonable risk of. harm) and notice under LSA-R.S. 9:2800 are subject to the manifest error standard of review. Id.

In finding LDED liable to Mrs. Ba-deaux, the district court gave the following reasons for its judgment:

The. Court, finds that the defendant had actual knowledge that the [C-stand] was being used for a purpose other than what it was intended to be used despite the fact that there had not been any other accidents that arose from using the [C-stand] as a clothing rack. The Court finds that directing the plaintiff to use the stand as a clothing rack created an unreasonable risk of harm that lead to the object falling onto the plaintiff causing her injuries. Under the facts of this case, the Court further finds that the defendant had an obligation to warn the plaintiff that the [C-stand] which she was instructed to use for a clothing rack was not designed to be used as a clothing rack. Therefore, the Court finds that the defendant is partially liable 75% for the plaintiffs damages. This Court finds that the plaintiff should have had some knowledge that the [C-stand] was not in fact a clothing stand and was not being used for the purpose for which it was intended to be used; Therefore, the Court finds that the plaintiff is comparatively at fault 25% for the damages she sustained.

At trial, Mr. Dupree described- a C-stand as a “common use stand in the film and video industry, ... used for everything from supporting very large equipment, to small equipment, to providing places to hang things.” And, in an earlier deposition, Mr, Dupree described the C-stand at issue here as a “standard movie C-stand” consisting of “a stand and a knuckle at the top and an arm, which has another knuckle that you can grip things with so that you can extend that out and clamp it onto things.” He explained that the C-stand is used for “pretty much ... anything and everything on a film or video shoot,” including to hold backgrounds, lighting filters, flags, and hanging clothes. He admitted that a C-stand is not a clothing rack, but explained' that LDED used the C-stand as a replacement for a clothing rack, because a clothing rack “is only good for holding clothes,” whereas a C-stand is “good for doing a hundred different things.” Mr. Dupree explained that, while at LDED, he had shot 50 or 60 videos, and hundreds of persons had hung clothes on a C-stand without incident. He stated that he did not direct actors, including Mrs. Badeaux, where on the C-stand to hang their clothes, but explained that “normally what they would do is ... hang them oh the knuckle, the center knuckle.” He was “pretty sure” | (¡however that Mrs. Badeaux hung her clothes on the rod or arm part of the C-stand. He also stated that, when he caught the C-stand after it struck Mrs. Badeaux, he slid her clothes to the center toward the “ball” in the middle of the C-stand and the C-stand then stood with the clothes on it.

There is no evidence showing the C-stand at issue was imperfectly designed or constructed, or was broken in some manner, so as to create an unreasonable risk of harm as a C-stand; but, we agree with the district court that, as a clothing rack, the C-stand created an unreasonable risk of harm to Mrs. Badeaux. Mr. Dupree instructed her to use the C-stand as a clothing rack, and his instruction to her included the implication that the C-stand was capable of serving that purpose. Mr. Dupree’s testimony showed that he knew actors generally hung their clothes near the center knuckle of the C-stand; thus, he^ knew this was the correct way to use the C-stand when hanging clothes. And, in fact, he demonstrated this knowledge when he caught the falling C-stand and moved Mrs. Badeaux’s clothes toward the center. His instruction to Mrs. Badeaux to use the C-stand as a clothing rack, without more specifically telling her to hang her clothes near the center knuckle, is what created the unreasonable risk of harm in this case. Accord LSA-R.S. 9:2800.57 (in a products liability case, a product may be unreasonably dangerous because the manufacturer failed to give an adequate warning about a characteristic of the product that may cause damage).

Based on the particular circumstances of this case, we conclude the district court did not manifestly err in its findings regarding a defect or LDED’s notice of the defect. This assignment of error is without merit.

GENERAL DAMAGES -

In its second assignment of error, LDED contends the district court erred in finding Mrs. Badeaux sustained $41,655 in general damages, because the evidence showed that not all of her medical expenses were attributable to the December 14, 2010 accident. Although LDED disputes the causal connection between the accident and certain medical expenses, LDED did not assign error to the district court’s special |7damage award, of which medical expenses are a part. Thus, we limit our review to that which LDED assigned as error — the amount of the general damage award.

General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be definitively measured in terms of money. Mack v. Imperial Fire and Cas. Ins. Co., 14-0597 (La. App. 1 Cir. 11/7/14), 167 So.3d 691, 696. The trier of fact is accorded vast discretion in fixing a general damage award. LSA-C.C. art. 2324.1; Purvis v. Grant Parish School Bd., 13-1424 (La. 2/14/14), 144 So.3d 922, 927. This vast discretion is such that an appellate court should rarely disturb a general damage award. Id. at 927-28. Thus, the appellate court’s role 'is not to decide what it considers to be an appropriate award, but rather to review the trier of fact’s exercise of discretion. Id. at 928. To properly review the district court’s general damages award, we summarize the evidence supporting the award as follows.

On December 15, 2010, the day after the incident, Mrs. Badeaux saw her primary care physician, Dr. Lara Falcon, who noted tenderness and bruising in the right temple area and told Mrs. Badeaux to let her know if more serious symptoms developed. In February 2011, Mrs. Badeaux returned to Dr. Falcon complaining that, about two weeks after the December 2010 incident,' she began to.have quick, non-severe pain or pressure in her right temple, sometimes occurring up to 20 times per day. Dr. Falcon ordered an MRI and an MRA of Mrs. Badeaux’s brain, which returned normal, and in April 2011, when the pains continued, Dr. Falcon referred her to Dr. Brian Murphy, a neurologist.

Dr. Murphy saw Mrs. Badeaux- in mid-May 2011 with continuing complaints of right temporal pressure headaches occurring 10-15 times per day. Dr. Murphy diagnosed' Mrs. Badeaux with a mild concussive head injury and chronic post-traumatic headaches attributable to the December 2010 incident. He prescribed pain medication, which reduced her headaches, but because of side effects, she decided to discontinue the medication about five weeks later. Mrs. Badeaux also saw ^neurologist Dr. Gerard Dynes in July 2011 with complaints of headaches, but the evidence is not clear as to what diagnosis or treatment he gave.

At a November 2013 deposition, Mrs. Badeaux reported continuing sharp shooting pains but was taking no medication. She stated that her only treatment for the last year had been acupuncture. She also stated that the pains woke her up at night, caused her to lose sleep, made her distracted, and made her irritable with family members. In May and November 2014, Drs. Falcon and Dynes noted in their records that Mrs. Badeaux still had headaches, but they were not frequent nor regular enough to require medication. At the time of trial, in December 2016, Mrs, Badeaux testified that she still had the sharp shooting pains. Although she sometimes will go days without any pains, she estimated that they occur “three, ten, fifteen a week; it just depends.”

Based on our review of the record, we conclude the district court’s finding that Mrs. Badeaux sustained $41,655 in general damages does not constitute an abuse of discretion, Dr. Murphy opined that Mrs. Badeaux suffered a concussive head injury and chronic headaches that were attributable to the blow on her head by the C-stand, and Dr. Falcon agreed with Dr. Murphy’s diagnosis. At First, Mrs. Bar deaux’s headaches occurred up to 20 times per day. About three years later, when her deposition was taken, her headaches had decreased in frequency and she was taking no medication. About four years later, both Drs. Falcon and Dynes noted that the headaches continued but were infrequent, irregular, and required no medication. And, at trial, about six years after the incident, Mrs. Badeaux continued to experience sharp shooting pains. Thus, even though Mrs. Badeaux’s medical records may suggest that she sought no medical treatment for her headaches after 2012, the record ■ clearly shows that the pains lasted at least six years and affected her quality of life. The general damage award for Mrs. Badeaux’s physical pain, inconvenience, |9and other lifestyle losses, was within the district court’s vast discretion. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the January 27, 2017 judgment is affirmed. We assess appeal costs in the amount of $964.50 to the Louisiana Department of Economic Development.

AFFIRMED.

      . In January 2013, Mrs. Badeaux returned to Dr. Dynes after a picture frame fell from the wall and hit her on the top of the head. Although the top of Mrs, Badeaux’s head hurt for about a day after the January 2013 accident, she testified at trial that that pain was different than the sharp, shooting pains from the December 2010 accident.


text:
    STATE of Louisiana v. Cornelius Tyrone KIRSH
    NO. 2017 KA 0231
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 01, 2017

      Warren L. Montgomery, District Attorney Matthew Caplan, Assistant District Attorney Covington, Louisiana
    Attorneys for PlaintifflAppellee, State of Louisiana
    Peter “Q” John Baton Rouge, Louisiana
    Attorney for Defendant/Appellant, Cornelius Tyrone Kirsh
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

I j),The defendant, Cornelius T. Kirsh, was convicted of attempted aggravated obstruction of a highway (count one) and aggravated flight from an officer (count two). He was adjudicated a second-felony habitual offender and sentenced to seven years at hard labor on count one and four years at hard labor, without probation or suspension of sentence, on count two. The state filed a second habitual offender bill of information for count two, and for that count the defendant was adjudicated a third-felony habitual offender. The prior sentence for count two was vacated, and the defendant was sentenced to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant appeals . alleging two counseled assignments- of error and one pro se assignment of error. We affirm the convictions, habitual offender adjudication on count two, and sentences.

FACTS AND PROCEDURAL HISTORY

On the afternoon of Juiy 30, 2014, Slidell Police Officers Bradford Hoops and Donald Nunez, in separate vehicles, were dispatched to the area of U.S. Highway 190 (Gause Boulevard) and Walnut Street in response to a report of a suspicious vehicle, described as a white SUV, and a disturbance possibly involving a weapon. The officers approached Walnut Street from Cypress Street with their lights and sirens activated. Officer Hoops turned left onto Walnut Street traveling south, while Officer Nunez turned right onto Walnut Street, then left onto Beechwood Drive, and, at that point, also .began traveling south. Beechwood Drive contains a curve and eventually intersects again with Walnut Street in the [¡¡direction both officers were traveling. The speed limit in the area is twenty miles per hour.

As Officer Hoops drove south oh Walnut Street, he observed a white SUV traveling towards him in a northerly direction at an estimated speed of 50 miles per hour and accelerating. The SUV drove off the roadway to the right and then made a hard left turn onto Beechwood Drive, hitting a curb and driving in the opposing lane of travel. Officer Hoops turned right on Beechwood Drive behind the vehicle, which was still traveling well above the speed limit as it encountered and passed a group of children on the left side of Beechwood Drive.

Officer Nunez, traveling south on Beechwood Drive, saw the white SUV coming towards him at a high rate of speed and in the wrong lane of travel. The SUV came to a stop, and as Officer Nunez positioned his patrol vehicle to block the SUV, a .passenger fled the vehicle. Officer Nunez exited his patrol vehicle and held the two remaining occupants of the SUV at gunpoint. Officer Hoops arrived and briefly chased the fleeing individual before returning to assist Officer Nunez. Upon approaching the SUV, both officers detected an odor of gunpowder. The defendant was identified as the driver of the vehicle, and his juvenile brother was a passenger. The police did not recover a weapon and did not apprehend, the individual who fled the scene.

DISCUSSION

Sufficiency of the Evidence

In his first counseled and only pro se assignment of • error, the defendant contends the evidence is insufficient to support his convictions. In particular, he argues the state failed to prove he intentionally or negligently placed anyone’s life in danger (attempted aggravated obstruction of a highway), intentionally refused to bring his car to a stop (aggravated- flight from an officer), and committed any of the pacts enumerated in the aggravated flight from an officer statute that endanger human life.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence, both admissible and inadmissible, viewed in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Oliphant, 13-2973 (La. 2/21/14), 133 So.3d 1255, 1258; see also La. Code Crim. Pro. art. 821B; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). When circumstantial evidence forms the basis of the conviction, the evidence “assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438; Oliphant, 133 So.3d at 1258.

The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. State v. Mire, 14-2295 (La. 1/27/16), — So.3d —, —, 2016 WL 314814. Rather, appellate review is limited to determining whether the facts established by the direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Alexander, 14-1619 (La. App. 1 Cir. 9/18/15), 182 So.3d 126, 129-30, writ denied, 15-1912 (La. 1/25/16), 185 So.3d 748. The weight given evidence is not subject to appellate review; therefore, evidence will not be 'reweighed by an appellate court to overturn a fact finder’s ^determination .of guilt. State v. Wilson, 15-1794 (La. App. 1 Cir. 4/26/17), 220 So.3d 35, 41.

Attempted Aggravated Obstruction of a Highway of Commerce

Aggravated obstruction of a highway of commerce, in relevant part, ⅛ the intentional or criminally negligent placing of anything or performance of any act on any road or highway wherein it is foreseeable that human life might be endangered. See La. R.S. 14:96A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, • under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27A. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt. La. R.S. 14:270,

Officer Hoops testified the defendant drove at a high rate of speed near a group of twenty to thirty children who were near the curve in Beechwood Drive. Describing that portion of the chase, Officer Hoops testified:

[When the defendant] drove past those children [it] is one of the times I have been most scared for the lives of young children at the hands of another motorist that I’ve actually witnessed for myself in my 13 years of law enforcement.

Officer Nunez testified the SUV was still traveling well above the speed limit as it rounded the curve and came into his view as he. approached from the opposite direction..

In contrast, the defendant and his brother testified that the defendant was driving safely. The defendant estimated his top speed to be 35 miles per' hour, and his brother stated the vehicle Wás traveling 20 or 25 miles per hour. They denied Rthat any children were in the area of the incident and denied any knowledge of why the police would be interested in their vehicle.

Presented with.this conflicting testimony, the jury could have reasonably concluded the defendant was traveling at a high rate of .speed .on a neighborhood street in close proximity to children, and his actions were intentional or criminally negligent and foreseeably endangered human life. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder’s determination of guilt. State v. Taylor, 97-2261 (La. App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984). Here, the verdict reflects the jury’s reasonable rejection of defendant’s theory that he operated his vehicle in a completely safe manner. In accepting a hypothesis of innocence that was not unreasonably rejected by the factfinder, a court of appeal impinges on a factfinder’s discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. See Mire, — So.3d at -. An appellate court errs by substituting its appreciation of the evidence |7and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the factfinder. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). We cannot say the jury’s determination was irrational under the facts and circumstances presented to it. See State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 662.

Sufficient evidence was presented to convict the defendant of aggravated obstruction of a highway of commerce; therefore, the evidence is also sufficient to support the defendant’s conviction for the responsive offense of attempted aggravated obstruction of a highway. See La. R.S. 14:96A and 14:27C. This portion of defendant’s first assignment of error is without merit.

Aggravated Flight from an Officer

Aggravated flight from an officer, in relevant part, is the intentional refusal of a driver to bring a vehicle to a stop under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe the driver or operator has committed an offense. La. R.S. 14:108.1C. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle. La. R.S. 14:108.1C. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle commits at least two of the following acts: leaves the roadway or forces another vehicle to leave the roadway, collides with another vehicle or watercraft, exceeds the posted speed limit by at least 25 miles per hour, travels against the flow of traffic, fails to obey a stop sign or a yield sign, or fails to obey a traffic control signal device. La. R.S. 14:108.1D. These exclusive aggravating factors elevate the crime of flight from an officer. |sfrom a misdemeanor to a felony. See State v. Williams, 07-0931 (La. 2/26/08), 978 So.2d 895, 896 (per curiam).

Officers Hoops and Nunez engaged their emergency lights and sirens before turning onto Walnut Street. Officer Hoops first saw the white SUV coming towards him on Walnut Street. The vehicle was traveling about 50 miles per hour, or 30 miles per hour above the speed limit, and “continued to accelerate at an extremely high rate of speed.” Officer Hoops described the vehicle’s turn onto Beechwood Drive as follows:

A. [The] vehicle then pulled far to the right, cut the corner going into the opposing lane of traffic, turned the corner at a high rate of speed, went over — it looked like it hit the curb but it made a bump and it continued this way, and I accelerated to try to catch up with the vehicle.
Q.. Now was it on the wrong side of the travel road at any point in time in that?
A. Yes, sir, it was.
Q. Did it leave the roadway?
A. It appeared that way, yes.

Officer Nunez testified that when the defendant’s vehicle rounded the curve on Beechwood Drive, the vehicle was in the wrong lane of travel and was going about 40 to 45 miles per hour.

The defendant denies these actions and argues he did not stop his vehicle in response to sirens and emergency lights, because he did not realize the officers were pursuing him. According to the defendant, he did not believe he was supposed to stop for Officer Hoops’ police car because it was so far down Walnut Street and was approaching in a head-on manner, rather than from behind.

Initially, we note that upon the immediate approach of an authorized emergency vehicle making ‘use of audible or visual signals, the driver of every |sother vehicle is required to yield the right-of-way and immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, unless otherwise directed by a police officer. Se'e La. R.S. 32:125A. The defendant did not take this action. Instead, according to Officer Hoops’ testimony, the defendant accelerated, drove off the roadway, then made a hard léft turn into the oncoming lane of Beechwood Drive. The defendant continued driving at a high rate of speed away from Officer Hoops until encountering Officer Nunez’s véhicle approaching from the opposite direction on Beechwood Drive. Only then did the defendant stop his vehicle.

The testimony indicates the defendant saw Officer Hoops’ police car, with its emergency lights and siren engaged, and responded by accelerating his vehicle to a speed in excess of twenty-five miles per hour over the speed limit. He then ran off the roadway to the right, made a hard left turn, and traveled against the flow of traffic. This evidence supports a finding that defendant, knowing he had been given a visual and audible signal to stop by a police officer, intentionally refused to stop his vehicle and committed at least three of the enumerated acts “circumstances wherein human life is endangered.” See La. R.S. 14:108.10 and D. The jury reasonably rejected defendant’s hypotheses of innocence that he was unaware of his obligation to stop for Officer Hoops and that he did not commit any of the acts proscribed by . Louisiana Revised Statute 14:108.1D. We cannot say the jury’s determination was irrational under the facts and circumstances presented; to it. Ordodi, 946 So.2d at 662, This portion of defendant’s first assignment of error is also without merit.

Double Jeopardy

| inThe state raises the issue of double jeopardy, proposing that the evidence supporting the two convictions' is essentially the same; therefore, the conviction for attempted aggravated obstruction of a highway should be set aside. We ordered the defendant to file a supplemental brief and address the issue of double jeopardy. In his supplemental brief, the defendant joins the state, arguing his convictions for attempted aggravated obstruction of a highway and aggravated flight from an officer violate the. prohibition against double jeopardy, and alleges the evidence required to support a conviction for aggravated flight from an officer is sufficient to warrant a conviction for attempted aggravated obstruction of a highway. We disagree.

Both the federal and state constitutions provide that no person shall twice be put in jeopardy of life or liberty for the same offense. U.S. Const. amend. V; La. Const. art. I, § 15. The Double Jeopardy Clause protects the accused against multiple punishments for the same offense as well as a second prosecution for the same offense after acquittal or conviction. State v. LeBlanc, 618 So.2d 949, 957 (La. App. 1 Cir. 1998), writ denied, 95-2216 (La. 10/4/96), 679 So.2d 1372.

As recently clarified, by our supreme court, Louisiana. uses the “Block-burger test” to determine whether double jeopardy exists. See State v. Frank, 16-1160 (La. 10/18/17), 234 So.3d 27, 2017 WL 4681941. Under Bloekburger, where the same act or transaction constitutes a violation of two' distinct statutory provisions, the test to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

The prohibition against double jeopardy is not violated, however, when the' defendant is prosecuted for different criminal acts committed during one sequential, continuing course of conduct. See City of Baton Rouge v. Jackson, 310 So.2d 596, 11598 (La. 1975); State v. Staden, 14-0459 (La. App. 1 Cir. 9/24/14), 154 So.3d 579, 584, writ denied, 14-2254 (La. 6/5/15), 171 So.3d 945; State v. Letell, 12-0180 (La. App. 1 Cir. 10/25/12), 103 So.3d 1129, 1137, writ denied, 12-2533 (La. 4/26/13), 112 So.3d 838. In those instances, the defendant is not being punished twice for the same act. Rather, he has committed and can be prosecuted for separate crimes attributable to separate and distinct acts that occurred successively. See Jackson, 310 So.2d at 598-99; Staden, 154 So.3d at 584; see also State v. Martin, 11-1843 (La. App. 1 Cir. 5/2/12), 92 So.3d 1027, 1032, writ denied, 12-1244 (La. 11/9/12), 100 So.3d 836 (“Because the evidence showed that two separate crimes occurred, each of which could have been proven without any evidence as to the other, no double jeopardy violation occurred.”).

The jurisprudence contains numerous examples of prosecutions for multiple offenses, each separate.and distinct, committed by a defendant while operating a motor vehicle in one continual event. In Jackson, the defendant was charged with running a flashing red light and driving while intoxicated. After pleading guilty to running the red light, the defendant filed a motion to quash, the, DWI prosecution based on a plea of double jeopardy. Jackson, 310 So.2d at 597-98. Pointing out that his traversal of the intersection without stopping coincided with his driving while intoxicated, the defendant argued that the identical conduct, having already been punished based on his plea to running the red light, could not again be punished as the offense of driving while intoxicated. Jackson, 310 So.2d at 599. The trial court granted the motion, but the supreme court reversed. Reiterating that double jeopardy does not protect an offender who goes on a crime, spree and violates numerous statutory provisions, the supreme court recognized that the state may be able to prove the defendant operated his vehicle while intoxicated at some point other than when he disregarded the red light, explaining:

halt is quite conceivable that the state will prove operation of a motor vehicle while intoxicated for some point in time other than at the involved intersection. It is further likely that the state will prove (or attempt to prove) that the defendant operated the' motor vehicle while intoxicated, with evidence well beyond simply his having been observed traversing the intersection without, having stopped for the flashing red light.
In this case it does not appear that one offense is a lesser included offense of the other, nor does it appear that the evidence necessary to support a conviction on one charge would necessitate an acquittal on the other charge or invoke collateral estoppel. The fact that some evidence may be the same in each prosecution is of no moment, under these circumstances.

Jackson, 310 So.2d at 600.

Similarly, in State v. Williams, 07-0931 (La. 2/26/08), 978 So.2d 895 (per curiam), the defendant was charged with aggravated flight from an officer and multiple traffic offenses arising out of the same incident. The defendant pled guilty to the traffic offenses and, citing double jeopardy, sought to quash the prosecution for aggravated flight from an officer, arguing that “it would subject him to trial for the same conduct for which he had previously been convicted and punished.” Williams, 978 So.2d at 895. The trial court denied the motion to quash, and the defendant entered a plea of guilty as charged, reserving his right to appeal the adverse ruling. After the court of appeal reversed the trial court’s ruling, the supreme court reinstated, the conviction and sentence. Williams, 978 So.2d at 899. Citing actions by the defendant that, independent of the traffic offenses, would be sufficient to establish at least two of the essential aggravating factors necessary for a conviction for aggravated flight from an officer, the supreme court stated:

In the present- case, the information contained in the' police report held open the possibility that a rational trier of fact, considering all of the evidence presented at trial, could have found that defendant engaged in conduct giving rise to a risk to human life by first traveling against the flow of traffic however briefly when he backed away from Officer McCartney and nearly collided with the patrol unit occupied by Officers Hill and Matthews and. then forced other vehicles from the 11sroad in the. ensuing high-speed chase , with the officers. Thus, from a functional perspective offered by.the information contained in the, police- .report, defendant’s guilty .plea to . aggravated flight from an officer did not necessarily subject .him to a second prosecution for conduct as to which he had already been prosecuted.- -

Williams, 978 So.2d at 898-99. See also State v. Bates, 37,282 (La. App. 2 Cir. 10/16/03), 859 So.2d 841, 849, unit denied, 04-0141 (La. 5/21/04), 874 So.2d 173 (defendant’s convictions arising out of a car chase for aggravated flight from an officer and aggravated criminal damage to property did not violate double jeopardy); State v. Jones, 12-0565 (La. App. 4 Cir. 4/24/13), 115 So.3d 643, 650 (guilty pleas to traffic offenses did not bar prosecution for aggravated flight from an officer during the same incident, where the traffic offenses did not involve the acts enumerated in La. R.S. 14:108.1D).

The evidence in this case similarly establishes multiple, distinct criminal acts while the defendant attempted to evade police. According to Officer. Hoops, as the defendant approached the turn from Walnut Street onto. Beachwood Drive, he reacted to the sight of Officer Hoops’ police car by rapidly accelerating his vehicle to a speed that exceeded the speed limit by 25 miles per hour. He then veered his vehicle off the roadway to the right, then turned sharply to the left onto Beechwood Drive, traveling in the wrong lane of travel. That conduct alone satisfies three of the aggravating elements for aggravated flight from an officer and supports a conviction for that offense. See La. R.S. 14:108.1D. The defendant then proceeded down Beechwood Drive through a residential neighborhood at an excessive rate of speed, passing precariously close to a group of children standing near the road. That act foréseeably endangered human life and independently supports a conviction for at’-tempted aggravated obstruction of a roadway. See La. R.S. 14:96A. Rather than being punished twice for the same offense, the evidence shows that two successive but separate crimes occurred and were independently proven. The defendant’s l uconvictions for aggravated flight from an officer and attempted aggravated obstruction of highway do not constitute double jeopardy.

Excessive Sentence

In the remaining counseled assignment of error, the defendant, contends the habitual offender sentence on count two is unconstitutionally excessive. The record establishes the defendant did not make or file a motion to reconsider sentence following the trial court’s imposition of the sentence. Under Louisiana Code of Criminal Procedure articles 881.1E and 881.2A(1), the failure to make or file a motion to reconsider sentence precludes the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. See State v. Mims, 619 So.2d 1059 (La. 1993) (per curiam). The defendant is procedurally barred from having this assignment of error' reviewed. See State v. Bell, 14-1046 (La. App. 1 Cir. 1/15/15), 169 So.3d 417, 424; State v. Duncan, 94-1563 (La. App. 1 Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc, per curiam). The defendant’s second assignment of error is not reviewable on appeal.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.

      . The defendant was also convicted of possession of a firearm by a convicted felon; however, the trial court granted a new trial on that conviction, which is not before the court in this appeal.

      . The predicate convictions were two February 7, 2011 convictions for simple robbery in St. Tammany Parish, bearing docket numbers 488694 and 489946 in the Twenty-Second Judicial District Court.